A St. Joseph County man twice convicted in a triple homicide and sentenced to death will receive a third trial after the state announced Friday it had taken steps to begin a retrial.
The St. Joseph County Prosecutor’s Office said it has filed its notice of intent to retry Wayne Kubsch, who was convicted in the 1998 murders his wife, Beth Kubsch; Rick Milewski; and Aaron Milewski, who was Beth Kubsch and Rick Milewski’s son. Kubsch was initially convicted and sentenced to death in 2000, then was convicted and sentenced to the same on remand in 2005.
After his second trial, Kubsch filed for habeas relief, which both the U.S. District Court for the Northern District of Indiana and a panel of the 7th Circuit Court of Appeals denied. However, the full 7th Circuit reversed Kubsch’s conviction last year and remanded his case for a writ of habeas corpus, unless the state took steps to retry Kubsch within 120 days.
In reaching that decision, the en banc court – which was divided in its September 2016 opinion – determined the state courts had incorrectly omitted a key piece of evidence in the defense’s case. That evidence was the videotaped testimony of Amanda Buck, a then-9-year-old girl who testified shortly after the murders that she had seen Aaron Milewski at 3:30 p.m. on the day of the murders. That testimony 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 Kubsch’s 2005 trial, but she claimed to have no memory of the videotaped interview. Kubsch’s lawyer attempted to use the transcript of the interview to refresh Buck’s memory and later to impeach her, but the prosecution objection, and the court sustained the objections. The court also refused to permit the use of Buck’s interview as a recorded recollection.
“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 majority of the en banc court held.
The state filed a petition for certiorari with the U.S. Supreme Court, which was denied in May. The 7th Circuit then issued a mandate on May 24 ordering the state to demonstrate it had taken steps to retry Kubsch within 120. The Northern District Court then ordered that a habeas writ would be issued on Sept. 21 unless the state took steps to retry him.
In a Friday news release, the prosecutor’s office said Kubsch will be returned to the county from the Indiana State Prison “’to begin assisting in his defense and preparation for trial.’” Dates for further action will be set once he has returned.