Is this an Activist Judge?
The trial of Mark Jensen for murdering his wife, Julie, yielded a rather bizarre post conviction ruling. On 27 February, 2008, the presiding judge, Bruce Schroeder, decided that a letter written by Julie Jensen well before her death was a dying declaration.
Julie gave the letter, dated 11-21-98, in a sealed envelope, to a neighbor to be delivered to the police in the event of her death. She was declared dead on 3 December, 1998.
Judge Schroeder originally barred the letter because Mark Jensen could not confront the writer. The Wisconsin Supreme Court ruled that the letter was admissible because Mark Jensen deprived his wife of being a witness. The dying declaration aspect was not addressed.
Judge Schroeder expressed concern about the ruling, but was obligated to honor it.
Criminals have killed a witness in an attempt to avoid conviction. But, these were deliberate acts that occurred after the commission of a crime. The intent is to prevent testimony and requires knowledge by the perpetrator that a witness is available. In the Jensen case, Mark Jensen was unaware of the letter so if he killed his wife, it was not with the intent of removing a witness.
And, if such a letter is the only evidence in a presumed murder, it would be far more prejudicial than probative. Here, the real issue was the state of mind and intent of Julie Jensen.
After the conviction, and contrary to his earlier reservations, Judge Schroeder decided to stop any appeals by declaring the letter as a dying declaration.
The dying declaration is based on many questionable assumptions but is embedded in American law nonetheless. The declaration is presumed to be truthful because no one could die while telling a lie. Thus, the accused has no right to confront the accuser. Although an exception to this exception, a dying declaration of innocence is not considered inherently truthful.
This assumes that a person truly believes that lying is a bar to an afterlife. If the person who has the belief of imminent death feels they must administer justice then, they will do so. That will include lying.
A dying person, like the rest of us can harbor mistaken ideas and memories. Eyewitnesses are no more reliable when dying than otherwise. Actually, if experiencing severe trauma, a person’s memory can be less reliable.
The dying declaration is subject to coercing by authorities. When former Attorney General John Ashcroft lay hardly cognizant in a hospital room, officials attempted to coerce him into signing documents he did not approve of. Ashcroft was not facing imminent death but if officials try that stunt on a severely impaired person, they will do so on a dying one. In real life, investigators often leap to conclusions and will pressure victims and witnesses to take the investigator’s side.Unscrupulous or poorly trained investigators will have no qualms in coercing a dying person.
Leading questions are a big part of the information corruption that occurs. Rather than “can you tell me?” the questions become “was it … ?” or “It was … Blink your eyes for yes.”
Finally, the dying declarant may be mentally unable to present a true statement of facts.
Those who support the dying declaration claim it is an exception to the confrontation clause because the founders were aware of the dying declaration usage, and therefore the exception is valid. Even so, would the founders insist on a flawed notion of exception to remain an integral part of American law? And if the courts persist in a doctrine that has such validity problems is this the way American jurisprudence should work?
It seems to me that such statements standing by themselves are bad evidence. Now if the law is such that dying declarations are reasonable to obtain search warrants and do further investigation, that would be a compromise between searching for the truth and coercing the victim.
In the Jensen trial, Schroeder made the extraordinary leap that a sealed letter written weeks before a death is identical to a death bed declaration. This was an inexplicable voyage from discomfort over the change in the confrontation rule to the premise that a letter written and delivered to a neighbor weeks prior to a death is the same as a deathbed statement. Certainly, in the United States, a person fearing death in that time frame would have sufficient opportunity to avoid that death.
by Brian McCorkle
in category Rants
