Date: 08-12-2015

Case Style: Wayne Kubisch v. Ron Neal

Case Number: 14-1898

Judge: W

Court: United States Court of Appeals for the Seventh Circuit on appeal from the Northern District of Indiana (Lake County)

Plaintiff's Attorney:

Defendant's Attorney:

Description: Wayne 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 longestablished
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
No. 14-1898 3
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.
I. Factual and Procedural Background
A. Court Proceedings
The State of Indiana charged Kubsch with murdering
Beth Kubsch, Aaron Milewski, and Rick Milewski: his wife,
her son, and her ex-husband. The three were murdered in
Kubsch’s home on September 18, 1998. Kubsch was first tried
and found guilty in May 2000. The jury recommended and
the judge imposed the death penalty. On direct appeal the
Indiana Supreme Court held that the first trial violated
Kubsch’s constitutional rights when the prosecution used his
post-Miranda silence as evidence against him. Based on that
and other errors, the court vacated the convictions and ordered
a new trial. See Kubsch v. State, 784 N.E.2d 905 (Ind.
2003).
Kubsch’s second trial in March 2005 is our focus. Once
more a jury convicted Kubsch of the three murders. There
were two big differences in the second trial, in addition to
avoiding the errors that had required the new trial. First,
Kubsch offered as evidence the videotaped interview of
Amanda Buck, a nine-year-old neighbor of Aaron and Rick
Milewski. Amanda told a police detective four days after the
murders that she had seen both Aaron and Rick alive and
4 No. 14-1898
well at their home on the day of the murders at a time for
which Kubsch has a solid alibi. The judge excluded her recorded
statement as hearsay and as having no impeachment
value. Second, unlike the first trial, Kubsch decided to waive
counsel and represent himself in the sentencing phase of the
trial. He also declined to present any mitigating evidence.
He told the jury he agreed with the State that no mitigating
factors outweighed the aggravating factors supporting a
death sentence, but he insisted on his innocence. He ended
his brief statement to the jury by saying he did not care what
penalty was imposed.
Again the jury’s verdict was for death and the judge imposed
the death penalty. The state courts affirmed the convictions
and sentence on direct appeal, Kubsch v. State, 866
N.E.2d 726 (Ind. 2007), and on post-conviction review,
Kubsch v. State, 934 N.E.2d 1138 (Ind. 2010).
Kubsch then petitioned for a writ of habeas corpus in
federal court, raising many more issues than we address in
this opinion. The district court denied relief on all claims,
Kubsch v. Superintendent, No. 3:11CV42–PPS, 2013 WL
6229136 (N.D. Ind. Dec. 2, 2013), and then denied Kubsch’s
Rule 59 motion, Kubsch v. Superintendent, No. 3:11CV42–PPS,
2014 WL 1260021 (N.D. Ind. March 24, 2014). Kubsch appeals.
We review the district court’s decision de novo. E.g.,
Harris v. Thompson, 698 F.3d 609, 622 (7th Cir. 2012).
B. The Case Against Kubsch
Chief Judge Simon aptly described the case against
Kubsch as a “slow-moving accumulation of a glacier of circumstantial
evidence.” 2013 WL 6229136, at *3. A critical factor
was that Kubsch’s account of his own actions changed
No. 14-1898 5
dramatically between the night of the murders and his trial
testimony, after he knew the constraints imposed by physical
and other evidence such as telephone records.
Kubsch lived with his wife Beth in Mishawaka, Indiana.
They shared the home with Beth’s twelve-year-old son, Anthony
Earley. September 18, 1998 was Beth’s birthday. She
had planned to meet Kubsch for lunch. Beth was supposed
to pick up Anthony late in the afternoon after a school
dance. When she did not appear, Anthony got a ride home
with a friend. At about 5:30, he found Beth’s car in the
driveway, along with a truck that her ex-husband Rick
Milewski was using. The house was locked. Only Wayne,
Beth, and Anthony had keys. No one seemed to be home.
There was no sign of forced entry.
As Anthony looked around the main floor of the house,
though, he saw bloodstains and signs of a struggle. He
opened the door to the basement. He saw Rick lying at the
foot of the stairs. The handle of a large kitchen knife was
sticking out of his chest. Anthony went down the stairs, realized
Rick was dead, and also found the body of his elevenyear-old
step-brother Aaron lying next to Rick.
Anthony ran for help. Mishawaka police officers arrived
about 5:45 p.m. Both Aaron and Rick had multiple stab
wounds. The police officers found no sign of gunshot
wounds. They also found no sign of Beth. After finding no
one else in the house, the police secured the scene until they
could obtain a search warrant.
That day Wayne Kubsch had finished work at an area
factory shortly before 2:00 p.m. Late in the afternoon, he was
returning to Mishawaka from picking up his son in Three
6 No. 14-1898
Rivers, Michigan. He dropped off his son at Kubsch’s
grandmother’s home. Kubsch arrived home about 6:45 and
found the house surrounded by police. Kubsch was told that
Aaron and Rick were dead and that no one knew where Beth
was.
Kubsch soon went with police officers to the South Bend
police department for questioning by detectives. That initial
interview was audio-and video-recorded. Kubsch appeared
preoccupied and careful, not distraught or frantic. He made
no reference to the search for his missing wife, though there
were obviously powerful reasons to be worried about her
safety. He showed little emotion.
In that first interview on the night of the murders,
Kubsch gave the police his first account of his movements
and activities that day. Kubsch said that he and Beth had
planned to meet for lunch to celebrate her birthday, but that
he had called her to cancel because he had been late for work
that morning. He also said that he had gotten permission to
leave work early for lunch so he could buy Beth a birthday
present (something he did not actually do until much later in
the day). He told the police that he had gone home at lunch
but could not get inside because he had forgotten his house
key. He also did not mention that he had gone home a second
time—shortly after work—before going to pick up his
son in Michigan.
Kubsch ended the interview. His friend Dave Nichols
and Nichols’ wife testified that Kubsch called them about
8:00 or 8:30 that evening and said two things known to the
killer but not yet known to the police. He told Nichols that
Beth was “gone,” which Nichols understood to mean that
No. 14-1898 7
she was dead, not missing.2 At that time, Beth’s body had not
yet been found. And while “gone” might be explained away
as ambiguous, Kubsch also told Nichols that Rick and Aaron
had been stabbed and shot. Not until autopsies were done the
next day did the police learn that Rick and Aaron, in addition
to their multiple stab wounds, had each been shot in the
mouth.
At about 9:00 p.m., police officers on the scene discovered
Beth’s body. She was just a few feet from Rick and Aaron,
but she was hidden underneath the staircase behind
blankets that young Anthony had hung up as a sort of “fort”
or hiding place a few weeks earlier. She had been stabbed
eleven times. Her head was almost entirely covered in gray
duct tape. Her body was “hog-tied” with the same tape, her
wrists and ankles all bound together behind her back. (An
autopsy also showed a blow to the back of her head and defensive
wounds on her hands and wrists.) The officers quickly
told the detectives at the South Bend station that Beth had
been found murdered. The detectives then brought Kubsch
back for more questioning later that evening. He declined to
talk with them at that point, but he gave them permission to
search his car.
The investigation of physical evidence turned up no evidence
pointing conclusively to Kubsch. The only blood
found on the scene belonged to the victims. The police did
not find evidence of the victims’ blood on Kubsch or his
2 Nichols’ wife, Gina DiDonato, confirmed his account of the telephone
call and in response to a juror’s question made clear that Kubsch
told them that Beth was dead.
8 No. 14-1898
clothing. They also found no DNA or fingerprint evidence
that pointed to him or anyone else as the killer.
Various items of physical evidence were consistent with
Kubsch’s guilt. In isolation none is conclusive. Taken together
they point toward Kubsch as the killer, though not definitively.
In Kubsch’s car the police found the wrapper of a roll
of duct tape of the type used to bind Beth. A bloody roll of
duct tape at the top of the stairs matched the wrapper and
the tape on Beth’s body. A cloth fiber from the tape roll
matched a fiber from the carpet of Kubsch’s car. A receipt for
purchase of the duct tape, three days before the murders,
was found in Kubsch’s car.
The police also found in Kubsch’s car a wadded-up receipt
from a deposit Beth had made the morning of the murders
at the drive-through window of her credit union. The
presence of that receipt in Kubsch’s car contradicted the account
he had given police the evening of the murders. (Even
Kubsch’s explanation at trial, that he found it next to the
home telephone on his first stop at home that day, was improbable
if not physically impossible. That explanation
would have required Beth to do some improbable backtracking
between two related errands.)
Of course, the locked house was also evidence that pointed
toward Kubsch. The knife in Rick’s chest was from the set
of kitchen knives upstairs. A kitchen pan also had Beth’s
blood on it. As the prosecutor pointed out in closing argument,
if the killer had been a stranger, it seems improbable
that he would have counted on tools found in the home—the
knife, the pan, and the duct tape—to carry out the murders.
