Conditional Writ of Habeas Corpus.

Byline: Derek Hawkins

7th Circuit Court of Appeals

Case Name: Mark D. Jensen v. William Pollard

Case No.: 17-3639

Officials: ROVNER, SYKES, and BARRETT, Circuit Judges.

Focus: Conditional Writ of Habeas Corpus

In a prior appeal, we affirmed an order granting Mark Jensen's application for habeas relief from his conviction for the 1998 murder of his wife, Julie. Jensen v. Clements, 800 F.3d 892 (7th Cir. 2015). The Wisconsin Court of Appeals had rejected Jensen's Confrontation Clause challenge to the admission of Julie's "voice from the grave" letter expressing her fear that her husband might kill her. The rationale for that ruling was harmless error. We agreed with the district court that the state court unreasonably applied Supreme Court precedent. Id. at 908.

After our mandate issued, the district judge issued a conditional writ requiring the State of Wisconsin to either release Jensen or "initiate proceedings to retry him" within 90 days. The State timely initiated retrial proceedings. But before the retrial, the state trial judge concluded that the out-of-court statements were not testimonial, curing the constitutional defect in Jensen's first trial. Reasoning that a second trial was unnecessary, the trial judge reinstated Jensen's original...