Kubsch v. Neal

Citation838 F.3d 845
Decision Date23 September 2016
Docket NumberNo. 14–1898,14–1898
Parties Wayne Kubsch, Petitioner–Appellant, v. Ron Neal, Superintendent, Indiana State Prison, Respondent–Appellee.
CourtUnited States Courts of Appeals. United States Court of Appeals (7th Circuit)

838 F.3d 845

Wayne Kubsch, Petitioner–Appellant,
Ron Neal, Superintendent, Indiana State Prison, Respondent–Appellee.

No. 14–1898

United States Court of Appeals, Seventh Circuit.

Argued February 9, 2016
Decided September 23, 2016

Marie F. Donnelly, Attorney, Alan Michael Freedman, Attorney, MIDWEST CENTER FOR JUSTICE, LTD., Evanston, IL, for Petitioner–Appellant.

Stephen R. Creason, Attorney, Andrew A. Kobe, Attorney, James Blaine Martin, Attorney, OFFICE OF THE ATTORNEY GENERAL, Indianapolis, IN, for Respondent–Appellee.

Before Wood, Chief Judge, and Posner, Flaum, Easterbrook, Kanne, Rovner, Williams, Sykes, and Hamilton, Circuit Judges.

Wood, Chief Judge.

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 post-conviction 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, 93 S.Ct. 1038, 35 L.Ed.2d 297 (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 Anti-terrorism and Effective Death Penalty Act of 1996 (AEDPA). See

838 F.3d 847

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.



We begin by outlining what happened on the fateful day, relying on the facts that were admitted at the second trial, as recounted by the Indiana Supreme Court. See Kubsch v. State (Kubsch II ), 866 N.E.2d 726 (Ind. 2007) (second trial); see also Kubsch v. State (Kubsch I ), 784 N.E.2d 905 (Ind. 2003) (first trial), and Kubsch v. State (Kubsch III ), 934 N.E.2d 1138 (Ind. 2010) (post-conviction). As this account shows, the state's case was based entirely on circumstantial evidence; all agree that there was no direct evidence of guilt.

Wayne and Beth Kubsch were married in November 1997. It was a second marriage for both: Beth had two sons, Aaron Milewski, from her previous marriage to Rick Milewski, and Anthony Earley; and Kubsch had a son, Jonathan, who lived in Michigan with his mother, Tina Temple. Aaron lived with Rick in South Bend, Indiana, while Anthony lived with Kubsch and Beth in nearby Mishawaka. Kubsch owned the family home, as well as 11 rental properties in St. Joseph County. These properties were encumbered by mortgages totaling approximately $456,000 as of mid–1998. Kubsch also had credit-card debt exceeding $16,000. He tried paying that off by refinancing four of his rental properties, but by August 1998 the credit-card debt had reached $23,000, and by September Kubsch was falling behind in his mortgage and tax payments. Around that time, he bought a life insurance policy on Beth, with himself as the sole beneficiary; the policy was to pay $575,000 on her death.

On the morning of September 18, 1998, Beth's birthday, both Wayne and Beth Kubsch were up early. Testimony from Beth's coworker Archie Fobear established that by 6:00 a.m. Beth had already left the home that she shared with Kubsch on Prism Valley Drive in Mishawaka and was just starting to work at United Musical Instruments in Elkhart, Indiana, approximately 11 miles away. Cellular telephone records indicated that Kubsch made a call at that time from the sector just adjacent to the one covering the home. He was driving to his place of employment at Skyline Corporation, also in Elkhart; he punched in at 6:50 a.m. Cell records show that Kubsch made a telephone call at 9:11 a.m. somewhere near his workplace, and that he made another call at 10:45 a.m. from Skyline's break room. The latter call was to the home, presumably to Beth, who had finished her shift at 10:00 a.m., returned home, and paged him twice from home around 10:30 a.m.

At 10:48 a.m., a five-minute call was placed from the Kubsch home to the home of Rick Milewski. At that point Beth left the house to run some errands. A security camera at the Teacher's Credit Union shows Beth, along with her dog, in her car at a drive-up window at 11:08 a.m. There is a credit union receipt stamped 11:14 a.m. confirming a completed transaction. A little while later, at 11:52 a.m., Beth was with credit counselor Edith Pipke at the Consumer Credit Counseling Agency in South Bend. No evidence admitted at the second trial indicated where she was after she left the credit union and before she arrived for her appointment.