No. 14-1898 9
Telephone records played an important role in the investigation
and at trial. Recall that Kubsch had told police that
he returned home at lunch but could not get in without his
key. Home telephone records showed that was false. A call
had been placed from the home telephone while Beth was
running her errands that morning. Kubsch testified at trial
that he had in fact gotten into the house—through the garage—where
he said he made the call, smoked part of a marijuana
cigarette, and then left to return to work around noon.3
Kubsch also made numerous calls with his cell phone on
the day of the murders. Records of those calls showed his
approximate locations at different times during the day. He
left work for the day just before 2:00. Though he told the police
the night of the murders that he had then gone directly
to Michigan to pick up his son, he later admitted he had first
actually returned to his home. He claimed that he had
stopped at home for a few minutes between 2:30 and 2:45
and that no one else was home. At 2:51 Kubsch placed a cell
phone call from a cell sector near his home. Cell phone records
and other evidence showed that Kubsch then drove to
Michigan to pick up his son. The State’s theory has been that
Kubsch had an opportunity to commit the murders in the
time between approximately 2:00 and 3:00.
Another important discrepancy in Kubsch’s story was
that at 12:09 p.m. he called Rick Milewski and, according to
Rick’s brother, asked Rick to meet him at his house at 3:00
3 By the time Kubsch testified at trial, of course, he knew about the
telephone records and other evidence that contradicted in several key
respects the story he had first told the police in his interview the night of
the murders.
10 No. 14-1898
p.m. to help move a refrigerator. That request is hard to understand
if Kubsch was planning to be on his way to Michigan
by then. (The prosecution’s theory was that Kubsch
planned to have Rick find Beth’s body but that Rick and Aaron
showed up too early, before Kubsch had left, so he killed
them too.)
Yet another discrepancy in Kubsch’s story came from
Beth’s mother, Diane Rasor. She testified that when she
talked with Kubsch on the afternoon of the murders, she
mentioned that she had not been able to get in touch with
Beth all day (Beth’s birthday, recall). Kubsch reassured her,
telling her that he had talked with Beth by phone and knew
Beth was running a number of errands and was not at home
to answer the phone. Several days after the murders, Kubsch
told Rasor that he had not talked to Beth the day she was
killed and he wished he had.
Kubsch also had a significant financial motive to murder
Beth. The prosecution showed that the couple was in deep
financial distress in 1998. Their cash flow was consistently
negative. Early that year Kubsch had refinanced eight of the
rental properties he owned, converting all available equity
into cash and substantially increasing the total debt to about
$424,000. Several credit cards or lines of credit were near
their maximum limits. About three months before the murders,
Kubsch had bought a new insurance policy on Beth’s
life for $575,000, with himself as the sole beneficiary. Kubsch
claimed at trial that he had not realized they were in such
difficult financial straits, but he also testified that he took
care of the couple’s bills, as well as their credit cards and
lines of credit, and of course he had undertaken all the refinancing
earlier that year.
No. 14-1898 11
As Chief Judge Simon summarized:
The case against Kubsch was entirely circumstantial.
There was no eyewitness, no DNA evidence,
no fingerprint testimony, indeed no forensic
evidence at all that linked Kubsch to the
murders. There was, however, moderately
strong evidence of motive and opportunity. But
most damning to Kubsch was a series of lies,
inexplicable omissions, and inconsistencies in
what Kubsch told the police and later testified
on the witness stand, and these statements—in
conjunction with a few pieces of circumstantial
evidence—are what almost assuredly got
Kubsch convicted.
2013 WL 6229136, at *1.
II. Exclusion of Exculpatory Hearsay Evidence
Kubsch argues that he was convicted of the murders
through a violation of his federal due process right to present
a defense. The trial court did not allow him to introduce
as substantive evidence a witness’s videotaped interview
with a police detective four days after the murders. Nineyear-old
Amanda Buck and her mother Monica were interviewed
together by the detective. The Bucks lived across the
street from two of the victims, Rick and Aaron Milewski. In
the recorded twenty-minute interview, Amanda told the detective
that she had seen Rick and Aaron alive and well at
their home when she got home from school and daycare, between
3:30 and 3:45 p.m. on the day of the murders, Friday,
September 18, 1998.
12 No. 14-1898
The date and time are critical. Based on telephone records
and other evidence, the State argued at trial that
Kubsch murdered the three victims between approximately
2:00 and 3:00 p.m. Kubsch’s own testimony placed him at his
home between approximately 2:30 and 2:45, though he
claimed no one else was there. Cell phone records show that
by 3:30 p.m. that day, Kubsch was well on his way to the
town of Three Rivers, Michigan to pick up his son for the
weekend. He did not return to his home in Mishawaka, Indiana
until about 6:45, after the bodies of Rick and Aaron
had been discovered there.
The importance of the constitutional evidentiary issue
cannot be overstated. If the account given by Amanda in her
recorded interview is correct, then Kubsch could not have
committed the three murders for which he has been sentenced
to death. And apart from Kubsch’s own claims of innocence—impeached
as they are by his shifting accounts of
his movements that day—Amanda’s recorded interview is
the only support for Kubsch’s alibi defense.
Kubsch bases his due process claim on Chambers v. Mississippi,
410 U.S. 284 (1973), and its progeny. In Chambers the
Supreme Court reversed a murder conviction on direct appeal.
The Court held that the defendant was denied a fair
trial when the trial court prevented him from impeaching a
witness he had called and excluded hearsay evidence that
the same witness had confessed to three different acquaintances
that he was the killer. Kubsch relies on the hearsay
portion of the Chambers analysis and its often-quoted statement
that “the hearsay rule may not be applied mechanistically
to defeat the ends of justice.” 410 U.S. at 302. The actual
holding of Chambers is considerably narrower, however, for
No. 14-1898 13
it depended on the combination of the trial court’s limits on
cross-examination and its exclusion of the multiple hearsay
confessions, and the particular facts and circumstances of the
case, which we describe in more detail below. See id. at 302–
03.
We address this issue in four steps. Part A explains the
details of Amanda’s statement and its treatment by the trial
court and the Indiana Supreme Court. Part B explains the
Chambers line of cases and the general constitutional standard
for the right to present a defense, as well as its application
in cases involving hearsay. Part C considers the factors
indicating that Amanda’s recorded statement is or is not reliable
for purposes of Chambers. Part D addresses the issue of
our standard of review, which turns out to be rather involved,
and explains our conclusion that Kubsch is not entitled
to relief.
A. The Statement in the State Courts
Four days after the murders, Sergeant Mark Reihl interviewed
nine-year-old Amanda Buck and her mother Monica
Buck together. The interview was in a police station and was
audio-and video-recorded. The Bucks lived across the street
from Rick and Aaron Milewski, and Sergeant Reihl asked
them what they remembered from the day of the murders.
Amanda answered most of the questions, but Monica added
her own recollections, including specific times. Amanda recalled
seeing both Aaron and Rick at their home across the
street after she got home from school and daycare, which
would have been between 3:30 and 3:45 on the afternoon of
the murders.
14 No. 14-1898
Amanda’s account was specific about many details, including
what she was doing and which truck Rick was driving.
She specifically recalled seeing Rick go into his kitchen
and return with a glass. Her account was specific about the
time and date. She recalled that she and Aaron were planning
to go on a school field-trip the next day, a Saturday, and
that Aaron had not shown up for the trip. Her mother Monica
recalled having seen Aaron (but not Rick) when she got
home shortly after 4:00 p.m. after going to the bank to deposit
her paycheck, which she usually did on Friday.
The interview was disclosed to the defense, but Kubsch
did not call Amanda or Monica as witnesses at his first trial,
which took place less than two years after they spoke to the
police. At the second trial in 2005, though, Kubsch called
then sixteen-year-old Amanda as a witness. She testified that
she did not remember whether she saw Rick and Aaron on
the afternoon of the murders. She also testified that she did
not even remember being interviewed by the police seven
years earlier. After her brief testimony, and outside the presence
of the jury, Amanda reviewed the recording of her interview.
That apparently did not refresh her recollection because
Kubsch offered no further testimony from her. Kubsch
never called Monica to testify.
The real purpose of calling the sixteen-year-old Amanda
was to put into evidence the video recording of the nineyear-old
Amanda. Kubsch first tried to introduce the recording
as substantive evidence. The recording was hearsay, of
course. It was an out-of-court statement offered to prove the
truth of its content. At trial, Kubsch argued that it should be
admitted as a recorded recollection. Indiana Rule of Evidence
803(5), like its federal counterpart, recognizes an ex-
No. 14-1898 15
ception to the rule against hearsay for a “recorded recollection.”
Recorded recollections are records of what a witness
once knew when her memory was fresh but now no longer
recalls. A recorded recollection also “accurately reflects the
witness’s knowledge.” Ind. R. Evid. 803(5)(C); see also Fed.
R. Evid. 803(5)(C). Examples might include a diary or journal
entry or a memorandum to file, as well as recorded interviews.

This recorded statement does not meet the last requirement
of Rule 803(5). Amanda would have needed to “vouch
for the accuracy” of the statement for it to qualify as a recorded
recollection. Kubsch v. State (Kubsch II), 866 N.E.2d 726,
734 (Ind. 2007), quoting Gee v. State, 389 N.E.2d 303, 309 (Ind.
1979). As the trial court found and the Indiana Supreme
Court affirmed, “Buck could not vouch for the accuracy of a
recording that she could not even remember making.”
