Mark Jensen v. Marc Clements ( 2015 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 14-1380
MARK D. JENSEN,
Petitioner-Appellee,
v.
MARC CLEMENTS,
Respondent-Appellant.
____________________
Appeal from the United States District Court for the
Eastern District of Wisconsin.
No. 11 CV 00803 — William C. Griesbach, Chief Judge.
____________________
ARGUED OCTOBER 30, 2014 — DECIDED SEPTEMBER 8, 2015
____________________
Before WILLIAMS, TINDER, and HAMILTON, Circuit Judges.
WILLIAMS, Circuit Judge. Julie Jensen’s handwritten letter
to the police was “a make or break issue,” an “essential
component of the State’s case,” and of “extraordinary value”
to “the central issue in this case.” Those are not the court’s
words, but the words of the State, as it fought for the admis-
sion of the letter before it placed Mark Jensen on trial for his
2 No. 14-1380
wife Julie’s murder. The State maintained at trial that Jensen
killed his wife and framed it to look like suicide. Jensen’s de-
fense was that his wife, depressed, and unhappy in mar-
riage, committed suicide and made it look like her husband
had killed her. A key piece of evidence at trial was Julie’s
handwritten letter to the police, written two weeks before
her death, in which she wrote that she would never take her
life and that her husband should be the suspect if anything
should happen to her.
As a later-decided United States Supreme Court case,
Giles v. California, 554 U.S. 353 (2008), made clear, this letter
and other accusatory statements she made to police in the
weeks before her death regarding her husband should never
have been introduced at trial. The Wisconsin appellate court
found the error in admission to be harmless. Jensen now
seeks a writ of habeas corpus, which he may only receive if
the Wisconsin appellate court’s adjudication of the claim
“resulted in a decision that was contrary to, or involved an
unreasonable application of, clearly established Federal law,
as determined by the Supreme Court of the United States,”
or “resulted in a decision that was based on an unreasonable
determination of the facts in light of evidence presented in
the State court proceeding.” 28 U.S.C. § 2254(d). We agree
with the district court that the Wisconsin appellate court’s
harmless error determination reflects an unreasonable appli-
cation of the Chapman v. California, 386 U.S. 18 (1967), harm-
less error standard. The erroneous admission of Julie’s letter
and statements to the police had a substantial and injurious
influence or effect in determining the jury’s verdict. So we
affirm the district court’s grant of Jensen’s petition for a writ
of habeas corpus.
No. 14-1380 3
I. BACKGROUND
Two weeks before her death, Julie Jensen gave a sealed
envelope to her neighbors, Tadeusz and Margaret Wojt, and
told them that if anything happened to her, they should give
the envelope to the police. The day of Julie’s death, the Wojts
did just that. The envelope contained a handwritten letter
with Julie’s signature that read:
Pleasant Prairie Police Department, Ron Kosman or
Detective Ratzburg,
I took this picture [and] am writing this on Saturday 11-
21-98 at 7 AM. This “list” was in my husband’s busi-
ness daily planner—not meant for me to see, I don’t
know what it means, but if anything happens to me, he
would be my first suspect. Our relationship has deteri-
orated to the polite superficial. I know he’s never for-
given me for the brief affair I had with that creep seven
years ago. Mark lives for work [and] the kids; he’s an
avid surfer of the Internet
Anyway, I do not smoke or drink. My mother was an
alcoholic, so I limit my drinking to one or two a week.
Mark wants me to drink more—with him in the eve-
nings. I don’t. I would never take my life because of my
kids—they are everything to me! I regularly take Ty-
lenol [and] multi-vitamins; occasionally take OTC stuff
for colds, Zantac, or Immodium; have one prescription
for migraine tablets, which Mark use[s] more than I.
I pray I’m wrong [and] nothing happens … but I am
suspicious of Mark’s behaviors [and] fear for my early
demise. However, I will not leave David [and] Douglas.
4 No. 14-1380
My life’s greatest love, accomplishment and wish: “My
3 D’s”—Daddy (Mark), David, Douglas.
Julie had made other similarly accusatory statements to
the police in the weeks before her death as well. She left two
voicemails for Officer Ron Kosman, stating in the second
that she thought her husband was trying to kill her. (She left
this message on a voicemail despite Officer Kosman’s mes-
sage on his voicemail that he was out of the office on a hunt-
ing trip and would not check messages until his return.) Of-
ficer Kosman then visited Julie, and she told him she had
given a letter to the Wojts along with a roll of film with pho-
tographs she had taken of Jensen’s day planner, evidently to
include the “list” in his planner referenced in her letter. She
retrieved the film and gave it to Officer Kosman, but the po-
lice were unable to connect the photographs of the pages of
Jensen’s day planner to anything connected to the case. Julie
also told Officer Kosman that if she were to be found dead,
she did not commit suicide, and Jensen was her first suspect.
She made statements to others as well including the Wojts
and her son’s teacher that she worried her husband was go-
ing to kill her.
Julie was found dead in the home she shared with her
husband and their two sons on December 3, 1998. The first
autopsy did not reveal a cause of death, and the case was ini-
tially treated as a suicide. A search of the Jensens’ home
computer yielded internet searches for suicide and poison-
ing, including a search at 7:40 am on December 3 for “eth-
ylene glycol poisoning.” Ethylene glycol, commonly known
as antifreeze, was found in Julie’s system. But the toxicolo-
gist (Dr. Christopher Long)’s initial characterization was
badly off. He described the 3,940 micrograms per milliliter of
No. 14-1380 5
ethylene glycol in the 660 ml of her gastric contents as a
“large concentration of ethylene glycol.” His report reached
the conclusion that Julie’s death was not a suicide, and he
reached this conclusion by relying on factors including that
Julie’s stomach contained significant amounts of ethylene
glycol, showing that her death occurred at or near the time
of administration; she would have been too weak to drink
the amount of ethylene glycol in her stomach without assis-
tance; and she would have been too weak to hide the eth-
ylene glycol container after her final dose. But in reality, the
660 ml of her stomach contents contained only a half tea-
spoon of ethylene glycol, or .083 ounces, so it was not a
“large concentration.” Dr. Long’s mistake destroyed the
foundation of his opinion that Julie’s death was not a sui-
cide, i.e., that she could not have consumed that large a
quantity of ethylene glycol on her own. The computer search
also revealed numerous emails between Jensen and a wom-
an with whom he was having an affair.
In March 2002, over three years after Julie’s death, Jen-
sen was charged with first-degree intentional homicide. Dr.
Mark Chambliss, the doctor who conducted an autopsy, said
at trial for the first time that the cause of death was asphyxia
by smothering, and a medical examiner concluded that the
cause of death was ethylene glycol poisoning with probable
terminal asphyxia. From the beginning, the parties contested
the admissibility of Julie’s letter and her statements to Of-
ficer Kosman in the weeks before her death. The State con-
ceded that the voicemails Julie left for Officer Kosman were
inadmissible hearsay. The Wisconsin state trial court ruled
that Julie’s letter was admissible in its entirety. After the Su-
preme Court decided Crawford v. Washington, 541 U.S. 36(2004), Jensen moved for reconsideration. The trial court
6 No. 14-1380
granted Jensen’s motion for reconsideration, ruling that Ju-
lie’s letter and statements to Officer Kosman were testimoni-
al and therefore not admissible under Crawford because the
declarant was unable to testify at trial and there was no prior
opportunity for cross examination. The court also rejected
the State’s argument that the letter and Julie’s statements
were admissible under the doctrine of forfeiture by wrong-
doing.
