Judge delays Jensen homicide trial
Defense seeks appeal to state's high court
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.