Kubsch II, 866 N.E.2d at 735. The videotaped statement did
not qualify as a recorded recollection under Indiana evidence
law. Id.4
4 The recording would also not be admissible under Federal Rule of
Evidence 803(5), which is substantially identical to its Indiana counterpart
and has the same requirement that the declarant endorse the accuracy
of the prior recording. See, e.g., United States v. Green, 258 F.3d 683,
689 (7th Cir. 2001); United States v. Schoenborn, 4 F.3d 1424, 1427–28 (7th
Cir. 1993). In fact, neither Kubsch nor our dissenting colleague has identified
any federal or state decision indicating that the recording of
Amanda’s interview would have been admissible under the law of any
American jurisdiction. See also, e.g., State v. Perry, 768 N.E.2d 1259, 1264–
65 (Ohio App. 2002) (under identical recorded recollection rule, affirming
exclusion of video recording of interview with eight-year-old child
who, when testifying at trial two years later, did not remember the interview
and did not testify that the recording correctly reflected her
knowledge of events at the time it was made).
16 No. 14-1898
Kubsch next offered the videotaped statement to impeach
Amanda’s trial testimony with extrinsic evidence of a
prior inconsistent statement. See Ind. R. Evid. 613(b). As noted,
Amanda testified that she simply did not remember talking
to the police and did not remember whether she saw her
friend and neighbor Aaron between 3:30 and 3:45 p.m. the
day of the murders.
The trial court sustained the State’s objection to admitting
the statement as impeachment evidence because Amanda
“testified to no positive fact that is subject to impeachment.”
Tr. 3120. The Indiana Supreme Court agreed with respect to
Amanda’s trial testimony that she did not remember what
happened or whom she saw on the day of the murders.
Kubsch II, 866 N.E.2d at 735. However, Amanda also testified
at one point that she “probably didn’t see” Aaron at home
between 3:30 and 3:45 p.m. on the day of the murders. Tr.
2985. The Indiana Supreme Court held that this testimony
was properly subject to impeachment and that the trial court
had erred by not allowing the attempted impeachment.
Kubsch II, 866 N.E.2d at 735.
The Indiana Supreme Court also held, however, that the
error was harmless. Id. In the debate in the trial court about
the recording, the State said that if Kubsch were allowed to
use Amanda’s recorded statement to impeach her trial testimony,
the State would respond with additional evidence
impeaching the impeachment. The prosecutor asserted that
three days after the recorded interview, Lonnie Buck (Monica’s
father and Amanda’s grandfather) had called Sergeant
Reihl and reported that both Amanda and Monica had been
mistaken about the day they recalled and that they had described
for him not the day of the murders but the day be-
No. 14-1898 17
fore. Monica had followed up with a later statement saying
that she and Amanda had not seen Aaron on the day of the
murders. At the time of the 2005 trial, the State was prepared
to call both Monica Buck and Sergeant Reihl to impeach the
proposed impeachment of Amanda.
The Indiana Supreme Court explained its finding of
harmless error:
Amanda’s testimony should have been impeached,
but other testimony would have supported
hers had she been impeached, and
therefore, her testimony likely did not contribute
to the conviction. See Pavey v. State, 764
N.E.2d 692, 703 (Ind. Ct. App. 2002) (“An error
in the admission of evidence is not prejudicial
if the evidence is merely cumulative of other
evidence in the record.”).
866 N.E.2d at 735. Just before this passage, the court
dropped a footnote rejecting Kubsch’s federal constitutional
claim under Chambers:
The availability of this testimony is also the
reason why Kubsch’s claim that he was denied
his federal constitutional right to present a defense
fails. See Chambers v. Mississippi, 410 U.S.
284, 302 (1973) (protecting defendant’s due
process right by recognizing an exception to
application of evidence rules where evidence
found to be trustworthy).
Id. at 735 n.7.
Unless we keep in mind the difference between substantive
evidence and impeachment evidence, which may be
18 No. 14-1898
considered not for the truth of the matter asserted but only
to evaluate the credibility of other evidence, these terse passages
finding harmless error may seem mistaken. After all, if
Amanda’s statement were admissible as substantive evidence
to prove that what she said in the interview was true,
then the mere fact that there was some contradictory evidence
would not justify its exclusion. (The State’s proffered
impeachment did not include any admission by Amanda
herself that she had been mistaken.) Conflicting evidence
would simply present an ordinary question for a jury to resolve,
as the trial judge recognized, see Tr. 3015, though a
question of great importance because the statement would, if
believed, exonerate Kubsch.
When we focus, however, as the trial judge did on the
limited role of impeachment evidence, the harmless error
finding is clearly sound as a matter of state evidence law.
The only thing Amanda said in her trial testimony that was
subject to impeachment was that she “probably didn’t see”
Aaron on the afternoon of the murders. As the trial judge
pointed out, “She gave no substantive evidence in this case
whatsoever.” Tr. 3032. Amanda’s narrow substantive statement
that she “probably didn’t see” Aaron on the afternoon
of the murders was not inculpatory. It had essentially no
probative value for the jury, so there would have been no
point in impeaching her, and the exclusion of her statement
for impeachment purposes could not have contributed to
Kubsch’s convictions.
The Indiana Supreme Court’s rejection of the distinct
Chambers claim in footnote 7 is the focus of our scrutiny. In
the trial court, Kubsch had not asserted a distinct federal,
constitutional claim under Chambers. He made that federal
No. 14-1898 19
argument in his direct appeal, though, and the Indiana Supreme
Court elected to decide the issue on its merits rather
than find a procedural default. Footnote 7 was quite sensible
to the extent that the recording was being offered only to
impeach the non-inculpatory “probably didn’t see him” portion
of Amanda’s trial testimony. The problem is that that
reasoning seems not to have actually engaged with Kubsch’s
argument under the federal Constitution that the recording
should have been admitted as substantive evidence. Again, the
mere fact that the State would have offered contradictory evidence
would have presented a jury question, not a basis for
excluding the evidence in the first place. We explore these
issues further in Part D on the standard of our review of the
state court’s decision.
B. The Right to Present a Defense
The exclusion of Amanda’s recorded statement was not
contrary to Indiana evidence law, as the Indiana Supreme
Court decided. That conclusion does not resolve the federal
constitutional question, though it informs our answer to that
question. In a series of decisions led by Chambers v. Mississippi,
410 U.S. 284 (1973), the Supreme Court has held that the
accused in a criminal case has a federal constitutional right
to offer a defense. Both the accused and the state “must
comply with established rules of procedure and evidence
designed to assure both fairness and reliability in the ascertainment
of guilt and innocence.” Id. at 302. In some circumstances,
however, the constitutional right to defend takes
precedence over rules of evidence. This can include the hearsay
rules, as Chambers itself showed.
Chambers is the closest Supreme Court case on its facts, so
to understand the scope of this right to defend with hearsay,
20 No. 14-1898
we consider that case in some detail. Leon Chambers was
accused of murdering a police officer in a chaotic disturbance,
essentially a small riot, as police were trying to arrest
another person. Another man named McDonald had confessed
to the murder: “McDonald had admitted responsibility
for the murder on four separate occasions, once when he
gave the sworn statement to Chambers’ counsel and three
other times prior to that occasion in private conversations
with friends.” Id. at 289. McDonald was arrested after confessing
to Chambers’ counsel, but he was released when he
repudiated that confession at his own preliminary hearing.
Id. at 287–88.
Chambers called McDonald as a witness at trial. McDonald’s
written confession was admitted into evidence, but
McDonald again repudiated it. 410 U.S. at 291. Chambers
was not allowed to test McDonald’s memory or otherwise to
challenge his testimony. The state courts relied on the old
“voucher” rule under which a party who called a witness
was deemed to have vouched for his credibility and so was
not allowed to impeach him even if he was actually adverse.
The Supreme Court found, however, that the voucher rule
was no longer realistic and had been applied to limit unfairly
Chambers’ examination of a critical witness who was in
fact adverse. Id. at 295–98.
After his attempts to impeach McDonald were stymied,
Chambers then offered the testimony of three friends to
whom McDonald had confessed. Their testimony about
No. 14-1898 21
McDonald’s confessions was excluded as hearsay. Id. at 292–
93. The jury convicted Chambers of the murder.5
On direct appeal, the Supreme Court reversed based on
the combination of the voucher rule’s barring impeachment
of McDonald and the exclusion of the hearsay confessions.
Id. at 302–03. The Court noted that declarations against interest
have long been treated as sufficiently reliable to be excepted
from rules against hearsay. Id. at 298–99. The Court
found that the excluded confessions “bore persuasive assurances
of trustworthiness” that brought them “well within the
basic rationale of the exception for declarations against interest”
and were “critical to Chambers’ defense.” Id. at 302.
The Court concluded: “In these circumstances, where constitutional
rights directly affecting the ascertainment of guilt
are implicated, the hearsay rule may not be applied mechanistically
to defeat the ends of justice.” Id. The combination
of the limits on impeachment and the exclusion of the confessions
led the Court to hold that “under the facts and circumstances
of this case the rulings of the trial court deprived
Chambers of a fair trial.” Id. at 303.
Chambers does not stand alone. It is the key precedent in a
line of cases considering constitutional challenges to rules of
evidence that restrict the defense of an accused. See Washington
v. Texas, 388 U.S. 14, 22 (1967) (rejecting state evidence
5 The Supreme Court’s account of the facts was deliberately terse. It
made no mention at all, for example, of the case’s racial dimensions and
the civil rights boycott at the heart of the events in a small town in rural
Mississippi in 1969. For a more complete account that emphasizes the
gap between local realities and formal legal recognition of civil rights,
see Emily Prifogle, Law and Local Activism: Uncovering the Civil Rights History
of Chambers v. Mississippi, 101 Cal. L. Rev. 445 (2013).