The State appealed the trial court’s order and petitioned
for bypass directly to the Wisconsin Supreme Court. On Feb-
ruary 23, 2007, the Wisconsin Supreme Court agreed that the
letter and statements to police were testimonial, but it also
ruled that the trial court erred in its analysis of whether the
statements were admissible under the forfeiture by wrong-
doing doctrine. State v. Jensen, 727 N.W.2d 518, 536-37 (Wis.
2007) (“Jensen I”). The Wisconsin Supreme Court adopted “a
broad forfeiture by wrongdoing doctrine, and conclude[d]
that if the State can prove by a preponderance of the evi-
dence that the accused caused the absence of the witness, the
forfeiture by wrongdoing doctrine will apply to the confron-
tation rights of the defendant.” Id. at 536. The court remand-
ed for a hearing to determine the application of the doctrine
in Jensen’s case. Id. at 537.
On remand, after a ten-day hearing, the trial court
found by a preponderance of the evidence that Jensen killed
Julie, causing her absence from trial, and so Jensen had for-
feited his right to confrontation with respect to the letter. 1 As
1 There are serious reasons to question this finding, however. For ex-
ample, the medical examiner Dr. Mary Mainland testified for the State
during the forfeiture hearing that murder was likely, and she testified
that Julie would have been too weak the day before she died to use the
No. 14-1380 7
a result, the letter and Julie’s statements to Officer Kosman
were admissible at trial.
The resulting six-week trial began more than nine years
after Julie’s death. The State introduced evidence concerning
Julie’s statements and actions in the days, weeks, and
months before her death, including her handwritten letter
and statements to Officer Kosman. The State also introduced
evidence that Jensen was having an affair and that he was
bitter about a brief affair Julie had seven years earlier. Two
of Jensen’s former co-workers testified that he had made in-
criminating statements to them. The State contended that
Jensen had made plans to murder his wife to have a future
with his mistress, wanted to avoid a messy divorce, and had
searched on the internet for ways to make Julie’s death look
like a suicide. The State also argued that Julie was a devoted
mother who would not have committed suicide. The State
maintained that Julie could not have ingested ethylene gly-
col by herself and that Jensen had suffocated her after she
showed signs of recovering from poison he had given her.
Surprisingly, this suffocation theory arose for the very
first time at the trial more than nine years after Julie’s death,
when it came up for the first time during Dr. Chambliss’s
redirect examination. Dr. Chambliss had performed an au-
topsy, and his report had not identified a cause of death. But
during redirect examination, the prosecutor showed Dr.
Chambliss photographs of Julie at the scene that appeared to
show Julie with an unnaturally bent nose. The prosecutor
telephone. But at trial Dr. Mainland admitted that she had been “mistak-
en” in her testimony during the forfeiture hearing because Julie did in
fact use the phone that day and had a telephone conversation with Mrs.
Wojt.
8 No. 14-1380
posed a hypothetical question to Dr. Chambliss. It asked him
to, among other things, “consider the manner in which the
face appears to be smashed into the pillow” and to consider
information from Jensen’s cellblock mate Aaron Dillard
(whose significant credibility concerns we will discuss later)
that Jensen “had shoved her face into the pillow and suffo-
cated her.” When the prosecutor asked whether Dr.
Chambliss had an opinion as to the cause of death in those
circumstances, Dr. Chambliss responded with the opinion,
for the first time, that the immediate cause of death would
be smothering. Yet the autopsy report did not report any
damage to Julie’s nose, and witnesses at the scene had not
observed anything unusual about her nose. As for Dr. Main-
land, she had testified at the forfeiture hearing that Julie died
from ethylene-glycol poisoning. Then five months later, at
trial, she too testified that Julie had been suffocated, based
on details from Dillard.
The defense account at trial was much different. It took
the position that Julie, depressed, had committed suicide by
poisoning herself but had made it look as though her hus-
band, from whom she was distant, had killed her. The de-
fense maintained that Julie was discouraging others from
worrying about her absence so they would not come to her
assistance. Julie had not been restrained or otherwise inca-
pacitated from seeking help, and ethylene glycol was a fairly
slow-acting poison, so the defense contended that Julie’s
failure to seek help was more consistent with suicide than
with murder.
The defense evidence included testimony from the
Jensens’ family doctor, who told the jury that during an ap-
pointment two days before her death, Julie “seemed de-
No. 14-1380 9
pressed and distraught and almost frantic, actually.” The ju-
ry heard Julie had a fifteen-minute conversation with her
neighbor, Mrs. Wojt, the day before her death in which she
told Mrs. Wojt not to worry if she did not see Julie outside
that day because she was not feeling well due to her medica-
tion. Julie also made a similar statement to her sister-in-law
three days earlier that she would be ill on December 2 be-
cause she expected to be put on medication by her doctor.
The defense also highlighted that although Julie had made
multiple statements saying she feared her husband was try-
ing to kill her, she did not call anyone or otherwise seek help
when she began to feel ill.
After thirty hours of deliberation, the jury convicted
Jensen of first-degree intentional homicide. Four months lat-
er, the United States Supreme Court decided Giles v. Califor-
nia, 554 U.S. 353 (2008), which adopted a narrower interpre-
tation of the Confrontation Clause than had the Wisconsin
Supreme Court in Jensen I. On the direct appeal of his con-
viction, Jensen argued that Giles made clear that Julie’s
handwritten letter and statements to the police were errone-
ously admitted.
In a December 29, 2010 ruling, the Wisconsin Appellate
Court “assume[d] that the disputed testimonial evidence
was erroneously admitted” in light of Giles but found that
any error was harmless, and it affirmed Jensen’s conviction.
State v. Jensen, 794 N.W.2d 482, 493 (Wis. App. Ct. 2010)
(”Jensen II”). The Wisconsin Supreme Court denied Jensen’s
petition for review. Jensen then filed a petition for a writ of
habeas corpus in federal district court. The district court
granted Jensen’s petition, and the warden appeals.
10 No. 14-1380
II. ANALYSIS
Jensen’s habeas petition is premised on his contention
that the admission of Julie’s handwritten letter and her accu-
satory statements to the police in the weeks before her death
violated his right to confrontation under the Sixth Amend-
ment to the United States Constitution. The Sixth Amend-
ment provides that “[i]n all criminal prosecutions, the ac-
cused shall enjoy the right … to be confronted with the wit-
nesses against him.” Ordinarily, a witness who makes testi-
monial statements against a defendant will be available at
trial for cross examination, and if not available then the wit-
ness’s earlier testimony will only be introduced at trial if the
defendant had an earlier opportunity to cross examine the
witness. See Crawford, 541 U.S. at 68.
The state trial court concluded that an exception to the
right of confrontation was present here because Jensen had
committed a wrongful act (murder) that made the witness
unavailable to testify at trial. But the Supreme Court subse-
quently held in Giles that the forfeiture by wrongdoing ex-
ception to the Confrontation Clause in the United States
Constitution applies only when the defendant engaged in
conduct designed to prevent the witness from testifying.
Giles, 554 U.S. at 359; see also id. at 367 (“Every commentator
we are aware of has concluded the requirement of intent
‘means that the exception applies only if the defendant has
in mind the particular purpose of making the witness una-
vailable.’”) (citation omitted). In other words, testimonial
hearsay statements for which no other exception applies
should be excluded if “the evidence suggested that the de-
fendant had caused a person to be absent, but had not done
so to prevent the person from testifying—as in the typical
No. 14-1380 11
murder cases involving accusatorial statements by the vic-
tim.” Id. at 361. The warden makes no argument that the let-
ter and statements were admissible under Giles. Indeed, the
State’s theory at trial was that Jensen killed his wife not to
prevent her from testifying, but because he wanted her dead.
