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Friday, September 23, 2016

Ind. Decisions - Full 7th Circuit, 6-3, decides an Indiana case today, a prisoner appeal, reversing the district court, and the 7th Circuit panel

In Wayne D. Kubsch v. Ron Neal (ND Ind., Simon), a 68-page, en banc opinion, Chief Judge Wood writes:

On September 18, 1998, someone murdered three people in Mishawaka, Indiana: Beth Kubsch, Rick Milewski, and his son Aaron Milewski. Beth’s husband, Wayne Kubsch, was accused and convicted of the triple murders and sentenced to death. After direct appeals and postconviction proceedings in Indiana’s state courts, Kubsch turned to the federal court for habeas corpus relief under 28 U.S.C. § 2254. Although he raised a number of arguments in support of his petition, by now they have been distilled into one overarching question: did the state courts render a decision contrary to, or unreasonably applying, the U.S. Supreme Court’s decision in Chambers v. Mississippi, 410 U.S. 284 (1973)? The stakes could not be higher: because the state courts found Chambers inapplicable, the jury never heard evidence that, if believed, would have shown that Kubsch could not have committed the crimes. The district court and a panel of this court concluded that the state court decisions passed muster under the deferential standards imposed by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). See Kubsch v. Neal (Kubsch IV), 800 F.3d 783 (7th Cir. 2015). That opinion was vacated when the full court decided to hear the case en banc. We now reverse and remand for issuance of the writ. * * *

[ILB: The en banc panel was composed of Before WOOD, Chief Judge, and POSNER, FLAUM, EASTERBROOK, KANNE, ROVNER, WILLIAMS, SYKES, and HAMILTON.

Circuit Judge HAMILTON, joined by EASTERBROOK and SYKES, dissent, beginning on p. 54.]

The Indiana courts excluded as evidence an unsworn, ex parte interview of a nine year-old witness who later disclaimed any memory of the interview. That decision did not violate petitioner Kubsch’s constitutional rights. The exclusion certainly was not an unreasonable application of “clearly established Federal law, as determined by the Supreme Court of the United States.” 28 U.S.C. § 2254(d)(1).

To overturn Kubsch’s three murder convictions, the en banc majority has crafted a new rule so narrow and case-specific as to be good apparently only for this case: “Only if all of the factors the Court has specified, and we have described, come together must the evidence rule yield.” Ante at 34. That qualification is a red flag signaling a decision in conflict with § 2254(d)(1). True, the majority has built its argument from texts in the volumes of the United States Reports, working from Chambers v. Mississippi, 410 U.S. 284 (1973), and its progeny. But that line of cases requires careful balancing of many case specific factors, which the majority says must all point in the same direction for a rule of evidence to yield. I disagree with the majority’s new, case-specific rule, but the decisive point in this habeas case is that that new rule is not compelled by those precedents. Fair-minded judges can disagree with it. * * *

The rules of evidence, whether in codes or case law, inevitably pose a risk of excluding some reliable and probative evidence in some cases. Our criminal justice system is not infallible, but the rules of evidence have evolved to try to improve accuracy and fairness. The residual risk of error in capital cases is deeply sobering for all of us with roles in the criminal justice system. 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. The majority’s new, narrow, and case-specific exception is not compelled by Supreme Court precedent and does not support habeas relief here.

Posted by Marcia Oddi on September 23, 2016 03:53 PM
Posted to Ind. (7th Cir.) Decisions