22 No. 14-1898
rule that allowed accused accomplices to testify for prosecution
but not for defense); Green v. Georgia, 442 U.S. 95, 97
(1979) (per curiam) (vacating death sentence where defendant
was barred from using same out-of-court confession that
prosecution used to obtain death penalty against declarant);
Crane v. Kentucky, 476 U.S. 683, 691 (1986) (rejecting state
court’s wholesale exclusion of testimony about circumstances
of defendant’s confession); Rock v. Arkansas, 483 U.S. 44, 56
(1987) (rejecting state rule excluding all hypnotically refreshed
testimony as applied to bar defendant’s own testimony);
Montana v. Egelhoff, 518 U.S. 37 (1996) (upholding
state rule barring consideration of evidence of voluntary intoxication
in determining mens rea); United States v. Scheffer,
523 U.S. 303 (1998) (upholding military rule of evidence barring
use of polygraph test showing “no deception” in denial
of drug use by defendant); Holmes v. South Carolina, 547 U.S.
319, 330 (2006) (rejecting state rule barring defendant from
introducing evidence of third-party guilt when prosecution
has introduced forensic evidence that, if credited, is strong
proof of defendant’s guilt).
In the Chambers line of cases, the Court has balanced
competing interests, weighing the interests in putting on a
full and fair defense against the interests in orderly procedures
for adjudication and use of reliable evidence that can
withstand adversarial scrutiny. In striking this balance, the
Court has recognized that “State and federal rulemakers
have broad latitude under the Constitution to establish rules
excluding evidence from criminal trials.” Holmes, 547 U.S. at
324 (brackets and internal quotation marks omitted), quoting
Scheffer, 523 U.S. at 308. Those rules are then put into practice
by trial judges “called upon to make dozens, sometimes
hundreds, of decisions concerning the admissibility of evi-
No. 14-1898 23
dence” in a criminal trial. Crane, 476 U.S. at 689. The latitude
exercised by rulemakers and the trial judges they empower
proves that the right to “present a complete defense” is not
absolute. Id. at 690, quoting California v. Trombetta, 467 U.S.
479, 485 (1984). Nevertheless, “to say that the right to introduce
relevant evidence is not absolute is not to say that the
Due Process Clause places no limits upon restriction of that
right.” Montana v. Egelhoff, 518 U.S. 37, 42–43 (1996) (plurality
opinion).
The general constitutional standard can now be stated
this way: rules of evidence restricting the right to present a
defense cannot be “arbitrary or disproportionate to the purposes
they are designed to serve.” Rock, 483 U.S. at 56. The
most recent in the Chambers line of cases explained that the
Court has struck down as “arbitrary” those restrictions that
“excluded important defense evidence but that did not serve
any legitimate interests.” Holmes, 547 U.S. at 325. We have
applied this constitutional standard to grant habeas relief in
strong cases. E.g., Harris v. Thompson, 698 F.3d 609 (7th Cir.
2012); Sussman v. Jenkins, 636 F.3d 329 (7th Cir. 2011). We
have also denied relief where there was room for reasonable
jurists to disagree. E.g., Dunlap v. Hepp, 436 F.3d 739 (7th Cir.
2006); Horton v. Litscher, 427 F.3d 498, 504 (7th Cir. 2005).
1. The Parity Principle
One way a state rule of evidence may be arbitrary is
where it restricts the defense but not the prosecution. Several
cases in the Chambers line have emphasized this “‘parity’
principle: a state rule that restricts the presentation of testimony
for the defense but not the prosecution will generally
be deemed arbitrary.” Harris, 698 F.3d at 632, citing Akhil
Reed Amar, Sixth Amendment First Principles, 84 Geo. L.J. 641,
24 No. 14-1898
699 (1996). For example, Washington v. Texas struck down a
state rule allowing alleged accomplices to testify against each
other but forbidding them from testifying for each other. 388
U.S. at 22. Green v. Georgia struck down another violation of
the parity principle. In that case state courts excluded hearsay
evidence that the defendant tried to introduce in his capital
sentencing hearing after the state had used that same
hearsay evidence against his accomplice in the accomplice’s
trial. 442 U.S. at 96–97.
The parity approach to evaluating reliability enables “defendants
to benefit from the balance that the state tries to
strike when its own evidence-seeking self-interest is at
stake.” See Amar, 84 Geo. L.J. at 699. If the rule excluding
evidence is in fact the product of a genuine balancing of interests
by the state, that weighs in favor of respecting the
balance by regarding the evidence as unreliable no matter
which side it favors. See id.
Nothing in the record indicates that the State would have
been able to introduce Amanda’s recorded statement if it had
been inculpatory rather than exculpatory. Whether inculpatory
or exculpatory, Amanda “could not vouch for the accuracy
of a recording that she could not even remember making,”
and her statement would not qualify as a recorded recollection
regardless. Kubsch II, 866 N.E.2d at 735.
The State thus seems to have struck a genuine balance
that excludes hearsay evidence like this no matter whom it
benefits. But that is not the end of the matter. The Chambers
line of cases can also protect the accused from a restrictive
evidentiary rule that is disproportionate to its purposes.
That leads us to the question of reliability.
No. 14-1898 25
2. Reliability
Reliability is the core of the hearsay rule and its many exceptions.
See Federal Rules of Evidence, Article VIII, Advisory
Committee Notes (1972). Our adversarial system relies
first and foremost on in-court testimony. In court, a trier of
fact may watch and listen to a declarant whose testimony is
offered to prove the truth of its contents, and adverse parties
may further test such testimony through vigorous crossexamination.
“The principal justification for the hearsay rule
is that most hearsay statements, being made out of court, are
not subject to cross-examination.” Rice v. McCann, 339 F.3d
546, 551 (7th Cir. 2003) (Posner, J., dissenting); accord, Federal
Rules of Evidence, Article VIII, Advisory Committee
Notes; 30 Wright & Graham, Federal Practice and Procedure
§ 6325 (1997).
When deciding whether to fashion a hearsay exception,
the central question is whether the circumstances and content
of an out-of-court statement give the court confidence
that the statement is sufficiently reliable to admit as evidence
despite the inability to test it directly in court. See, e.g.,
Chambers, 410 U.S. at 298–99 (“A number of exceptions have
developed over the years to allow admission of hearsay
statements made under circumstances that tend to assure
reliability and thereby compensate for the absence of the
oath and opportunity for cross-examination.”); Fed. R. Evid.
807(a)(1) (residual hearsay exception requires “equivalent
circumstantial guarantees of trustworthiness”).
The hearsay portion of Chambers thus turned on whether
McDonald’s hearsay confessions bore sufficient indications
of reliability that a mechanical application of the state hearsay
rule violated Chambers’ right to defend himself at trial.
26 No. 14-1898
The Chambers Court identified four factors that together provided
“considerable assurance” of the reliability of the excluded
confessions. First, each confession was made spontaneously
to a close acquaintance of the declarant shortly after
the murder. Second, each statement was corroborated by
other evidence. Third, the statements were against the declarant’s
own interest. Fourth, the declarant was available at
trial for cross-examination. Id. at 300–01.
Green v. Georgia also addressed the exclusion of hearsay
testimony. Two men, Green and Moore, participated in a
rape and murder. Moore had been convicted and sentenced
to death. At his trial and sentencing, the state had used
against him his out-of-court confession to a friend that he
had fired the fatal shots. Yet when Green was being sentenced
and offered the same evidence to show that he was
less culpable than Moore, it was excluded as hearsay. 442
U.S. at 96–97. The Supreme Court reversed, emphasizing the
state’s use of the evidence against Moore as perhaps the
“most important” reason for trusting the reliability of the
testimony. Id. at 97. But the Court also made note of other
“substantial reasons” to treat the confession as reliable. The
confession was made spontaneously to a close friend, it was
against Moore’s penal interest, there was no reason to believe
Moore had any ulterior motive to make it, and there was
ample corroborating evidence. “In these unique circumstances,”
the Court wrote, “the hearsay rule may not be applied
mechanistically to defeat the ends of justice.” Id., quoting
Chambers, 410 U.S. at 302.
C. Amanda’s Statement—Reliable or Not?
Chambers and Green both reversed the exclusion of another
person’s hearsay confession against penal interest when
No. 14-1898 27
there were substantial indications that the confession was
reliable. The problem posed by Amanda Buck’s recorded interview,
and specifically by whether she saw Aaron and Rick
Milewski on the afternoon of the murders or on another day,
is quite different.
Weighing in favor of reliability, the interview was recorded,
so there is no doubt about what was said, and the interview
took place just a few days after the events in question,
when memories were fresh. In addition, Amanda was quite
detailed and specific in her account. She had nothing to gain
by lying and there is no indication that she did so.
Other factors weigh against her statement’s reliability,
however. The extent of corroboration was central to the reasoning
in Chambers. McDonald’s four independent confessions
corroborated each other. They were also corroborated
by the testimony of other witnesses: one who saw McDonald
shoot the officer, another who saw him with a gun immediately
afterward, and another who knew he had owned a gun
like the murder weapon and later replaced it with another
similar gun. Chambers, 410 U.S. at 293 n.5, 300. Furthermore,
in Green the Court described the corroborating evidence
there as “ample,” and of course the state had treated the other
man’s confession to firing the fatal shots as sufficiently reliable
to use it to sentence him to death. 442 U.S. at 97.