Under Giles, the admission of Julie’s letter and statements to
the police, none of which were dying declarations, violated
the Confrontation Clause and was federal Constitutional er-
ror. The warden does, however, argue that Jensen cannot
benefit from Giles as a procedural matter, and we turn to that
argument now.
A. Giles Decided Before Claim Adjudicated on the
Merits by State Court
The parties dispute which Wisconsin state court decision
constitutes the relevant decision for Antiterrorism and Effec-
tive Death Penalty Act of 1986 (“AEDPA”) purposes. Under
AEDPA, habeas relief
shall not be granted with respect to any claim that was
adjudicated on the merits in State court proceedings un-
less the adjudication of the claim
(1) resulted in a decision that was contrary to, or in-
volved an unreasonable application of, clearly es-
tablished Federal law, as determined by the Su-
preme Court of the United States; or
(2) resulted in a decision that was based on an unrea-
sonable determination of the facts in light of the
evidence presented in the State court proceeding.
28 U.S.C. § 2254(d)(1) (emphasis added). Jensen argues that
the Wisconsin appellate court’s post-Giles decision is the last
state-court decision adjudicating his claim on the merits, and
12 No. 14-1380
he maintains our review under AEDPA is therefore of the
state appellate court decision.
The warden, however, argues that the last state court ad-
judication of the merits of Jensen’s Confrontation Clause
claim was the trial court’s 2007 decision concluding that the
disputed evidence was admissible under the forfeiture by
wrongdoing exception. Because the Supreme Court did not
decide Giles until 2008, the warden contends there is no deci-
sion contrary to clearly established Supreme Court case law
at the time, and so Jensen’s petition for habeas relief fails.
The state appellate court assumed that the disputed testimo-
nial evidence was erroneously admitted under Giles but
found that any error was harmless, and the warden main-
tains the state appellate court did not adjudicate the claim
“on the merits” because the decision was made on harmless-
error grounds. Jensen II, 794 N.W.2d at 493.
If the warden is correct that the trial court decision is the
relevant decision in this case, Jensen’s habeas request fails
because it is premised on Giles, which the Supreme Court
had not decided at the time of the trial court ruling. See Cul-
len v. Pinholster, 131 S. Ct. 1388, 1399 (2011) (measuring state-
court decisions against the Supreme Court precedents as of
the time the state court renders its decision); Knowles v. Mir-
zayance, 556 U.S. 111, 122 (2009) (stating it is not an unrea-
sonable application of clearly established federal law “for a
state court to decline to apply a specific legal rule that has
not been squarely established by this Court.”).
The United States Supreme Court’s recent decision in
Davis v. Ayala, 135 S. Ct. 2187 (2015), guides us here. There,
neither the criminal defendant nor his lawyer was given the
opportunity to be present during the hearings on his chal-
No. 14-1380 13
lenges to the prosecutor’s use of peremptory challenges to
exclude minority jurors, and he maintained that the ex parte
hearings violated his federal Constitutional rights. Id. at
2194-95. The California Supreme Court ruled that any error
was harmless beyond a reasonable doubt. Id. at 2195 (citing
People v. Ayala, 6 P.3d 193, 204 (Cal. 2000)). The United States
Supreme Court granted a petition for a writ of certiorari, and
one of the questions was “[w]hether a state court’s rejection
of a claim of federal constitutional error on the ground that
any error, if one occurred, was harmless beyond a reasona-
ble doubt is an ‘adjudicat[ion] on the merits’ within the
meaning of 28 U.S.C. § 2254(d), so that a federal court may
set aside the resulting final state conviction only if the de-
fendant can satisfy the restrictive standards imposed by that
provision.” Brief for Petitioner at i, Chappell v. Ayala, 135 S.
Ct. 401 (2014) (No. 13-1428), 2014 WL 2335007, at *i; see Chap-
pell v. Ayala, 135 S. Ct. 401 (Oct. 20, 2014) (granting petition
for writ of certiorari).
In its resulting decision, the Court stated that “[t]here is
no dispute that the California Supreme Court held that any
federal error was harmless beyond a reasonable doubt under
Chapman [v. California, 386 U.S. 18 (1967)].” Ayala, 135 S. Ct.
at 2198. The Court then ruled that “this decision undoubted-
ly constitutes an adjudication of Ayala’s constitutional claim
’on the merits.’” Id.That a state court holding of harmless error beyond a
reasonable doubt constitutes the adjudication of a claim on
the merits for AEDPA purposes makes sense. The Court has
previously explained that “as used in this context, the word
‘merits’ is defined as ‘[t]he intrinsic rights and wrongs of a case
as determined by matters of substance, in distinction from
14 No. 14-1380
matters of form.” Johnson v. Williams, 133 S. Ct. 1088, 1097
(2013) (quoting Webster’s New International Dictionary 540
(2d ed. 1954)). In contrast, an adjudication on matters “ex-
traneous” to the particular claim, “such as competence of the
tribunal or the like,” or on “procedural details” or “techni-
calities,” would not be a decision “on the merits.” Id. A
harmless-error determination is a substantive determination,
not merely one of form.
In his brief written before Ayala, the warden pointed to
Greene v. Fisher, 132 S. Ct. 38, 43 (2011). In Greene, the parties
agreed that the last state court adjudication on the merits of
a federal Confrontation Clause claim took place on direct
appeal to the Pennsylvania Superior Court. Id. at 45. The
United States Supreme Court decision on which the defend-
ant wished to rely, Gray v. Maryland, 523 U.S. 185 (1998), did
not issue until three months later. The Greene Court ruled
that although Gray was issued while the defendant’s petition
for leave to appeal to the Pennsylvania Supreme Court was
pending, and that court initially granted the petition (though
later dismissed it as improvidently granted), Gray was not
“clearly established Federal law” under AEDPA because it
had not been issued at the time of the last state-court adjudi-
cation on the merits. Id. No harmless-error determination
was at issue in Greene, and Greene does not inform the analy-
sis of whether a harmless-error determination is an adjudica-
tion on the merits.
Under Ayala, though, it is clear that the Wisconsin appel-
late court decision is the last “adjudication on the merits” for
AEDPA purposes in Jensen’s case. Therefore, Giles had been
decided by the time of the last adjudication of the claim on
the merits, and Julie’s letter and the statements to Officer
No. 14-1380 15
Kosman at issue were admitted in violation of Jensen’s
rights under the United States Constitution, as shown by
clearly established Supreme Court precedent at the time of
the Wisconsin appellate court decision.
B. Error Had Substantial and Injurious Effect in De-
termining Jury’s Verdict
We must now assess whether the Wisconsin appellate
court’s decision that any federal constitutional error was
harmless was contrary to, or involved an unreasonable ap-
plication of, clearly established federal law as determined by
the United States Supreme Court, or was based on an unrea-
sonable determination of the facts. 28 U.S.C. § 2254(d)(1), (2).
Jensen maintains it was, and the district court agreed.
“The test for whether a federal constitutional error was
harmless depends on the procedural posture of the case.”
Ayala, 135 S. Ct. at 2197. When a case is on direct appeal, the
standard for harmless error is that articulated in Chapman:
“‘[B]efore a federal constitutional error can be held harmless,
the court must be able to declare a belief that it was harmless
beyond a reasonable doubt.’” Ayala, 135 S. Ct. at 2197 (quot-
ing Chapman, 386 U.S. at 24).
However, because the conviction here originated in
state court, this case is a collateral proceeding governed by
AEDPA. Our case law had given some contrary signals as to
the applicability of the Supreme Court’s decisions in Chap-
man and Brecht v. Abrahamson, 507 U.S. 619 (1993), in cases
where the state-court ruling was based on harmless error.
