The full 7th Circuit Court of Appeals has ordered that writ of habeas corpus or a new trial be ordered for a man convicted of three murders and sentenced to death, finding that state courts incorrectly omitted a key piece of evidence in the defense’s case.
In the case of Wayne Kubsch v. Ron Neal, 14-1898, Wayne Kubsch was convicted in the 1998 murders of his wife, Beth Kubsch, Rick Milewski and Aaron Milewski, Rick Milweski and Beth Kubsch’s son, in Mishawaka. Kubsch was sentenced to death as a result of his convictions.
While the 7th Circuit Court wrote in its Friday opinion that the jury in the case had correctly relied on circumstantial evidence to convict Kubsch of the murders, the court also wrote that one piece of evidence that was omitted could have been used to prove Kubsch’s innocence. The evidence was a videotaped testimony of Amanda Buck, a 9-year-old girl who said in the video that she saw Aaron Milewski at 3:30 p.m. on the day of the murders, which would have undermined the state’s theory that the murders were committed between 1:53 p.m. and 2:51 p.m.
Buck was called to testify at a second trial in the case in 2005, but she claimed to have no memory of the videotaped interview with police. Kubsch’s lawyer attempted to use the transcript of the interview to refresh Buck’s memory and later to impeach her, but the prosecution objected, and the court sustained the objections. The court also refused to permit the use of Buck’s interview as a recorded recollection.
After direct appeals and post-conviction proceedings in state courts, Kubsch filed for habeas corpus relief in federal court. The district court and a panel of 7th Circuit judges found that the state court decisions passed muster, but that opinion was vacated when the full 7th Circuit Court decided to hear the case en banc.
In its opinion handed down on Friday, the 7th Circuit Court wrote that the heart of Kubsch’s case went to whether the state had violated his rights to due process under the 14th Amendment by rendering a decision contrary to the U.S. Supreme Court’s decision in the case of Chambers v. Mississippi, 410 U.S. 284 (1973).
In that case, the U.S. Supreme Court held that, “Few rights are more fundamental than that of an accused to present witnesses in his own defense. … Although perhaps no rule of evidence has been more respected or more frequently applied in jury trials than that applicable to the exclusion of hearsay, exceptions tailored to allow the introduction of evidence which in fact is likely to be trustworthy have long existed.”
In applying Chambers to Kubsch’s case, the 7th Circuit Court wrote that the excluded recording of Buck's testimony was the strongest evidence in Kubsch’s defense based on actual innocence and, as Chambers requires, was unusually reliable.
If a jury had been allowed to hear Buck’s testimony or that of her mother, the circuit court wrote that they could have reasonably acquitted or convicted Kubsch.
“All we are saying is that the jury should have been given the chance to evaluate the case based on all the evidence, rather than on the basis of a truncated record that omitted the strongest evidence the defense had,” the court wrote. “The facts of Kubsch’s case parallel so closely the facts of Chambers … that a failure to apply those cases here would amount to an unreasonable application of law clearly established by the Supreme Court.”
The 7th Circuit Court reversed the district court’s judgment and remanded the case for the issuance of a writ of habeas corpus, unless the state takes steps to give Kubsch a new trial within 120 days.
However, Judges David Hamilton, Frank Easterbrook and Diane Sykes dissented, writing in a separate opinion that the en banc majority had “crafted a new rule so narrow and case-specific as to be good apparently only for this case.”
“The residual risk or error in capital cases is deeply sobering for all of us with roles in the criminal justice system,” Hamilton wrote. “That risk offers a powerful policy argument against the death penalty. It does not provide a reason to disregard rules of evidence that apply to both sides and have been designed to ensure fair and reliable evaluation of evidence.”
St. Joseph County Prosecutor Ken Cotter told the Associated Press on Monday that he will consult with the victims' families and review case files before determining how to proceed.
Defense attorney Alan Freedman said Kubsch is relieved by the ruling and is awaiting the prosecutor's decision.