In this case, by contrast, there simply is no corroboration
of Amanda’s statement on the critical point, which is whether
Aaron and Rick were at their home alive and well between
3:30 and 3:45 on the day they were murdered.6 (No corrobo-
6 Kubsch points out that Rick Milewski was driving not his own
black truck but a white truck that he had borrowed from his brother. In
28 No. 14-1898
ration, that is, other than Monica’s initial statement that she
also saw Aaron at home that afternoon, a statement that
Monica later corrected, that was never offered as evidence,
and that could not have been admitted as substantive evidence
to corroborate Amanda’s statement.) The minimal corroboration
for Amanda’s recorded statement distinguishes
this case from Chambers and Green and their reasoning. See
Rice, 339 F.3d at 550 (affirming denial of habeas relief in part
because state court found hearsay statements in question
were not corroborated).
The availability of cross-examination was also central to
Chambers: “Finally, if there was any question about the truthfulness
of the extrajudicial statements, McDonald was present
in the courtroom and was under oath. He could have
been cross-examined by the State, and his demeanor and responses
weighed by the jury.” 410 U.S. at 301.
In this respect, as well, the evidence here is quite different
from the confessions in Chambers. Unlike the declarant in
Chambers, Amanda was essentially unavailable for crossexamination.
She took the stand at trial but testified that she
did not remember being interviewed by the police or what
she said to them. “A declarant is considered to be unavailable
as a witness if the declarant … testifies to not remembering
the subject matter.” Ind. R. Evid. 804(a)(3); Fed. R. Evid.
804(a)(3).

her statement, Amanda said that Rick was driving a white truck that
day. But as Kubsch also acknowledges, Rick had borrowed that truck
from his brother a few weeks before the murders. The color of the truck
does not corroborate Amanda’s statement about which afternoon she
saw Rick and Aaron at home.
No. 14-1898 29
In addition, during the recorded interview, Amanda was
never pushed on the critical details—the date and time she
saw Aaron and Rick at their home. The interviewing officer
was simply taking her account as she spoke in an interview
in the early stages of the investigation. Amanda was not under
oath, and Sergeant Reihl did not test her story to see how
certain and accurate she might have been. Sergeant Reihl’s
gentle questioning, which was surely appropriate for his
purpose at the time, was not remotely like cross-examination
of the alibi witness in a murder trial where the stakes are life
and death. There was no cross-examination here; there was
not even a mild challenge.
By comparison, when a witness is unavailable, it is clear
that even former testimony is admissible under the rules of
evidence only if it is offered against a party who had both an
opportunity and a similar motive to develop that witness’s
testimony by direct, cross-, or redirect examination. Ind. R.
Evid. 804(b)(1); Fed. R. Evid. 804(b)(1).
Moreover, if the recorded statement had been admitted,
the State would have been unable to test its accuracy
through cross-examination. The prosecutor would have been
stuck questioning a witness who did not even remember
making the statement. See Fed. R. Evid. 804(a)(3) advisory
committee note (“the practical effect” of lack of memory “is
to put the testimony beyond reach”); 2 McCormick on Evidence
§ 253 (7th ed.) (a declarant who does not remember
the subject matter of her testimony “is simply unavailable by
any realistic standard”).
In the adversarial system of Anglo-American law, we put
great trust in the power of cross-examination to test both the
honesty and the accuracy of testimony. It is virtually an arti-
30 No. 14-1898
cle of faith that cross-examination is the “greatest legal engine
ever invented for the discovery of truth.” California v.
Green, 399 U.S. 149, 158 (1970), quoting 5 Wigmore on Evidence
§ 1367. Without cross-examination to test “any question
about the truthfulness” of Amanda’s recorded statement,
a powerful assurance of reliability present in Chambers
is absent here. Chambers, 410 U.S. at 301; see also Christian v.
Frank, 595 F.3d 1076, 1085 (9th Cir. 2010) (reversing grant of
habeas relief under Chambers; witness’s “unavailability contrasts
sharply with the availability of McDonald in Chambers,
which the Supreme Court of the United States stressed greatly
enhanced the reliability of the extrajudicial statements in
that case”).7
7 Our dissenting colleague contends that this case is like Chambers
because Kubsch, like Chambers, tried to show that someone else committed
the murders—Kubsch’s long-time friend Brad Hardy. Post at 95–96.
We disagree. In Chambers, the evidence against McDonald would have
exonerated Chambers; there was no evidence that they acted together.
Readers of the dissent might think there was a similar either-or dynamic
at work here. There was not. The prosecution argued that Hardy had
either helped Kubsch or had been set up by Kubsch as his fall guy.
Hardy testified in both of Kubsch’s trials, though at the time of the
first trial he was charged with conspiring with Kubsch to commit the
murders. (The charges were later dismissed.) Kubsch called Hardy on
the day of the murders at 9:11 a.m. Hardy and his mother, Constance
Hardy, each testified that Constance drove Hardy to Kubsch’s workplace
two hours later when Kubsch began his early lunch break. Hardy testified
that Kubsch then drove him to a parking lot near the Kubsch house
and asked him to sneak up to the house from the rear to see if Beth was
home. Hardy also testified that the day after the murders Kubsch asked
him to lie about their activities the day before. (Kubsch denied Hardy’s
account.)
No. 14-1898 31
D. The Standards of Review and Their Application
To win a federal writ of habeas corpus, Kubsch must
show that he is in custody in violation of the Constitution or
laws or treaties of the United States. 28 U.S.C. § 2254(a).
Since the Antiterrorism and Effective Death Penalty Act
(AEDPA) amended § 2254 in 1996, though, if a state court
has adjudicated a federal claim on the merits, it is not
enough for the petitioner to show a violation of federal law.
The petitioner must also show that the state court adjudication
of the claim “resulted in a decision that was contrary to,
or involved 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), or “resulted in a
decision that was based on an unreasonable determination
of the facts in light of the evidence presented in the State
court proceeding.” 28 U.S.C. § 2254(d)(2). On Kubsch’s claim

Phone records showed that Kubsch again called Brad Hardy on the
day of the murders at 4:44 p.m. It is undisputed that Kubsch arrived at
Brad and Constance Hardy’s house 45 minutes later and stayed for an
hour before going to his home. The defense argued that this visit was for
the purpose of “invit[ing] [Brad] out to dinner that night.” Tr. at 3301. It
is curious that, on the evening of his wife’s birthday—when Kubsch
claims not to have seen Beth all day and after Beth’s mother called him to
say that she was concerned about not hearing from Beth—Kubsch would
take an hour-long detour to Hardy’s house just to extend a dinner invitation,
especially when he had spoken to Hardy just 45 minutes earlier. In
light of this curious detour, the fact that Beth’s credit cards were later
found in the woods near Hardy’s house could be viewed as implicating
Kubsch as much as Hardy. In short, the “significant evidence pointing to
Hardy” did not necessarily tend to exonerate Kubsch, as the dissent suggests
and in contrast to the evidence related to Gable McDonald in
Chambers.
32 No. 14-1898
under Chambers, our focus is on the state court’s legal analysis
under subsection (d)(1), not factual findings under (d)(2).
We agree with the district court that the Indiana Supreme
Court adjudicated on the merits Kubsch’s federal constitutional
claim under Chambers. Footnote 7 of the state court’s
opinion made that much clear, see Kubsch II, 866 N.E.2d at
735 n.7, so we must evaluate the decision under § 2254(d)(1).
Section 2254(d)(1) has two distinct prongs, the narrow “contrary
to” prong and the broader “unreasonable application”
prong.
1. “Contrary to” Federal Law?
On the first prong, the Indiana Supreme Court’s adjudication
of the Chambers claim was not “contrary to Y clearly
established Federal law, as determined by the Supreme
Court of the United States.” Because no Supreme Court cases
“confront ‘the specific question presented by this case,’ the
state court’s decision could not be ‘contrary to’ any holding
from” that Court. Woods v. Donald, 575 U.S. —, 135 S. Ct.
1372, 1377 (2015) (per curiam) (summarily reversing grant of
habeas petition), quoting Lopez v. Smith, 574 U.S. —, 135 S.
Ct. 1, 4 (2014) (per curiam). Under § 2254(d), clearly established
federal law includes only “the holdings, as opposed to
the dicta,” of Supreme Court decisions. White v. Woodall, 572
U.S. —, 134 S. Ct. 1697, 1702 (2014), quoting Howes v. Fields,
565 U.S. —, 132 S. Ct. 1181, 1187 (2012).
To note again just the most obvious differences between
this case and Chambers, Amanda did not make her statement
spontaneously to a close acquaintance, her statement was
not against interest, her statement was not corroborated, and
she was not subject to cross-examination about the state-
No. 14-1898 33
ment. Any of those distinctions would be enough to demonstrate
that the Indiana Supreme Court did not confront
“facts that are materially indistinguishable from a relevant
Supreme Court precedent” and arrive at the opposite result.
See Williams v. Taylor, 529 U.S. 362, 405 (2000).
2. “Unreasonable Application” of Federal Law?
The second and broader prong, whether the Indiana Supreme
Court’s rejection of Kubsch’s claim under Chambers
was, also in the terms of § 2254(d)(1), an “unreasonable application”
of clearly established federal law as determined
by the Supreme Court of the United States, poses a more difficult
question. The state court’s rejection of the Chambers
claim was at best incomplete and at worst wrong and unreasonably
so. That poses a methodological question on which
federal law is not settled. We explore that methodological
question below but ultimately conclude that Kubsch’s claim
under Chambers fails whether or not we apply deferential review
under AEDPA.