Compare, e.g., Kamlager v. Pollard, 715 F.3d 1010, 1016 (7th Cir.
2013) and Brown v. Rednour, 637 F.3d 761, 766 (7th Cir. 2011)
with, e.g., Jones v. Basinger, 635 F.3d 1030, 1052 n.8 (7th Cir.
16 No. 14-1380
2011) (recognizing that “any error sufficiently harmful to sat-
isfy the Brecht ‘actual prejudice’ standard could be deemed
harmless only by unreasonably applying Chapman.”).
The Supreme Court’s recent decision in Ayala clarified
the standard of review. For habeas petitioners like Jensen,
where the state court ruled that an error in admission was a
harmless error, the petitioners are
“not entitled to habeas relief based on trial error unless
they can establish that it resulted in ‘actual prejudice.’”
Brecht, 507 U.S. at 637 (quoting United States v. Lane, 474
U.S. 438, 449 (1986)). Under this test, relief is proper on-
ly if the federal court has “grave doubt about whether a
trial error of federal law had ‘substantial and injurious
effect or influence in determining the jury’s verdict.’”
O’Neal v. McAninch, 513 U.S. 432, 436 (1995).
Ayala, 135 S. Ct. at 2197-98.
So the Supreme Court has made clear that Jensen must
meet the Brecht standard. But Ayala also makes clear that this
requirement does not mean that the Wisconsin appellate
court’s harmless error determination lacks significance. See
Ayala, 135 S. Ct. at 2198. Rather, the “Brecht standard ‘sub-
sumes’ the requirements that § 2254(d) imposes when a fed-
eral habeas petitioner contests a state court’s determination
that a constitutional error was harmless under Chapman.” Id.
(citing Fry v. Pliler, 551 U.S. 112, 120 (2007)). While a federal
court adjudicating a habeas petition does not need to “’for-
mal[ly]’ apply both Brecht and ‘AEDPA/Chapman,’ AEDPA
nevertheless ‘sets forth a precondition to the grant of habeas
relief.’” Ayala, 135 S. Ct. at 2198.
No. 14-1380 17
Jensen maintains that the Brecht standard is satisfied here
and that the Wisconsin court’s finding that the error was
harmless beyond a reasonable doubt was not just wrong, but
also unreasonable. Cf. Ayala, 135 S. Ct. at 2199 (stating that
when reviewing state court’s determination that error was
harmless under Chapman, federal court cannot grant habeas
relief unless harmlessness determination itself was unrea-
sonable). He also argues that the Wisconsin court unreason-
ably applied clearly established Supreme Court law by ap-
plying the wrong test, failing to consider his evidence in de-
fense, and erroneously determining that key points of evi-
dence were undisputed.
We begin with the test for harmless error. Time and
again, the Supreme Court has emphasized that a harmless-
error inquiry is not the same as a review for whether there
was sufficient evidence at trial to support a verdict. Nearly
seventy years ago, in Kotteakos v. United States, 328 U.S. 750(1946), the Supreme Court explained as it conducted harm-
less-error review of jury’s decision:
And the question is, not were they right in their judg-
ment, regardless of the error or its effect upon the ver-
dict. It is rather what effect the error had or reasonably
may be taken to have had on the jury’s decision.…The
inquiry cannot be merely whether there was enough to
support the result, apart from the phase affected by the
error. It is rather, even so, whether the error itself had
substantial influence.
Id. at 764-65. The Supreme Court has reinforced this princi-
ple over and over. For example, in Satterwhite v. Texas, 486
U.S. 249 (1988), the Court considered a death sentence where
the state appellate court found contested testimony harmless
18 No. 14-1380
on the basis that the properly admitted evidence would have
been sufficient to support a jury decision. Id. at 258. The Su-
preme Court reversed, explaining, “[t]he question, however,
is not whether the legally admitted evidence was sufficient
to support the death sentence, which we assume it was, but
rather whether the State has proved ‘beyond a reasonable
doubt that the error complained of did not contribute to the
verdict obtained.’” Id. at 258-59 (quoting Chapman, 386 U.S.
at 24). Finding this standard satisfied, the Court reversed the
state court’s judgment. Id. at 260; see also Sullivan v. Louisiana,
508 U.S. 275, 279 (1993) (“The inquiry, in other words, is not
whether, in a trial that occurred without the error, a guilty
verdict would surely have been rendered, but whether the
guilty verdict actually rendered in this trial was surely unat-
tributable to the error.”); Fahy v. State of Conn., 375 U.S. 85, 86
(1963) (“We find that the erroneous admission of this uncon-
stitutionally obtained evidence at this petitioner’s trial was
prejudicial; therefore, the error was not harmless, and the
conviction must be reversed. We are not concerned here
with whether there was sufficient evidence on which the pe-
titioner could have been convicted without the evidence
complained of.”).
Despite this long line of cases establishing the test for
harmless error, the Wisconsin appellate court’s reasoning
reads as though it is conducting an evaluation of whether
there was sufficient evidence to support the verdict, not
whether the error in admitting Julie’s letter and statements
to police affected the jury’s verdict. Cf. Kotteakos, 328 U.S. at
764-65. Near the beginning of its analysis, the state appellate
court stated, “Here, we will not attempt to catalog all the un-
tainted evidence the State presented; however, we will
summarize some of the compelling pieces in order to illus-
No. 14-1380 19
trate that the record is replete with reason to uphold the ju-
ry’s verdict, even if the assumedly tainted evidence is disre-
garded.” Jensen II, 794 N.W.2d at 493. The court then went
through five categories of evidence presented by the State—
computer evidence, motive evidence, Jensen’s incriminating
statements, medical evidence, and miscellaneous evidence.
Id. at 493-94. The court said this was evidence from which “a
rational jury could alone conclude beyond a reasonable
doubt” that Jensen murdered his wife. Id. at 494. But a
statement of what a “rational jury could conclude” is not a
statement of a harmless-error inquiry; it is instead the ques-
tion presented when a direct appeal asks whether there is
sufficient evidence to support a verdict. See State v. Kim-
brough, 630 N.W.2d 752, 756 (Wis. 2001). That is not the ques-
tion here.
The state appellate court next said it would examine the
admitted testimonial evidence to determine whether any er-
ror in admitting it was harmless. Id. at 495. It looked at Ju-
lie’s letter and found other properly admitted evidence in
the record that the appellate court said made similar points
as to those made in the letter, or to corroborate statements in
the letter. For example, the court stated that a sentence in Ju-
lie’s letter stating that “if anything happens to me, he would
be my first suspect” was assumed inadmissible evidence. It
then discussed what it termed “[ad]missible duplica-
tive/corroborative evidence in the record.” Id. at 495. The
court pointed to Mr. Wojt’s testimony that about a month
before her death, Julie told him she suspected Jensen was
trying to poison her or drive her nuts to take the children
from her. Id. at 496. Mr. Wojt also recounted that Julie said
Jensen would go to work and leave his computer on with a
screen displaying a website about poisoning. Id. The court
20 No. 14-1380
also pointed to her son’s teacher’s testimony recounting Ju-
lie’s statement, “I think my husband is going to kill me” as
well as Jensen’s sister’s testimony that Julie told her in the
fall of 1998 that she thought Jensen might be planning to kill
her. Id.
