7th Circuit Court Orders Issuance Of Writ Of Habeas Corpus For Convicted Murderer

Olivia Covington for www.theindianalawyer.com

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 ofChambers 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, asChambers 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.

What Has Happened To Us?

by Andrew Horning, Libertarian for 8th District US House of Representatives

During my first major political campaign in 1999, I participated in 46 debates; most of which were well-covered by establishment media. We had up to five candidates in a good number of them. Since that time, the number of debates, and of course dissemination of important information, has dramatically decreased. Concomitantly, voter interest, hope and participation has also plummeted.

Now, in Indiana’s 8^th US House District, there are apparently NO debates for the USA congressional race. There has been NO major media coverage of ANY issues or options, and many voters have already made up their minds on what they’ll do on Election Day.

This is both a criminal shame, and weird; partly because the “Two Party System” is based on division and inequality, opposition and discord, corruption and violence.

But more importantly, there are better options!

We all know that Democratic and Republican parties sell Special Deals for Special People. We’re fools to keep thinking that government will steal from the rich and give to the poor when the opposite is obviously happening.

But I’m offering peace, prosperity, unification and freedom; while at long last addressing the issue at the heart of all others: corruption.

Would that be so bad?

Can’t we at least talk about it?

…Hello?

…Anybody home?

Andrew Horning

Libertarian for 8^th District US House of Representatives

State AGs Hope To Discuss Trafficking, Interact With Cuban Legal Community

INDIANAPOLIS – As part of an ongoing multistate effort to combat human trafficking and drug trafficking, Indiana Attorney General Greg Zoeller and several other of his state AG colleagues are traveling to Cuba this week to meet with their Cuban counterparts and interact with members of the Cuban legal community.

The cost of the three-day visit to Havana, Cuba, is being handled by the Alliance Partnership, and is not paid for with Indiana tax dollars.

“We are excited to be building this bridge to the Cuban legal community as our countries are normalizing relations. Despite the differences in our legal systems, we both face serious common problems like human and drug trafficking and other transnational crime. This face-to-face meeting is the first step in creating a robust bilateral relationship that will promote the rule of law and allow cross-border collaboration on issues of mutual importance,” Zoeller said.

The meetings in Havana, officially known as the Alliance Partnership Binational AG Exchange, are a follow-up to previous meetings that the Conference of Western Attorneys General (CWAG) has organized between state AGs from the U.S. and their counterparts in Mexico and other Latin American nations.

In September 2010, Zoeller’s office hosted a CWAG Alliance Partnership training event in Indianapolis, attended by 70 prosecutors and investigators from Mexico that focused on Mexico’s rule of law.

In October 2015, Zoeller and a group of other state AGs from the U.S. attended a two-day CWAG Alliance Partnership conference in Mexico City and met with that nation’s criminal justice officials to discuss the problems of human trafficking, drug trafficking and Internet privacy.

During the upcoming conference in Havana, Zoeller and other AGs are scheduled to meet with Cuba’s attorney general, Dario Delgado Cura, where they hope to discuss issues of common concern involving the international illegal smuggling of people and drugs. The AGs are scheduled to visit the University of Havana Law School and meet with a non-governmental organization that provides continuing legal education, the National Union of Cuban Lawyers. They plan to meet with the National Organization of Law Offices, the government entity for which all Cuban trial lawyers work; and they will tour government buildings and historic landmarks. The state AGs departed through Miami on Sunday and are scheduled to return to the U.S. on Wednesday.

Zoeller has been involved for several years in multistate and binational efforts with other state AGs to combat human trafficking and urge Congress to secure the nation’s borders and enact and enforce U.S. immigration laws.  Zoeller said he hopes to continue to raise awareness of the law enforcement issues of trafficking and illegal immigration, and also encourage the advancement of the rule of law and legal education in other Latin American countries who interact with the U.S. and Indiana.

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