The narrow holding of Chambers, based on the combination
of the restrictions on impeachment and the exclusion of
multiple reliable hearsay confessions by a declarant subject
to cross-examination, topped off by the “under the facts and
circumstances of this case” qualification, see 410 U.S. at 303,
means that state courts have considerable latitude in interpreting
and applying Chambers. See Dunlap v. Hepp, 436 F.3d
739, 744 (7th Cir. 2006), quoting Yarborough v. Alvarado, 541
U.S. 652, 664 (2004). Nevertheless, the broader standard that
has emerged from Chambers and subsequent cases is that
courts cannot impose restrictions on defense evidence that
are arbitrary or disproportionate to the purposes they are
designed to serve. See Holmes, 547 U.S. at 325; Rock, 483 U.S.
34 No. 14-1898
at 56. The general standard requires a balance of competing
interests.
The open texture of that standard and the important factual
differences between this case and Chambers—lack of corroboration
and lack of opportunity for meaningful crossexamination—mean
that the Indiana courts could have rejected
Kubsch’s claim under Chambers without unreasonably
applying clearly established federal law as determined by
the Supreme Court of the United States. See 28 U.S.C. §
2254(d)(1); see generally, e.g., Woods v. Donald, 135 S. Ct. at
1377 (“where the precise contours of a right remain unclear,
state courts enjoy broad discretion in their adjudication of a
prisoner’s claims”), quoting White v. Woodall, 572 U.S. —, 134
S. Ct. at 1705, quoting in turn Lockyer v. Andrade, 538 U.S. 63,
76 (2003). Only rarely has the Supreme Court “held that the
right to present a complete defense was violated by the exclusion
of defense evidence under a state rule of evidence.”
Nevada v. Jackson, 133 S. Ct. 1990, 1991–92 (2013) (per curiam)
(summarily reversing grant of habeas relief on Chambers
claim: “no prior decision of this Court clearly establishes that
the exclusion of this evidence violated respondent’s federal
constitutional rights”).
Thus, when habeas relief has been granted on a Chambers
claim, the facts were a much closer fit to the Supreme Court
precedents. In Cudjo v. Ayers, 698 F.3d 752 (9th Cir. 2012), for
example, the state court had found that the hearsay testimony
was “trustworthy and material exculpatory evidence”
that should have been admitted under state law but still declined
to grant relief under Chambers. See id. at 763. Cudjo
thus held that its facts were “materially indistinguishable”
from Chambers. Id. at 767, quoting Williams, 529 U.S. at 405. In
No. 14-1898 35
discussing the rule that defendants have a constitutional
right to present a complete defense, Cudjo also commented
that “it would be extremely difficult to say that a state trial
court engaged in an ‘unreasonable application’ of this rule
when faced with new factual circumstances.” Id.; cf. Cudjo,
698 F.3d at 770–74 (O’Scannlain, J., dissenting).
Accordingly, if the Indiana Supreme Court had announced
its rejection of Kubsch’s claim under Chambers
without any explanation at all, then we would affirm the denial
of habeas relief without further ado. See Harrington v.
Richter, 562 U.S. 86, 98 (2011) (“Where a state court’s decision
is unaccompanied by an explanation, the habeas petitioner’s
burden still must be met by showing there was no reasonable
basis for the state court to deny relief.”).
But the Indiana Supreme Court was not silent on the
point. It rejected Kubsch’s claim under Chambers in a footnote
consisting of one sentence and one citation:
The availability of this testimony [from Monica
Buck and Sergeant Reihl to the effect that
Amanda had been mistaken] is also the reason
why Kubsch’s claim that he was denied his
federal constitutional right to present a defense
fails. See Chambers v. Mississippi, 410 U.S. 284,
302 (1973) (protecting defendant’s due process
right by recognizing an exception to application
of evidence rules where evidence found to
be trustworthy).
866 N.E.2d at 735 n.7.
This terse footnote shows that the state court was aware
of the federal constitutional claim and the governing Su-
36 No. 14-1898
preme Court precedent. It cited the page of the Chambers
opinion finding that the multiple hearsay confessions by
McDonald “bore persuasive assurances of trustworthiness”
and should have been admitted because they were so critical
to the defense. Keeping in mind the presumption that state
courts know and follow the law, see Woodford v. Visciotti, 537
U.S. 19, 24 (2002) (per curiam), we find it sufficiently clear
that the state court found that Amanda’s statement was not
sufficiently reliable to require its admission under Chambers.
The state court adjudicated the merits, so its decision requires
deference under AEDPA.
The problem is that the only reason actually given by the
Indiana Supreme Court—the availability of contradictory
testimony from Amanda’s mother and Sergeant Reihl—is the
weakest reason that might support that result. It was a good
reason to treat as harmless the exclusion of the recorded
statement as impeachment, but not as substantive evidence.
The mere existence of conflicting or impeaching evidence is
not a sufficient basis, or even a reasonable basis, for rejecting
the statement as substantive evidence. Conflicting evidence
would simply present a fact issue for the jury to weigh after
hearing all of that evidence. Perhaps the state court also had
in mind the stronger reasons for excluding Amanda’s recorded
statement, especially the lack of corroboration and the
lack of an opportunity for cross-examination, but if so it did
not mention them.
What is the role of the federal courts when a state court
offers such a weak reason for a result that could be a reasonable
application of federal law? See Brady v. Pfister, 711 F.3d
818, 824–27 (7th Cir. 2013) (identifying problem and discussing
Supreme Court’s limited guidance). We must review the
No. 14-1898 37
actual reason deferentially. But if that reason was unreasonable,
do we proceed to de novo review? Or do we, instead of
doing de novo review, hypothesize reasons the court could
have used to see if they are reasonable under AEDPA? See
Stitts v. Wilson, 713 F.3d 887, 893 (7th Cir. 2013) (raising but
not answering this question).8
We have interpreted Richter as instructing federal courts
to consider what arguments “could have supported” a state
court decision when the state court “gave some reasons for
an outcome without necessarily displaying all of its reasoning.”
Hanson v. Beth, 738 F.3d 158, 163–64 (7th Cir. 2013) (affirming
denial of relief on Chambers claim based on exclusion
of evidence); see also Jardine v. Dittmann, 658 F.3d 772, 777
(7th Cir. 2011) (“This court must fill any gaps in the state
court’s discussion by asking what theories ‘could have supported’
the state court’s conclusion.”), quoting Richter, 562
U.S. at 102.9
The Indiana Supreme Court’s stated rationale for rejecting
Kubsch’s claim can be described fairly as incomplete. So
8 In Stitts we considered whether to “look through” a state supreme
court’s ruling to a lower state court’s decision. In this case, we cannot
“look through” the Indiana Supreme Court’s ruling on the Chambers
claim. The claim was not presented to the trial court, and capital appeals
in Indiana go directly to the Indiana Supreme Court.
9 Makiel v. Butler, 782 F.3d 882, 905–06 (7th Cir. 2015), presented a related
but distinct issue. In Makiel, the state court gave two reasons why
the exclusion of certain evidence did not violate the petitioner’s right to
present a complete defense. One reason was flawed but the second was
sound. The sound second reason was enough to call for AEDPA deference.
Here, by contrast, the state court gave only one reason to reject the
constitutional claim, and that reason is flawed.
38 No. 14-1898
long as we have an obligation under § 2254(d)(1) to fill gaps
or to complete the state court’s reasoning, the result here is
not an unreasonable application of federal constitutional
law, and relief must be denied on this claim.10
10 Most circuits endorse this approach that allows and even requires
federal courts to complete or fill the gaps in state courts’ reasoning in
support of results that are not unreasonable in light of Supreme Court
precedent. See Foxworth v. St. Amand, 570 F.3d 414, 429 (1st Cir. 2009)
(“on habeas review, the ultimate inquiry is not the degree to which the
state court’s decision is or is not smoothly reasoned; the ultimate inquiry
is whether the outcome is reasonable”); Rashad v. Walsh, 300 F.3d 27, 45
(1st Cir. 2002) (where federal courts were troubled by gaps in state
court’s rationale: “It is not our function, however, to grade a state court
opinion as if it were a law school examination.”); Cruz v. Miller, 255 F.3d
77, 86 (2d Cir. 2001) (“deficient reasoning will not preclude AEDPA deference”);
Collins v. Sec’y of Pennsylvania Dep’t of Corr., 742 F.3d 528, 548
(3d Cir. 2014) (while state court adjudication of Strickland claim consisted
of “admittedly cursory statements, AEDPA requires that we determine
what arguments or theories supported … or could have supported, the
state court’s decision”) (citation and internal quotation marks omitted);
Robinson v. Polk, 438 F.3d 350, 358 (4th Cir. 2006) (“In assessing the reasonableness
of the state court’s application of federal law, therefore, the
federal courts are to review the result that the state court reached, not
whether its decision was well reasoned.”) (brackets, citations, and internal
quotation marks omitted); Higgins v. Cain, 720 F.3d 255, 261 (5th Cir.