The court concluded its discussion comparing the indi-
vidual statements in the letter to other evidence in the record
by stating, “The State’s additional evidence, compared to Ju-
lie’s letter, illustrates that virtually all relevant information
in Julie’s letter was duplicated by admissible nontestimonial
evidence from other sources. The rest of the record reflects
that the jury heard overwhelming evidence of murder, and
upon this record, it could rationally have concluded beyond
a reasonable doubt that Jensen murdered Julie. The same is
true regarding Julie’s testimonial statements to Kosman; that
is, virtually everything related in Julie’s statements to
Kosman was duplicated by admissible evidence from other
sources.” Jensen II, 794 N.W.2d at 498. This analysis from the
Wisconsin appellate court demonstrates that it is conducting
a review for whether there is sufficient evidence to support a
verdict, a review that looks at all the evidence in the light
most favorable to the conviction, and where the inquiry is
only whether the jury could have convicted. See Kimbrough,
630 N.W.2d at 756. That is very different than the harmless
error test under clearly established Supreme Court law.
And these statements do not just seem to be slips of the
pen. The state appellate court decision contains a very de-
tailed discussion of the State’s evidence. But its discussion
does not engage with the defense evidence that goes against
the evidence discussed by the court. The Supreme Court has
said, however, that when a court “evaluat[es] the strength of
No. 14-1380 21
only one party’s evidence, no logical conclusion can be
reached regarding the strength of contrary evidence offered
by the other side to rebut or cast doubt.” Holmes v. South
Carolina, 547 U.S. 319, 331 (2006).
To be clear, if the question was whether there was suffi-
cient evidence to convict Jensen, the answer would be “yes.”
But the harmless error test does not focus just on the suffi-
ciency of other evidence. The question as we conduct the
Brecht analysis is whether we are in “’grave doubt about
whether a trial error of federal law had “substantial and in-
jurious effect or influence in determining the jury’s verdict.”’”
Ayala, 135 S. Ct. at 2198 (quoting O’Neal, 513 U.S. at 436 (em-
phasis added)). So we must look at the influence the im-
properly admitted handwritten letter and accusatory state-
ments to the police had on the verdict. In this analysis “we
look to ‘a host of factors,’ such as ‘the importance of the wit-
ness’ testimony in the prosecution’s case, whether the testi-
mony was cumulative, the presence or absence of evidence
corroborating or contradicting the testimony of the witness
on material points, the extent of cross-examination otherwise
permitted, and, of course, the overall strength of the prose-
cution’s case.’” Jones, 635 F.3d at 1052 (quoting Delaware v.
Van Arsdall, 475 U.S. 673, 684 (1986)).
The letter, a handwritten letter, penned just two weeks
before her death, was unlike anything else in evidence. It
came straight from Julie, shortly before her death. (At least
according to the State—there was some question at trial as to
its authenticity.) And it played a key role in the trial from the
outset. The jury first heard about the letter early in the
State’s opening statement, when it read the letter in its en-
tirety out loud for the jury to hear. The State used Julie’s
22 No. 14-1380
own words from the letter and her statements to Officer
Kosman in its opening statement to underscore its themes of
fear, motive, and absence of intent to take her own life. In
light of the pretrial ruling that the letter would be allowed
into evidence, the defense addressed the letter in its opening
as well, even presenting it as a large exhibit. Defense counsel
accurately in its opening statement told the jury that “[w]e’ll
come back to the letter many times during this case, and
you’ll have to decide whether it’s a blueprint for framing her
husband or legitimate.”
The letter was also the last thing the State left in the ju-
ry’s mind before it deliberated Jensen’s fate, as the State’s
end to its rebuttal closing argument focused on the letter. (It
had also highlighted the letter and Julie’s statements to the
police in other parts of its closing argument.) In its final ar-
guments to the jury the State stressed that the letter con-
tained Julie’s own thoughts: “So here was her unexpressed
thoughts. She wrote them down, and she hid them away ….
Hid them away until a time when she could resolve this ter-
rible dilemma she was in ….” The State also emphasized
here that the jury should believe the letter because it con-
tained Julie’s own words: “It was a thought which was only
to be expressed upon her death, because she wanted the
world to know the truth. She wanted you to know the
truth.” The State told the jury to believe the letter because
Julie would not have lied: “At the time she wrote those
words Julie had no motive to lie. She was hoping and she
was praying nobody would ever see these words.” The State,
in its final words, left the jury with words from the letter:
“She hoped, she prayed that would not happen. But as she
indicated, however, I will not leave David and Douglas, my
life’s greatest love, accomplishment and wish. That’s why
No. 14-1380 23
she stayed. Dr. Spiro doesn’t understand that. Well, there’s a
lot of things that Dr. Spiro doesn’t understand. The im-
portant thing is that you do. Thank you.”
The prosecution’s choice to end its closing arguments
with the letter reflects its importance in the prosecution’s
case. The letter was a unique piece of evidence. No other
piece of evidence had the emotional and dramatic impact as
did this “letter from the grave.” While some of the state-
ments in the letter also came out through other witnesses at
trial, only the letter contained words straight from Julie. And
what words they were. Julie’s handwritten letter said her
husband would be her first suspect if anything were to hap-
pen to her, along with emotionally compelling statements
that she would never take her life or leave her children. The
themes in the letter that Julie identified—she was caught up
in an unhappy marriage, Jensen was still bitter about her af-
fair, it was just Jensen who used the internet, she would
never take her life because she loved her children too much,
she feared Jensen was plotting her murder—were the same
themes that the State developed throughout trial. Cf. United
States v. Brown, 490 F.2d 758, 781 (D.C. Cir. 1973) (“The
statement presented all the classic hearsay dangers and
abuses. Here was that voice from the grave casting an in-
criminating shadow on the defendant … The damaging evi-
dence stands impregnable—irretrievably lodged in the ju-
rors’ minds.”).
Recognizing the significance of the letter, the prosecutor
did not merely ask one witness to discuss the letter’s con-
tents; rather, it displayed the handwritten letter itself on the
screen and asked the jury to read it. Twelve witnesses testi-
fied about the letter, including five experts. Notably, state
24 No. 14-1380
medical experts Dr. Mainland and Dr. Long relied on the let-
ter to support their medical opinions that Julie’s death was a
homicide. Dr. Long testified that the letter and Julie’s other
statements to police regarding fearing for her life from her
husband were two of the reasons for his conclusion that Ju-
lie’s death was a homicide. And Dr. Mainland testified that
“every sentence in the letter influenced” her, and that the
sentence in the letter that Julie would not take her own life
because of her children was especially influential in her
opinion that the death was a homicide. The police and the
Wojts also testified about the letter. The letter was also
shown to Jensen during a video-recorded interrogation, and
the State emphasized Jensen’s reaction to the letter in its
closing. The letter also came up during the jury delibera-
tions—the jury’s second note in its thirty hours of delibera-
tions requested the letter.
Indeed, the importance of the letter in the State’s case
was emphasized over and over by the State as it repeatedly
fought to get the letter admitted. In pretrial litigation, the
State called the letter an “essential component of the State’s
case,” “highly relevant to the central issues of this case: sui-
cide, motive, and fear,” and of “extraordinary value.” It also
called the letter’s admissibility “a make or break issue” from
the State’s perspective. While the Wisconsin appellate court
found the improperly admitted evidence added “nothing
significant beyond the properly admitted nontestimonial
statements,” Jensen II, 794 N.W.2d at 499, in addition to all
that we discussed, the State’s own words reflect the im-
portance of the letter to its case and the unreasonable nature
of the appellate court’s finding of harmless error.
No. 14-1380 25
In assessing whether the improperly admitted evidence
had a substantial and injurious effect on the verdict, we are
concerned with the overall strength of the prosecution’s
case, not merely the evidence in its favor. Jones, 635 F.3d at
1032. Although the state appellate court discussed the State’s
evidence at length, it did not engage with the defense evi-
dence. As the district court observed, “A reader of the court
of appeals’ opinion would conclude that Jensen called no
witnesses, introduced no evidence, never questioned the
credibility of any witness, and never even elicited helpful
testimony from a prosecution witness.” But that is far from
what actually happened during the six-week trial.
