Judge delays Jensen homicide trial

Defense seeks appeal to state's high court

Heather Jensen

Over objection from the District Attorney’s office and victims in the case, District Judge Valerie Robison on Tuesday granted a last-minute defense motion to continue next week’s jury trial for Palisade mother Heather Jensen as her defense seeks an appeal to the Colorado Supreme Court.

The trial—which had been scheduled to start Monday with prospective jurors due to appear in court today to fill out questionnaires—was rescheduled by the judge to run between Jan. 21 to Jan. 30. This, as some 400 jury duty summonses, which were mailed to Mesa County residents in September, are now moot.

“It’s sad, but we do what we’ve got to do,” said Robert Mathena, the grandfather of William Jensen, 2, and Tyler, 4, the boys who died after overheating Nov. 27, 2012, on Grand Mesa, in their mother’s Toyota 4Runner.

Jensen’s defense said it will ask the Colorado Supreme Court to review a ruling issued by Robison earlier this month, which restricted the possible testimony of Mesa County forensic pathologist Dr. Robert Kurtzman. The judge ruled Kurtzman won’t be allowed to make any reference to whether the deaths were “medically an accident” — a blow to Jensen’s defense.

That, public defender Thea Reiff argued in a motion, flies in the face of state law.

“In fact, (Dr. Kurtzman) is statutorily required to make (manner of death) determination,” Reiff wrote. “Indeed, medical examiners are often called upon to explain to juries why they determined certain deaths to be homicides.”

Reiff’s filing continues, “Testimony regarding the manner of death Dr. Kurtzman determined in his examination is entirely proper and admissible, and is in fact what he is charged with determining pursuant to his legal duties.”

Kurtzman’s autopsy report concluded the Jensen boys died as a result of hyperthermia, or overheating, in their mother’s SUV after being left unattended. Kurtzman ruled the deaths were accidental, not homicide.

If a petition for review is filed before the Colorado Supreme Court, justices may agree to review the matter, or, reject it and send the case back to Mesa County.

Assistant District Attorney Rich Tuttle argued the defense is entitled under Colorado rules of procedure to an appeal on the issue of Kurtzman’s testimony, but only after a trial and if Jensen is convicted.

“There is a clear difference between adequate remedies available to defendants and those available to prosecutors; in cases of acquittal prosecutors are left with no meaningful appeal possibilities,” Tuttle wrote in a court filing.

Robison’s original ruling on Kurtzman’s testimony, which was issued Oct. 8, said the longtime forensic pathologist’s conclusions on accidental death in the case could potentially confuse the jury.

“It is foreseeable that the defendant will argue the death of the children was an unfortunate accident,” Robison said in her Oct. 8 ruling. “The opinion of Dr. Kurtzman as to whether the death of the children was an accident or a homicide based on medical standards is ... irrelevant. Ultimately, the jury will have to determine whether the defendant was criminally negligent.”

Jensen, 25, has pleaded not guilty to two counts of criminally negligent homicide, two counts of child abuse resulting in death and false reporting in the deaths of her sons.

In order to convict Jensen on the negligent homicide charge, prosecutors must prove Jensen failed to perceive “a substantial and unjustifiable risk that a certain result will occur,” which constituted a “gross deviation from a reasonable person’s standard of care,” according to state law.

Jensen’s defense on Tuesday filed a motion asking Robison to reconsider her Oct. 8 ruling. The judge did, but reached the same conclusion.
“The court finds that there is no probative value to the medical opinion that the children’s death was an ‘accident’ as opposed to a homicide,” Robison wrote in an order.


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“The court finds that there is no probative value to the medical opinion that the children’s death was an ‘accident’ as opposed to a homicide.” Interesting. Since that tidbit of information is not prejudicial, and since the jury might find that the coroner’s statement bears on what in legalese is called “mens rea” (aka “a guilty mind; criminal intent” ~ Black’s 4th Ed. Law Dictionary; and the legal axiom is, “actus non facit reum nisi mens sit rea”, which means “the act is not culpable unless the mind is guilty”), it sounds rather like there should be no problem in letting the jury hear that then, doesn’t it? That is, unless, of course the court is subtiley trying to help the prosecution as much as possible without openly creating an after-the-fact appealable appearance of trying to do so.
The Sentinel would be doing a huge service to its readership if in its online version it would post links to pdf files of, say, the coroner’s report, the judge’s order, public defender Thea Reiff’s petition to the Colorado Supreme Court and Rich Tuttle’s response to Reiff’s petition. The technology exists to easily do that. Under such a highly educational level of journalistic presentation of the inner mechanics and workings of the legal system, the local citizenry could decide for itself who was or was not doing a good job on behalf of the public in harmony with both state and federal constitutions.
To a very limited degree, I can understand the Sentinel’s reluctance, because if Reiff’s petition is granted it would most likely refer to what is known in legalese as “abuse of discretion”. That would amount to a judicial mistake which the “little people” would be better off not knowing about if they are to retain their open-mouthed-yokel-like awe of the justice system.
Not having a dog in this particular hunt, I have no particular problem with either Robison’s ruling or Reiff’s interlocutory appeal. They could both very well be trying to do their jobs to the best of their respective abilities. It is extremely difficult, perhaps even morally dangerous, for one person (or a jury) to speak to the intent of another person. “Acts should be judged by their tendency under the known circumstances, not by the actual intent which accompanies them.” ~ The Common Law, by Oliver Wendell Holmes, Jr.
What I do have a problem with is that had a pro se (self-represented) litigant filed that very same interlocutory appeal, there is little more than a snowball’s chance in hell that the trial would have been postponed.

While I absolutely despise what Heather Jensen is accused of doing, I despise the public’s general apathetic ignorance as to the inner workings of the legal system even more. I also despise what is known as “plea bargaining”. I believe it is unconstitutional. I believe an accused person should stand trial for exactly what the law says they are accused of doing, not what a prosecutor can intimidate them into pleading guilty to just to save time, money and work. Accordingly, I have included three articles, one of them a law review article from the Santa Clara University School of Law.
“Overcharging”, by Kyle Graham, Santa Clara University School of Law (http://bit.ly/18bWqDA),  “Prosecutors routinely abuse plea bargaining”, by Dan K. Thomasson (http://bit.ly/1ce1BuZ), “How Can Overcharging Be Ethical?” by Jacob Sullum (http://bit.ly/HNQuZX).
Any interested person who bothers to read them will understand exactly what I am talking about.

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