2013) (“In considering whether the state court’s decision constituted an
unreasonable application of clearly established federal law, ‘a federal
habeas court is authorized by Section 2254(d) to review only a state
court’s “decision,” and not the written opinion explaining that decision.’”),
quoting Neal v. Puckett, 286 F.3d 230, 246 (5th Cir. 2002) (en
banc); Holder v. Palmer, 588 F.3d 328, 341 (6th Cir. 2009) (“The law requires
such deference to be given even in cases, such as this one, where
the state court's reasoning is flawed or abbreviated.”); Williams v. Roper,
695 F.3d 825, 831 (8th Cir. 2012) (“In reviewing whether the state court’s
decision involved an unreasonable application of clearly established federal
law, we examine the ultimate legal conclusion reached by the court,
No. 14-1898 39
3. De Novo Review
There is room to argue, however, that the state court’s
footnote 7 was not just incomplete but wrong, and unreasonably
so. And there is room to argue that where the state
court has provided a rationale for its decision, the federal
courts should focus their attention on the reasons actually
given rather than hypothesize a better set of reasons. See
Wiggins v. Smith, 539 U.S. 510, 528–29 (2003) (holding state
court’s rationale unreasonable without considering other
possibilities); Frantz v. Hazey, 533 F.3d 724, 737–38 & n.15 (9th
Cir. 2008) (en banc) (confining analysis to reasons actually
given by state court, without hypothesizing alternative rationales);
Oswald v. Bertrand, 374 F.3d 475, 483 (7th Cir. 2004)
(“reasonableness of a decision ordinarily cannot be assessed
without considering the quality of the court’s reasoning,”
though “ultimate question Y is not whether the state court
gets a bad grade for the quality of its analysis but Y whether
the decision is an unreasonable application of federal law”).
As we explained in Brady v. Pfister, when evaluating a state
court’s reasoning in habeas cases, the Supreme Court has fo-

not merely the statement of reasons explaining the state court's decision.”)
(citation omitted); Williams v. Trammell, 782 F.3d 1184, 1199–1200
(10th Cir. 2015) (“uncertainty” regarding rationale for a sparse state court
decision “does not change our deference;” federal court still must identify
theories that could have supported the decision); Lee v. Comm’r, Alabama
Dep’t of Corr., 726 F.3d 1172, 1210–14 (11th Cir. 2013) (applying
AEDPA deference to incomplete state court opinion; state court need not
“show its work” by mentioning all circumstances relevant to Batson
claim); but see Frantz v. Hazey, 533 F.3d 724, 737–38 & n.15 (9th Cir. 2008)
(en banc) (confining evaluation of “unreasonable application” prong to
actual reasons given).
40 No. 14-1898
cused on the reasons actually given by state courts without
engaging in the exercise of trying to construct reasons that
could have supported the same result. See 711 F.3d at 826,
citing Rompilla v. Beard, 545 U.S. 374 (2005), and Wiggins v.
Smith, 539 U.S. 510 (2003). So AEDPA deference toward state
court decisions that reach defensible results for bad or incomplete
reasons is not necessarily settled law at this point.
This debate over methodology under § 2254(d) may be
ripening for a resolution. In Hittson v. Chatman, 576 U.S. —,
135 S. Ct. 2126 (2015), a short opinion concurring in denial of
certiorari reminded circuit and district judges of the Court’s
decision in Ylst v. Nunnemaker, 501 U.S. 797 (1991), in which
the Court instructed that when federal habeas corpus courts
review an unexplained order from a state appellate court,
they should “look through” that unexplained order and focus
on the last reasoned rejection of the federal claim. See
501 U.S. at 803–04. In the Hittson concurring opinion, Justice
Ginsburg (joined by Justice Kagan) wrote that the Nunnemaker
“look through” presumption remains valid after Richter.
See 135 S. Ct. at 2127, discussing Richter, 562 U.S. at 99–
100, citing Nunnemaker with approval; see also Brumfield v.
Cain, 576 U.S. —, 135 S. Ct. 2269, 2276 (2015) (applying Nunnemaker
“look-through” approach to evaluate and reverse
lower state court’s factual findings supporting denial of evidentiary
hearing under § 2254(d)(2)); Johnson v. Williams, 568
U.S. —, — n.1, 133 S. Ct. 1088, 1094 n.1 (2013) (citing Nunnemaker
with approval); Hawthorne v. Schneiderman, 695 F.3d
192, 199–201 (2d Cir. 2012) (Calabresi, J., concurring) (arguing
that practice under Richter of inventing hypothetical reasons
for state court decision promotes neither comity nor efficiency).

No. 14-1898 41
Justice Ginsburg’s opinion in Hittson argued that the
Richter practice of hypothesizing rationales for state court
rejections of federal claims should be limited to cases where
no state court explained the rejection, and that where the
state court’s real reasons can be ascertained, the inquiry under
§ 2254(d)(1) “can and should be based on the actual ‘arguments
or theories [that] supported … the state court’s decision.”
135 S. Ct. at 2128–29, quoting Richter, 562 U.S. at 102.
This statement may imply that federal courts should shift to
de novo review as soon as they find that the reason actually
given by a state court was unreasonable, without trying to
hypothesize alternative rationales.
Because of this uncertainty in whether we may “complete”
the state court’s reasoning on this Chambers claim, it is
prudent for us also to consider Kubsch’s Chambers claim under
a de novo standard of review. Even if we conclude that
the state court’s footnote 7 was an unreasonable application
of Chambers to reject Kubsch’s claim, that would not necessarily
entitle Kubsch to habeas relief. He would still need to
show on the merits that his constitutional rights were in fact
violated, as § 2254(a) requires for a grant of actual relief. See
Brady, 711 F.3d at 827 (applying de novo review in the alternative);
Mosley v. Atchison, 689 F.3d 838, 852–54 (7th Cir. 2012)
(where state court decision was unreasonable under
§ 2254(d)(1), remanding to district court to determine merits
de novo under § 2254(a)).
If de novo review applies, the issue is closer than under
§ 2254(d)(1), but we conclude that the exclusion of Amanda’s
recorded statement as substantive evidence did not violate
Kubsch’s federal constitutional right to put on a defense. As
explained above, Amanda’s statement is not corroborated on
42 No. 14-1898
the critical facts by any other evidence, and she was never
subjected to meaningful cross-examination. Even during the
recorded interview itself, she was never pushed by the interviewer
about the critical day and time, nor about the possibility
that her memory had confused events of two different
days.
Those facts distinguish this case from Chambers, which
was, on its face, a very narrow opinion. Recall that the holding
in Chambers depended on the combination of the limits
the “voucher rule” placed on cross-examination and the exclusion
of the three hearsay confessions, which were directly
corroborated in many ways and had other indications of reliability.
410 U.S. at 302–03.
Even applying the more general principles from the
Chambers line of cases, we are not persuaded that the Constitution
requires the general rule against hearsay to give way
to Kubsch’s interest in offering as substantive evidence a
recorded, exculpatory interview of a witness who was in effect
not available for cross-examination and whose account
does not have significant corroboration on the critical points.
A vast literature attempts to explain the complex edifice
of American hearsay law. A helpful and authoritative explanation
came from the Advisory Committee on the Federal
Rules of Evidence, published as an introductory note to the
hearsay article in the Rules. A helpful and more detailed
survey is available in 30 Wright & Graham, Federal Practice
and Procedure §§ 6321–6333 (1997). As noted above, issues
of reliability and trustworthiness are front and center in deciding
whether to relax the general prohibition on hearsay.
Our legal system relies primarily on in-person testimony
subject to meaningful cross-examination, the “greatest en-
No. 14-1898 43
gine ever invented for the discovery of truth,” to test evidence.
See California v. Green, 399 U.S. 149, 158 (1970), quoting
Wigmore on Evidence § 1367; see also Rice v. McCann,
339 F.3d 546, 551 (7th Cir. 2003) (Posner, J., dissenting) (“The
principal justification for the hearsay rule is that most hearsay
statements, being made out of court, are not subject to
cross-examination.”).
Lest this reasoning seem like reflexive devotion at the altar
of cross-examination, we draw help from Professors
Wright and Graham to explain why this is so important.
Their treatise identifies four dangers of hearsay: (1) defects
in the declarant’s perception; (2) defects in the declarant’s
memory; (3) defects in narration by both the declarant and
the witness; and (4) the declarant’s lack of sincerity or honesty.
30 Wright & Graham, Federal Practice and Procedure
§§ 6324. Without an opportunity for cross-examination before
the trier of fact, it can be difficult to test hearsay for
these defects. Most hearsay exceptions have evolved from
situations providing circumstantial guaranties of trustworthiness
that seem to be sufficient substitutes for that direct
scrutiny in a trial. See id., § 6333.
In the case of Amanda’s recorded statement, the third
and fourth dangers seem minimal. The recording eliminates
the risk that Amanda’s statement would be relayed inaccurately,
and she had no apparent difficulty describing what
she remembered. The nine-year-old Amanda in the interview
was also a disinterested witness, old enough to know
she should tell the truth and with no apparent reason to deceive
the police intentionally.
The first two dangers remain, however, with no meaningful
protections under these circumstances. There simply is
44 No. 14-1898
no way to test directly, by cross-examination or otherwise,
the accuracy of the nine-year-old Amanda’s memories of the
past several days, to test the possibility that she was misremembering
what and whom she had seen where and on
which days. The accuracy of her memory was not tested or
even challenged during the recorded interview itself, nor
was the importance of being accurate about the time and
date brought to her attention in the interview. Nor is there
other evidence corroborating the recorded account as to the
critical date and time.