While the Wisconsin appellate court referred to “untaint-
ed and undisputed gripping evidence against Jensen,” Jensen
II, 794 N.W.2d at 494, the “undisputed” evidence in the case
was all circumstantial and subject to more than one interpre-
tation. Even the computer evidence, which the appellate
court called the most incriminating evidence against Jensen,
was not conclusive. The State presented evidence of searches
for various means of death (poisoning, botulism, pipe
bombs, and mercury fulminate, and one visited website ex-
plained how to reverse the polarity of a swimming pool,
which the Jensens had), testimony from her son’s teacher
that Julie and her son had both said Julie did not know how
to use a computer, and testimony that there was no internet
use on the home computer in November 1998 from Monday
through Friday between 9 a.m. and 6 p.m., while Jensen was
at work, nor was there internet use during days when he
was at a conference out of town.
But no evidence precluded a jury from finding that Julie
did at least some of the internet searches, including those for
26 No. 14-1380
ethylene glycol poisoning. In addition to the pro-prosecution
evidence discussed by the appellate court, the jury also
heard from Julie’s best friend, who testified that Julie used
the computer to conduct research and for household
bookkeeping. Julie’s resume stated that she had performed
“on-line security order entry” while working at Dean Witter.
She had also obtained a Series Seven broker’s license that
allowed her to place and accept stock trades. That evidence
was consistent with Jensen’s statement to investigators
denying any knowledge of the internet searches for poison
and stating that Julie also used the internet and accessed the
computer. Moreover, that the home computer’s internet
search history was deleted is equally consistent with both
Julie trying to hide evidence of her suicide and with Jensen
trying to hide evidence of murder. And no searches for poi-
sons were found on Jensen’s work computer, which one
might have expected if he were the person doing that search
on the home computer.
This case was no slam dunk. The evidence was all cir-
cumstantial. And there was significant evidence in support
of Jensen’s theory that Julie had taken her life, evidence not
discussed at all by the Wisconsin appellate court. For exam-
ple, she had visited her doctor, Dr. Richard Borman, two
days before her death. Dr. Borman testified that she was
“highly upset” and “seemed depressed and distraught and
almost frantic, actually.” The jury heard that Dr. Borman
prescribed the anti-depressant Paxil, which can worsen a
depressed person’s symptoms. Julie became ill the day after
she saw Dr. Borman, starting in the early hours of the day,
and by mid-morning Jensen had gone to see Dr. Borman.
Jensen expressed concern that Julie was suffering from Pax-
il’s side effects including sleeplessness, and Dr. Borman pre-
No. 14-1380 27
scribed a sleep aid. It was while Jensen was away seeing Dr.
Borman that Julie phoned Mrs. Wojt to say not to worry if
she did not see Julie outside that day, another significant
piece of evidence that supported the defense’s suicide theo-
ry. A jury could infer that once Jensen left for the doctor, Ju-
lie put her suicide plan into action, including calling Mrs.
Wojt and going on the computer to search for ethylene gly-
col poisoning. (There was an internet search for ethylene
glycol poisoning at 9:45 am that day, when the defense said
Jensen was away seeing Dr. Borman.)
Nor did the state appellate court discuss the significant
credibility problems of seven-time convict Aaron Dillard,
Jensen’s one-time cellblock mate whom the trial judge called
the “top liar I’ve ever had in court.” Dillard, testifying at trial
while awaiting his own sentencing, testified that Jensen ad-
mitted to him in prison that he had poisoned Julie and later
suffocated her by pushing her face into a pillow. The medi-
cal professionals who opined for the very first time at trial
that Julie was suffocated (Dr. Chambliss and Dr. Mainland)
relied on Dillard’s account for the suffocation details. Dillard
had in his cell a transcript of the lead detective’s interroga-
tion of Jensen, and the trial judge recognized there was tes-
timony from which the jury could conclude that Dillard was
in and out of Jensen’s cell. Although the State argued that
Jensen had confessed to his cellblock mate Dillard, if the
transcript was in Jensen’s cell, that could have been the way
Dillard obtained the details.
The state appellate court also did not discuss the testi-
mony of Dr. Herzl Spiro, who examined Julie’s mental
health records and interviewed persons close to her. He tes-
tified that Julie was suffering from a major depressive disor-
28 No. 14-1380
der that was complicated by anxiety and agitation with pos-
sible delusional features, and he concluded that she posed a
significant suicide risk and that it was more likely that Julie’s
ingestion of antifreeze was the result of suicidal intent rather
than homicide or accident.
The state appellate court noted the testimony from Ed-
ward Klug who said that during a late-night gripe session
with Jensen about their wives, Jensen said that if one wanted
to get rid of his wife, there were websites instructing how to
kill her with undetectable poison. But the court did not dis-
cuss the fact that Klug had not come forward with this ac-
count until nine years after Julie’s death, despite the large
amount of publicity surrounding the case. The state appel-
late court was concerned only with the evidence in the pros-
ecution’s favor, while the proper concern is with the overall
strength of the prosecution’s case. Van Arsdall, 475 U.S. at
684; Jones, 635 F.3d at 1032. 2
2 The dissent suggests that it is somehow irrelevant that the Wiscon-
sin appellate court’s lengthy opinion ignored extensive evidence. But in
Harrington v. Richter, 562 U.S. 86 (2011), to which the dissent points, there
was no state court opinion that explained the reasons for denying relief.
Id. at 98. Here, however, the state court gave a detailed account of the
“arguments or theories [that] supported … the state court’s decision,”
and that account matters to our analysis. Id. at 102; see Brady v. Pfister, 711
F.3d 818, 826 (7th Cir. 2013) (explaining that even after Richter, federal
courts must evaluate whether § 2254(d) satisfied in light of state court’s
explanation); cf. Kubsch v. Neal, 2015 WL 4747942, at *17-19 (7th Cir. Aug.
12, 2015) (discussing review where state court rationale is incomplete).
The actual arguments and theories supporting the state appellate court’s
decision convince us that its error was “well understood and compre-
hended in existing law beyond any possibility for fairminded disagree-
ment.” Richter, 562 U.S. at 103.
No. 14-1380 29
We conclude that after consideration of the correct
standard of review, the improperly admitted letter and accu-
satory statements resulted in actual prejudice to Jensen. We
recognize that “an unreasonable application of federal law is
different from an incorrect application of federal law.” Har-
rington v. Richter, 562 U.S. 86 (2011). But the state appellate
court’s ruling was not simply incorrect. The state trial judge
recognized this when he called the letter’s admittance “grave
constitutional error” when he foresaw the Giles ruling. That
the jury improperly heard Julie’s voice from the grave in the
way it did means there is no doubt that Jensen’s rights under
the federal Confrontation Clause were violated. Any reason-
able jurist using the proper standard would have to find
“grave doubt” about whether that violation is harmless. The
error in admission had a substantial and injurious effect or
influence in determining the jury’s verdict; it was one “well
understood and comprehended in existing law beyond any
possibility for fairminded disagreement.” Richter, 562 U.S. at
103. Because Jensen satisfies the Brecht standard, he neces-
sarily satisfies the AEDPA standard of an unreasonable ap-
plication of the Chapman harmless error standard. See Ayala,
135 S. Ct. at 138; Fry, 551 U.S. at 120. As a result, we agree
with the district court that Jensen’s petition must be granted.
III. CONCLUSION
The judgment of the district court is AFFIRMED.
