EvidenceProf Blog

Editor: Colin Miller
Univ. of South Carolina School of Law

Thursday, March 20, 2008

Open In Case Of My Death, Take 3: Wisconsin Manufacturer's & Commerce Issues Attack Ad Against Dissenting Justice In Mark Jensen Case

I've posted entries about the Mark Jensen murder trial on January 7th and February 22nd.  You might recall that this was the case where Mark Jensen was accused of  poisoning his wife with two doses of ethylene glycol, commonly known as antifreeze, so that he could be with his new girlfriend.  The key evidentiary issue in the case concerned the admissibility of a note that the wife gave to a neighbor which indicated that Mark should be the first suspect if she died.  This evidentiary issue eventually reached the Supreme Court of Wisconsin, and the majority opinion in State v. Jensen, 727 N.W.2d 518, 521 (Wis. 2007), held that the note was admissible under the forfeiture by wrongdoing doctrine, which allows for hearsay statements by prospective witnesses to be admissible when the defendant rendered the prospective witness unavailable to testify at trial

In his opinion concurring in part and dissenting in part, Justice Louis B. Butler, Jr. countered that the note was inadmissible because the forfeiture by wrongdoing doctrine requires a showing of intent by the witness to render the prospective witness unavailable to testify at trial.  Thus, according to Justice Butler, the doctrine would apply in the witness tampering scenario, where a defendant who allegedly committed a crime subsequently kills a prospective witness, but it would not apply where the prospective witness is the victim herself.

The majority opinion, however, carried the day, the note was admitted into evidence at Jensen's trial, and Jensen was convicted of murder in the first degree.  The story, however, doesn't end there as Justice Butler is currently up for re-election.  Apparently, Wisconsin Manufacturers & Commerce (WMC), the state's largest business lobby, has put forth a new ad which charges that Butler "almost jeopardized the prosecution of a murderer because he saw a technicality."  "Thankfully, he didn't get his way," the ad says, before advising viewers to call Butler to "tell him needless technicalities are dangerous for Wisconsin."  Apparently, WMC has taken this approach because it feels that criminal cases are important to maintaining a health business climate.

The ad, which can be found linked in this article, makes it seem as if Justice Butler applied some obscure law, such as the laws listed on the Crazy Laws website (example:  the Alaskan law that Moose may not be viewed from an airplane).  Instead, as readers of this blog are well aware, the majority's opinion fell on one side of a sharp judicial split over how to apply the forfeiture by wrongdoing doctrine while Justice Butler's decision fell on the other.  In fact, the issue is so divided and unclear that the Supreme Court granted cert in Giles v. California to resolve the very issue that split the majority and dissenting opinions in State v. Jensen.  Personally, I side with the majority opinion and again direct readers to the excellent new article by my colleague Ralph Ruebner and law student Eugene Goryunov, which addresses this issue and also sides with the majority.  That said, there are certainly strong arguments supporting Justice Butler's opinion, which is why many courts have rendered opinions coming to the same conclusion.  Indeed, I wouldn't be surprised in the least if the Supreme Court rendered an opinion siding with Justice Butler, not the majority. 

All of which means that the WMC attack ad is misleading at best, which I suppose is to be expected in the political context of today.  But hopefully, the citizens of Wisconsin are not swayed by an argument with much less substance than Justice Butler's opinion in State v. Jensen.




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