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Thursday, August 13, 2015

Ind. Decisions - 7th Circuit decided one Indiana case yesterday

In Wayne D. Kubsch v. Ron Neal (ND Ind., Simon), a 120-page contentious 2-1 opinion (the panel is Hamilton, Tinder, and CJ Wood) in a prisoner appeal, Judge Hamilton writes:

Kubsch appeals the denial of his habeas corpus petition. After being convicted of murdering his wife, her son, and her ex-husband, Kubsch was sentenced to death. Kubsch’s three principal arguments on appeal are that his conviction and sentence are unconstitutional because (a) the Indiana trial court excluded evidence of a witness’s exculpatory but hearsay statement to police, (b) he was denied effective assistance of counsel in seeking admission of the witness’s hearsay statement, and (c) his waiver of counsel and choice to represent himself at the sentencing phase of his trial were not knowing and voluntary.

We reject all three claims. Kubsch argues for a constitutional right to defend himself with otherwise inadmissible hearsay, at least if the hearsay seems sufficiently reliable and is sufficiently important to his defense. See Chambers v. Mississippi, 410 U.S. 284, 300–02 (1973). Kubsch’s evidence is not sufficiently reliable to fit that narrow constitutional exception and to have required Indiana courts to disregard long established rules against using ex parte witness interviews as substantive evidence at trial. His able trial counsel tried hard to have the statement admitted; they were not successful but also were not constitutionally ineffective.

As for the waiver of counsel claim, the Indiana Supreme Court rejected the claim in a careful discussion tailored to the facts of this case. Its rejection of the claim was not contrary to or an unreasonable application of clearly established federal law as determined by the Supreme Court of the United States. See 28 U.S.C. § 2254(d)(1); Harrington v. Richter, 562 U.S. 86, 102–03 (2011).

In addition to the exculpatory hearsay claim, the related ineffective assistance claim, and the waiver of counsel claim that we address in detail, Kubsch raises a number of other arguments on appeal, all of which are challenges to the effectiveness of his counsel. We have considered all of these additional arguments, and we reject them for the reasons Chief Judge Simon explained in his thorough opinion. See Kubsch v. Superintendent, No. 3:11CV42–PPS, 2013 WL 6229136 (N.D. Ind. Dec. 2, 2013). Accordingly, we affirm the denial of relief as to both Kubsch’s convictions and the death sentence. * * *

[p. 61] WOOD, Chief Judge, dissenting. 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 of his wife Beth, her son, Aaron Milewski, and her ex‐husband, Rick Milewski. I am not. They concede that the evidence against Kubsch was entirely circumstantial. While there is nothing wrong with circumstantial evidence, it is impossible to have any confidence in a verdict rendered by a jury that heard only part of the story. In my view, the state courts have reached a result that is inconsistent with, and an unreasonable application of, the United States Supreme Court’s decision in Chambers v. Mississippi, 410 U.S. 284 (1973). Had the contested evidence been admitted under the Chambers exception to the normal rules of evidence, a properly instructed jury may have acquitted Kubsch. It also may have convicted him: I do not argue that the state courts wrongly viewed the evidence as sufficient for conviction. But that is not the question before us. The question is whether Kubsch was able to present his entire case and obtain a reliable jury verdict. Because I believe that he was deprived of this essential protection, I would grant the writ and give the State of Indiana a new opportunity to try him.

The opinion includes an Appendix A Timeline beginning at p. 98, referred to by CJ Wood on p. 62, and a Transcript of Police Interview beginning at p. 102, referred to by CJ Wood at p. 68.

Posted by Marcia Oddi on August 13, 2015 09:15 AM
Posted to Ind. (7th Cir.) Decisions