30 No. 14-1380
TINDER, Circuit Judge, dissenting. The admission of Julie’s
letter and testimonial statements to Officer Kosman violated
Jensen’s confrontation rights, but the Wisconsin Court of
Appeals affirmed his conviction, holding that the error was
harmless beyond a reasonable doubt under Chapman v. Cali-
fornia, 386 U.S. 18, 24 (1967). Fairminded jurists could disa-
gree with that holding. Indeed, my colleagues in the majori-
ty, who epitomize fair-mindedness, disagree, and make a
strong case for doing so. But I submit that fairminded jurists
could also agree with the Wisconsin Court of Appeals. And
because we owe great deference to the state court’s decision,
we are not in a position to choose between two fairminded
alternatives. I would uphold the decision of the Wisconsin
Court of Appeals as a reasonable application of Chapman.
Therefore, I respectfully dissent.
In Brecht v. Abrahamson, 507 U.S. 619 (1993), the Supreme
Court established the harmless-error standard that applies
“in determining whether habeas relief must be granted be-
cause of constitutional error of the trial type.” Id. at 638. The
test is “whether the error had substantial and injurious effect
or influence in determining the jury’s verdict.” Id. at 637(quotation omitted). In other words, there must be “actual
prejudice.” Id. (quotation omitted).
Three years after [the Court] decided Brecht,
Congress passed, and the President signed, the
Antiterrorism and Effective Death Penalty Act
of 1996 (AEDPA), under which a habeas peti-
tion may not be granted unless the state court’s
adjudication “resulted in a decision that was
contrary to, or involved an unreasonable appli-
cation of, clearly established Federal law, as
No. 14-1380 31
determined by the Supreme Court of the Unit-
ed States ....”
Fry v. Pliler, 551 U.S. 112, 119 (2007) (quoting 28 U.S.C. §
2254(d)(1)).
The Court recently held that when a state prisoner “seeks
federal habeas corpus relief, he must meet the Brecht stand-
ard, but that does not mean … that a state court’s harmless-
ness determination has no significance under Brecht.” Davis
v. Ayala, 135 S.Ct. 2187, 2198 (2015). Rather, “[w]hen a Chap-
man decision is reviewed under AEDPA, ‘a federal court
may not award habeas relief under § 2254 unless the harm-
lessness determination itself was unreasonable.’” Id. at 2199
(quoting Fry, 551 U.S. at 119). “And a state-court decision is
not unreasonable if ‘fairminded jurists could disagree on
[its] correctness.’” Id. (quoting Harrington v. Richter, 562 U.S.
86, 101 (2011)) (internal quotation marks omitted). Thus, to
prevail, a petitioner “must show that the state court’s deci-
sion to reject his claim ‘was so lacking in justification that
there was an error well understood and comprehended in
existing law beyond any possibility for fairminded disa-
greement.’” Id. (quoting Richter, 562 U.S. at 103).
As assumed by the Wisconsin Court of Appeals, the ad-
mission of Julie’s letter and testimonial statements to Officer
Kosman violated the Confrontation Clause. However, to ob-
tain habeas relief, Jensen “must show that he was actually
prejudiced by this [violation], a standard that he necessarily
cannot satisfy if a fairminded jurist could agree with the
[state court’s] decision that the [violation] met the Chapman
standard of harmlessness.” Id.32 No. 14-1380
The Wisconsin Court of Appeals examined Julie’s letter
line by line, and it explained in great detail how all of Julie’s
statements in the letter were duplicative of other, admissible
evidence. State v. Jensen (Jensen II), 794 N.W.2d 482, 495–98
(2010). It did the same with Julie’s testimonial statements to
Officer Kosman. Id. at 498–99. For example, Jensen’s sister,
Laura Koster, testified that Julie told her that she thought
Jensen might be planning to kill her. Koster also testified that
Julie showed her a photo of a list from Jensen’s day planner
and something that “looked like a syringe.”
Tadeusz Wojt, Julie’s neighbor, testified that during the
three weeks prior to Julie’s death, Julie was upset and
“scared she was go[ing] to die,” because Julie feared that
Jensen was trying to poison her by “put[ting] something in
the wine” Jensen insisted Julie drink. Wojt also testified that
Julie told him that she did not think she would make it
through one particular weekend because she had found sus-
picious notes written by her husband and she had seen a
computer page about poisoning that Jensen had left open on
the home computer. Wojt testified that Julie repeatedly told
him about marital problems she and Jensen were having.
Therese DeFazio, Julie’s son’s teacher, testified that a
week before her death, Julie told DeFazio that she thought
Jensen was trying to kill her and “was going to make it look
like a suicide.” DeFazio said Julie told her about a list writ-
ten by Jensen that included “syringes ... and drugs and items
like that,” and Julie feared that Jensen was going to try to
give her an overdose of drugs by putting them in her food or
drink. DeFazio testified that Julie said that Jensen “never
forgave her” for the affair she had eight years earlier. DeFa-
zio also testified that in August 1998 she asked Julie to help
No. 14-1380 33
in the computer lab with the children, and Julie said, “[O]h, I
can’t do that, I don’t even know how to turn one on.” DeFa-
zio testified that Julie’s son told DeFazio that he was teach-
ing his mother how to use a computer because “she didn’t
know how.” DeFazio testified that Julie said she gave her
neighbor a note, “saying that if my husband ever kills me
please believe that I did not commit suicide, I would never
do that because I love my children and I wouldn’t do that to
my children.”
Dr. Richard Borman, Julie’s physician, testified that two
days before her death, Julie denied being suicidal and said
she loved her children “more than anything and they were
the most important thing in the world to her,” and she did
not want to lose them. Dr. Borman said Julie alluded to an
affair that she had in the past and said she believed that Jen-
sen had “never really forgiven” her for it.
Jensen’s friend and co-worker, David Nehring, testified
that soon after he met Jensen, sometime around 1990 or 1991,
Jensen told him about Julie’s brief affair. Nehring testified
that eight years after telling him about the affair, Jensen’s
anger had not diminished. He said that “[Jensen] remained
upset about [the affair] and distressed over it for as long as I
knew him.” Nehring described Jensen’s computer skills as
“above average,” and testified that during the month before
Julie’s death, Jensen conducted Internet searches on drug in-
teractions “on a very frequent basis.” Nehring testified that
Jensen said he was trying to get Julie to relax by offering her
glasses of wine at night, but she was resisting his efforts.
Nehring also testified that a day after Nehring told Jensen he
was surprised the police had not seized Jensen’s work com-
puter as part of the investigation into Julie’s death, Jensen
34 No. 14-1380
reported that his work computer “had been fried and he’d
have to get a new one.”
The State presented evidence indicating that Jensen re-
peatedly placed pornographic photos around the house for
Julie to find and that Jensen knew Julie believed her former
paramour was planting them. Jensen denied knowing the
origin of the pornographic photos, but he told the investigat-
ing officer, Detective Paul Ratzburg, that he began saving
the photos and using them to upset Julie when “something
would happen” that caused him to “get pissed off.” Detec-
tive Ratzburg said Jensen explained that sometimes Jensen
would leave the photos out for Julie to find and other times
he would bring them out, show them to Julie and tell her
that he “found these in the shed.” Detective Ratzburg testi-
fied that Jensen admitted that their marriage was never the
same after Julie’s affair.
Detective Ratzburg also testified that Jensen told him that
on the morning of Julie’s death, Julie “could hardly sit up,”
she “was not able to get out of bed,” and she “was not able
to move around and function.” Jensen said he propped Julie
up in bed at 7:30 a.m., and he did not leave home that morn-
ing until 8:00 or 9:00 a.m. This timetable is significant be-
cause of computer evidence that, at 7:40 a.m. on the day of
Julie’s death, a search for “ethylene glycol poisoning” was
conducted on the Jensen home computer and then the user
double-deleted that morning’s Internet history. Computer
evidence also revealed that, two months earlier, the Jensen
home computer was used to search for methods of poison-
ing on the same day Jensen and his then-paramour ex-
changed emails planning their future together.