In the meantime, Kubsch drove back to the Prism Valley Drive house after punching out from his job at 11:13 a.m. Erin Honold, a neighbor, saw him and his car in

838 F.3d 848

the driveway between 11:30 a.m. and noon, around the time when Beth was speaking with the credit counselor. Telephone records from the house indicate that a call was made at 11:37 a.m. to American General Finance; Kevin Putz, an employee of that company, testified that he spoke to Kubsch that morning. Before leaving the house, Kubsch admitted at the second trial, he had smoked part of a marijuana joint before returning to work. Between 12:09 and 12:11 p.m., Kubsch made three more calls using his cellphone, one to the house (implying that he was no longer there) and two to Rick Milewski. He apparently interrupted Rick while Rick was speaking with his brother Dave about an upcoming hunting trip. Dave testified that Rick said that Kubsch was calling to discuss moving a refrigerator at the Prism Valley Drive house.

Beth paged Kubsch again at 12:16 p.m.; cell records indicate that at 12:18 p.m., he called the house for 31 seconds from the vicinity of Osceola, a town between Mishawaka and Elkhart. Kubsch returned to Skyline and finished smoking his joint; he did not punch back in. He made two phone calls from the break room, one at 12:40 p.m. and the other at 1:17 p.m. Between those calls, Rick called Beth at 12:46 p.m. Kubsch punched out of work again, this time for the day, at 1:53 p.m. A minute later, he called the house from Elkhart and was on the line for 46 seconds. The next call from Kubsch's cell phone came at 2:51 p.m.; it was from a sector near the house. Kubsch testified that he was at the house between 2:30 and 2:45 p.m., but that no one else was there. The state's theory was that this was approximately when he committed the murders—between his 1:53 and 2:51 p.m. phone calls.

Witnesses testified that Aaron was waiting outside Lincoln Elementary School in South Bend and that Rick picked him up there between 2:20 and 2:35 p.m. (The school is now called Lincoln Primary Center, a member of the South Bend Community School Corporation; Lincoln's after school program begins at 2:20 p.m., presumably when the school day ends. See South Bend Community School Corporation, http://sbcsc.ss10.sharpschool.com/parents/Before% 20 & % 20After% 20School% 20Care/kaleidoscope_club_after_school_program/ (last visited Sept. 23, 2016).) If so, that would narrow the possible window for Kubsch to have committed the crime down to only a few minutes. We return to this point later, in our discussion of the Chambers issue.

Around 3:15 p.m., Kubsch placed numerous calls to Beth's mother, Diane Rasor; he eventually connected on the 11th try. Cellular records indicate that by then he was driving north toward the Michigan border. Between 4:42 and 4:47 p.m. Indiana time, Kubsch made some calls picked up by the cell tower in Schoolcraft, Michigan, which is about 11 miles north of Three Rivers, Michigan, where Kubsch's son Jonathan lived with his mother. (For the sake of consistency, we use Indiana time throughout this account; in fact, though most of Indiana and most of Michigan are in the Eastern time zone, Indiana in 1998 had not yet adopted Daylight Savings Time; thus Indiana was on Eastern Standard Time in September 1998, while most of Michigan, including Three Rivers and Schoolcraft, was an hour ahead on Eastern Daylight Time.) Around 5:00 p.m., Kubsch picked up Jonathan; he also said hello to his friend Wayne Temple around 5:30 or 5:45 p.m. at the local Kmart store. He then headed back to Osceola with Jonathan, stopping for ten minutes at the home of Constance Hardy, the mother of his friend Brad. At 5:56 p.m., he made a call from the cellular region close to the Prism Valley Drive house.

838 F.3d 849

Beth's son Anthony had expected his mother to pick him up late in the afternoon after a school dance. When she did not show up, Anthony got a ride home with a friend. He arrived around 5:30 p.m., saw his mother's car and Rick's truck in the driveway, and found the house locked. Anthony used his key to enter, saw bloodstains and signs of a struggle, and discovered Rick's body...

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