Marilyn Odendahl for www.theindianalawyer.com

A split 7th Circuit Court of Appeals denied an inmate on Indiana’s death row a chance for a new trial, finding the exclusion of a witness’s videotaped interview which could have possibly exonerated him was inadmissible as hearsay.

Wayne Kubsch was convicted of the murders of his wife, Beth, her son, Aaron Milewski, and her ex-husband, Rick Milewski, in Mishawaka in September of 1998. No evidence was found to directly link Kubsch to the crime, but Chief Judge Philip Simon of the U.S. District Court for the Northern District of Indiana described the case against the defendant as a “slow-moving accumulation of a glacier of circumstantial evidence.”

Before the 7th Circuit, Kubsch appealed the denial of a petition for habeas corpus. He argued, in part, his federal due process rights were violated because he was not allowed to present evidence from the Milewskis’ neighbors that would have given him an alibi.

The police concluded the murders took place between 1:53 and 2:51 p.m. However, a neighbor and classmate of Aaron Milewski told police in a videotaped interview that she saw her friend and his father at their home between 3 and 3:30 p.m. which was the time police had confirmed Kubsch was driving to Michigan to pick up his son.

Kubsch bolstered his claim by pointing to Chambers v. Mississippi, 410 U.S. 284 (1973) where the Supreme Court of the United States carved an exception to the hearsay rule.

In Wayne Kubsch v. Ron Neal, Superintendent, Indiana State Prison, 14-1898, the majority panel of Judges David Hamilton and John Tinder rejected that argument. The court explained the parameters set by Chambers were not met because Aaron’s classmate and neighbor; 9-year-old Amanda was not available for cross-examination at trial and her statements could not be corroborated.

Consequently, the majority concluded enforcing the rules of evidence to exclude Amanda’s recorded statement as substantive evidence was neither arbitrary or disproportionate.

“The risk of serious error is not enough, however, to open the gates of all hearsay of this type, especially where it is not corroborated as it was in Chambers and where it is not subject to meaningful cross-examination,” Hamilton wrote. “The unavoidable risk of error may offer a strong argument against the death penalty as a matter of policy, but that is not a choice available to us.”

In a forceful dissent, Chief Judge Diane Wood charged, “My colleagues are prepared to send Wayne Kubsch to his death on the basis of a trial at which the jury never heard critical evidence that, if believed, would have shown that Kubsch was not the man responsible for the horrible murders. … ”

She described the Kubsch case as being as close to Chambers as anyone is likely to find. Indeed, she contended, the excluded videotaped evidence in Kubsch was more reliable than the evidence presented to the SCOTUS in Chambers. And the exclusion of the videotape undermined Kubsch’s ability to show another individual committed the three murders.