No. 14-1380 35
In short, there were multiple sources of admissible evi-
dence duplicating (or corroborating) every relevant aspect of
Julie’s erroneously admitted testimonial statements. In par-
ticular, Julie’s letter and statements to Officer Kosman were
not the only times Julie told her story; during the same time
period, she told variations of the same story to multiple
people. This contributed to what the Wisconsin Court of
Appeals described as “the staggering weight of the untaint-
ed evidence and cumulatively sound evidence presented by
the State,” which led the court to conclude that “the State
has proven beyond a reasonable doubt that any error com-
plained of did not contribute to the verdict obtained.” Jensen
II, 794 N.W.2d at 504.
The Wisconsin Court of Appeals recognized that “[t]his
case was not a classic whodunit.” Id. at 493. Instead, the jury
was asked to choose between two dark and premeditated
alternatives—either Jensen murdered Julie and framed it to
look like suicide, or Julie committed suicide and framed Jen-
sen for murder. One unique aspect of this case is that each of
Julie’s testimonial statements, as well as much of the dupli-
cative admissible evidence, could be interpreted to support
either alternative. (Given the wealth of duplicative admissi-
ble evidence, it seems safe to assume the jury will be pre-
sented with the same stark choice if there is a retrial.) It rea-
sonably could be said that the inclusion or exclusion of Ju-
lie’s letter and testimonial statements to Officer Kosman
would not significantly alter the jury’s choice or the consid-
erations underlying that choice, no matter the rhetoric em-
ployed by the State’s lawyers in pretrial filings or the parties’
use of the letter as a framing device during trial.
36 No. 14-1380
In part because so much of the evidence could be viewed
as supporting either of the two competing theories, the pros-
ecution’s case was not a slam dunk, as discussed by the ma-
jority. And as also noted by the majority, there might be rea-
son to believe that Julie’s letter was especially forceful evi-
dence (even though its authenticity was questioned) and that
members of the jury would have given less weight to Julie’s
oft-repeated fears and accusations if all they had were her
oral statements to her neighbor, her son’s teacher, and Jen-
sen’s sister, as well as the corroborating computer and medi-
cal evidence, evidence of Jensen’s incriminating statements
and motive, and evidence of Julie’s lack of suicidal intent
and devotion to her children. But it might also be reasonable
to think that without the letter and testimonial statements to
Officer Kosman, the jury would have been less inclined to
believe Jensen’s theory that Julie committed suicide and
framed him for murder, because anyone concocting such a
scheme likely would have memorialized their accusations in
writing and taken steps to ensure they came to the attention
of the police. In other words, in this unique situation—where
the evidence at issue supported each side’s theory—the state
court could reasonably decide that despite the significant
role Julie’s testimonial statements played in the trial, those
statements did not play a significant role in deciding the ju-
ry’s verdict.
The majority faults the Wisconsin Court of Appeals for
ignoring evidence supporting the defense theory. It is worth
pointing out that the Wisconsin court stated that it “re-
view[ed] the extensive record.” Jensen II, 794 N.W.2d at 504.
But “of greater moment is the Supreme Court’s ruling in
Harrington [v. Richter] that even a state court ‘opinion’ con-
sisting of the single word ‘affirmed’ is entitled to the full
No. 14-1380 37
deference that the habeas corpus statute demands be given
determinations by state courts. The Supreme Court’s ruling
precludes our inferring error from the Wisconsin court’s
failure to discuss particular pieces of evidence.” Price v.
Thurmer, 637 F.3d 831, 839 (7th Cir. 2011) (citing Richter, 562
U.S. at 98–99).
The majority reads the Wisconsin Court of Appeals’s de-
cision as employing a sufficiency-of-the-evidence test, rather
than a harmlessness test. If that was true, it would be an un-
reasonable application of Chapman, and to be fair, there are a
few statements in the state court’s opinion to support this
reading. But in each case, the court reiterated its finding of
harmlessness based on “the staggering weight of the un-
tainted evidence and cumulatively sound evidence present-
ed by the State.” Jensen II, 794 N.W.2d at 504. For example,
after cataloging some of the state’s corroborating evidence,
the court stated:
With the above illustrative summary of the
other, untainted and undisputed gripping evi-
dence against Jensen—from which a rational
jury could alone conclude beyond a reasonable
doubt that Jensen cruelly planned and plotted
and, in fact, carried out the murder of his wife
Julie—we move on to examine the admitted testi-
monial evidence for a determination as to whether
the assumed error in admitting it was harmless or
reversible. As already noted, we conclude that
the State has met its burden of proving admis-
sion of the testimonial evidence was harmless
beyond a reasonable doubt. The State deftly
dissects the challenged testimonial evidence
38 No. 14-1380
and is able to point to admissible duplicative
and corroborative evidence in the record.
Id. at 494–95 (emphasis added). This passage makes clear
that while the Wisconsin Court of Appeals found the nontes-
timonial evidence against Jensen sufficient to support the
jury’s verdict, this was not the basis of its harmlessness find-
ing. Instead, the court “move[d] on” to conclude that the
admission of Julie’s testimonial statements was harmless be-
cause the statements were duplicative of other, untainted
corroborative evidence. Cf. Delaware v. Van Arsdall, 475 U.S.
673, 684 (1986) (“Whether such an error is harmless in a par-
ticular case depends upon a host of factors…. These factors
include … whether the testimony was cumulative, [and] the
presence or absence of evidence corroborating or contradict-
ing the testimony of the witness on material points….”). As
the Wisconsin court stated in concluding its harmlessness
analysis, “[t]he sine qua non is that the testimonial state-
ments provided nothing significant beyond the properly
admitted nontestimonial statements.” Jensen II, 794 N.W.2d
at 499. And as the court reiterated in concluding its opinion:
“the State has proven beyond a reasonable doubt that any
error complained of did not contribute to the verdict ob-
tained.” Id. at 504; cf. Chapman, 386 U.S. at 24 (“[B]efore a
federal constitutional error can be held harmless [on direct
appeal], the court must be able to declare a belief that it was
harmless beyond a reasonable doubt.”).
The Wisconsin Court of Appeals concluded that “even
assuming the testimonial evidence of Julie’s letter and Julie’s
statements to Kosman were inadmissible under the rules of
evidence and the Sixth Amendment Confrontation Clause,
we deem any error in admission harmless.” Jensen II, 794
No. 14-1380 39
N.W.2d at 499. Based on the duplicative nature of Julie’s tes-
timonial statements and the overall strength of the prosecu-
tion’s case (even considering the defense evidence discussed
by the majority), I am not convinced that the state court’s
decision “‘was so lacking in justification that there was an
error well understood and comprehended in existing law
beyond any possibility for fairminded disagreement.’” Ayala,
135 S.Ct. at 2199 (quoting Richter, 562 U.S. at 103); cf. id. at
2198 (“There must be more than a ‘reasonable possibility’
that the error was harmful. The Brecht standard reflects the
view that a ‘State is not to be put to th[e] arduous task [of
retrying a defendant] based on mere speculation that the de-
fendant was prejudiced by trial error; the court must find
that the defendant was actually prejudiced by the error.’”)
(quoting Brecht, 507 U.S. at 637; Calderon v. Coleman, 525 U.S.
141, 146 (1998)). I would find that the decision of the Wis-
consin Court of Appeals represented a reasonable applica-
tion of controlling precedent. Accordingly, I would reverse
the grant of habeas relief.