A northern Indiana prosecutor plans to speak to relatives of three people slain in 1998 and review evidence before deciding if he'll retry a man whose second triple-murder conviction was thrown out last week, his office said Monday.
The 7th Circuit Court of Appeals in Chicago on Friday reversed Wayne Kubsch's 2005 convictions in the killings of his 31-year-old wife, Beth Kubsch; her ex-husband, Rick Milewski; and her 10-year-old son, Aaron Milewski.
The court, in a 6-3 decision, found that a videotaped interview police conducted days after the crime with a 9-year-old girl who was a neighbor of the Milewskis was "critical evidence" jurors should have heard. The girl said she saw Rick Milewski and his son inside their South Bend home more than a half-hour after the time prosecutors said Kubsch committed the murders in his home in nearby Mishawaka.
Friday's ruling said the girl's videotaped statement should have been shown to jurors even though when she testified during Kubsch's 2005 trial she couldn't recall speaking to police or what she had said 6 ½ years earlier.
"The jury never heard evidence that, if believed, would have shown that Kubsch could not have committed the crimes," the majority wrote in its decision.
The ruling gives St. Joseph County prosecutors 120 days to begin court proceedings if they opt for a retrial.
Prosecutor Ken Cotter and his staff will be talking "with the victims' families this week, as well as reviewing the old case files" before determining what course of action they'll take in light of the ruling, said spokeswoman Jessica McBrier.
Cotter would also consult with the Indiana Attorney General's office, she said.
Kubsch's defense attorney, Alan Freedman, said if prosecutors don't seek a retrial his client will be released from the Indiana State Prison. But he said prosecutors also can ask the U.S. Supreme Court to consider the case.
He said Kubsch, 48, is "relieved" by the appeals court's ruling but mindful that the case is still pending.
"He's been through this before. He knows that this process is not over yet," Freedman said.
Kubsch was first convicted in 2000, but the Indiana Supreme Court set aside his death sentence and convictions in 2003 and ordered a retrial after finding that jurors had improperly viewed Kubsch's videotaped statement.
In a dissent to Friday's ruling overturning Kubsch's 2005 conviction, 7th Circuit Judge David Hamilton said he found "no error" in excluding the girl's videotaped statement from trial. His dissent, joined by two other judges, said "the case against Kubsch was circumstantial but powerful."
Prosecutors said Kubsch was heavily in debt and killed his wife to collect on a $575,000 life insurance policy he'd taken out on her. Her body and those of the two other victims were found in the basement of Kubsch's home.
She had been stabbed 11 times, and the two others were both stabbed and shot once in the mouth.