In light of these considerations, it was not arbitrary or
disproportionate to enforce the rules of evidence to exclude
Amanda’s recorded statement as substantive evidence. Accepting
Kubsch’s theory, on the other hand, would upset a
good deal of the rules of evidence developed over generations
to find the right balance so that trials can be decided
fairly and on the basis of reliable evidence. As the prosecutor
said in the trial court here, we could just show juries a series
of videotaped, ex parte witness interviews, but that is not
how we do trials in our legal system. There is no indication
in the narrow Chambers opinion that such a sweeping result
was intended then. Nor do the Supreme Court’s later cases in
the Chambers line endorse such a sweeping result.
Kubsch argues that he seeks only a narrow exception,
comparable to the narrow decision in Chambers. He tries to
limit the rule he seeks to hearsay witness statements that are
recorded (ensuring accuracy of transmission), about recent
events (fresh in the witness’s memory), detailed, and from
disinterested witnesses, at least where the evidence would
be critical to the defense. With inexpensive recording technology
widely available, however, we can expect that such
No. 14-1898 45
evidence will often be available. Kubsch’s theory would thus
expand dramatically the availability, at least to the accused,
of hearsay evidence that cannot be subjected to meaningful
cross-examination. Considering the Chambers issue de novo,
we believe Kubsch is seeking a significant and unwarranted
expansion of existing doctrine, unmoored from the critical
assurances that corroboration and cross-examination provided
in Chambers itself.
We do not doubt that hearsay rules sometimes exclude
evidence that is in fact accurate. They also exclude a good
deal of evidence that is unreliable. Those rules have evolved
based on experience to prevent the use of inaccurate and unreliable
hearsay in trials. We also must recognize the risk of
error in our human and fallible criminal justice system, especially
in a death-penalty case. That is why Chambers was decided
as it was, though the sentence there had been life in
prison rather than death. In that exceptional case, the familiar
rules of evidence worked arbitrarily to exclude reliable
evidence of innocence.
The risk of serious error is not enough, however, to open
the gates to 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. 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.
See, e.g., Glossip v. Gross, 576 U.S. —, 135 S. Ct. — (2015) (all
opinions).
Accordingly, we affirm the district court’s denial of relief
on the Chambers claim. The state court’s result on this question
was not an unreasonable application of federal law. And
even if the state court’s incomplete and unsatisfactory ra-
46 No. 14-1898
tionale had amounted to an unreasonable application of federal
law, Kubsch’s claim does not prevail on the merits under
de novo review.
III. Ineffective Assistance of Counsel for Amanda’s Statement
Kubsch approaches Amanda’s statement from a different
angle by arguing that even if his stand-alone claim under
Chambers fails, his trial counsel provided ineffective assistance
by failing to do a better job in trying to have the recording
admitted into evidence. The Indiana Supreme Court
rejected this claim on appeal from the denial of postconviction
relief, finding that it was barred by the doctrine of
res judicata. Kubsch III, 934 N.E.2d at 1143 n.2.
Under the controlling standard from Strickland v. Washington,
466 U.S. 668, 687 (1984), Kubsch must show (1) that
his trial lawyers’ performance was deficient, meaning that it
fell below an objective standard of reasonableness in light of
prevailing professional norms, id. at 690, and (2) that the deficient
performance prejudiced his case, meaning that there
is a reasonable probability that, but for the lawyers’ unprofessional
errors, the result of the proceeding would have
been different, id. at 694. Kubsch has not made either showing.

The Indiana Supreme Court’s res judicata holding was
reasonable as far as it went. To the extent that Kubsch was
arguing that the recorded interview should have been admitted
and would have made a difference in the trial, the
state court had already decided those questions against
Kubsch in the direct appeal. Kubsch II, 866 N.E.2d at 734–35.
A post-conviction petitioner cannot avoid claim preclusion
No. 14-1898 47
by merely repackaging an earlier claim. E.g., Reed v. State,
856 N.E.2d 1189, 1194 (Ind. 2006).
Kubsch’s post-conviction argument on this score was not,
however, merely a repackaging of the claim that the recording
should have been admitted as evidence. He also argued
and tried to offer evidence that if his trial lawyers had taken
some additional steps, the interview would have been admitted
into evidence and was reasonably likely to change the
jury’s verdict. The state court’s res judicata holding did not
engage that evidence and argument.
Even if we review this claim de novo, however, Kubsch
has not shown that his trial lawyers were constitutionally
deficient. It is not as though the trial lawyers overlooked the
issue. Several months before the second trial, Amanda testified
in a deposition where her mother was also present. See
Tr. 2983–84; 3013. We do not have that transcript, but the
lawyers obviously did. And they had the opportunity to talk
to Amanda’s mother Monica as well. The lawyers made clear
in their post-conviction testimony that they had no real interest
in anything Amanda or Monica might say from the
witness stand; they wanted the recording in evidence. PCR
Tr. 106; Tr. 3028.
The trial transcript shows they worked hard to convince
the trial court to admit the recording. See Tr. 2982–90; 3010–
35; 3112–23. They were not successful because they could not
lay a sufficient foundation to admit the recording under
Rule 803(5) as recorded recollection, and as explained above,
the inability to use it to impeach the non-inculpatory “probably
didn’t see him” portion of Amanda’s brief trial testimony
was harmless. To change this result, Kubsch needed to
come forward in the post-conviction proceedings with evi-
48 No. 14-1898
dence or new legal arguments that were available to his trial
lawyers, clearly should have been presented, and were reasonably
likely to turn the tide. As the district court explained,
he failed to do so. Kubsch, 2013 WL 6229136, at *39–
40.
Kubsch criticizes his trial lawyers for having failed to
correct or challenge what he says is misinformation about
the reports that Amanda and her mother had been mistaken
in their interview with Sergeant Reihl, and argues that they
should have investigated in more detail her mother’s statement
of March 2000 asserting that they had mixed up
Thursday and Friday in the videotaped interview. Kubsch
has not shown what that further investigation would have
uncovered, let alone how it would have helped him.
Contrary to the dissent’s assertion, the trial judge did not
keep out Amanda’s videotaped statement because he
thought it would have been easily impeached. When the
prosecution and defense were debating the admissibility of
the statement before the trial court, the prosecutor argued
against admitting the statement “full well knowing that the
little girl was mistaken” and that her mother would testify to
that effect. Tr. 3015–16. The trial judge immediately responded:
“The jury judges that. The jury judges if the girl is right
or the mother is right.” Tr. 3016. The judge kept the recorded
hearsay statement out as substantive evidence because it did
not qualify as a recorded recollection, and he kept it out as
impeachment because Amanda had said nothing worth impeaching.

In this appeal, the specific criticisms of counsel, by both
Kubsch and our dissenting colleague, are based on speculation
rather than the sort of evidence needed to support the
No. 14-1898 49
claim. Kubsch developed the factual record for this claim of
ineffective assistance of counsel in a three-day evidentiary
hearing in a state trial court in 2008. That is the record before
us on this question. See Cullen v. Pinholster, 563 U.S. —, 131 S.
Ct. 1388, 1398 (2011); 28 U.S.C. § 2254(d)(2) & (e).
Kubsch’s new lawyers called both of his trial lawyers as
witnesses in the post-conviction hearing. The transcript
shows that they were asked a few questions about Amanda’s
recorded interview and her mother’s statement from March
2000, but there simply was no inquiry into the lawyers’ supposed
“failures” on this score. Nor was there any effort to
show what would have happened if the trial lawyers had
done what Kubsch’s new lawyers argue should have been
done. They did not call Amanda or Monica or anyone else to
fill in the factual gaps. That proceeding and that hearing
were Kubsch’s opportunity to make a factual record showing
deficient performance that was harmful to his case. He simply
did not make that showing.
Our dissenting colleague finds the trial lawyers deficient
in some additional ways: for not having asked Amanda if
her statements in the interview were accurate, if she was actually
the girl shown in the video, and if she would have
told the police the truth; and for having failed to challenge
Lonnie Buck’s account of the correction on the date, to call
Monica to corroborate Amanda’s answers in the interview, to
track down bank records for Monica’s deposit of her
paycheck, and to pursue corroboration about the school field
trip. Post at 87–88. But again, there is no factual record to
support such speculation about what these efforts would
have shown. Kubsch’s post-conviction lawyers did not question
his trial lawyers on the witness stand about these mat-
50 No. 14-1898
ters, nor did they track down and offer the evidence that the
dissent says might have helped.
This is not to suggest that Kubsch’s post-conviction lawyers
were themselves anything other than highly competent
and diligent. Kubsch is now being represented by at least his
sixth team of capable and experienced capital defense lawyers.
See Ind. R. Crim. P. 24 (qualifications and compensation
for trial and appellate counsel in capital cases). The postconviction
lawyers (the fifth team) no doubt investigated this
claim as thoroughly as possible. But when the time came to
offer actual evidence about the results of the investigation,
they simply did not have evidence that the dissent says
should have been “easily within reach.” We cannot grant relief
by filling in the gaps with our own speculation that further
investigation would have been sufficiently helpful to
Kubsch’s defense.
IV. Waiver of Counsel at the Penalty Phase
We turn now to Kubsch’s third principal claim on appeal.
At the penalty phase of the trial, Kubsch waived his right to
counsel and represented himself. He chose not to present
any mitigating evidence. He did make a statement to the jury
in which he said the murders were a “horrific nightmare”
for which the death penalty would be appropriate, but he
also continued to assert his innocence. On direct appeal and
federal habeas review—though not in the intervening state
post-conviction proceeding—he has argued that his waiver
of counsel was not sufficiently knowing and intelligent because
he was not “made aware of the dangers and disadvantages
of self-representation.” See Faretta v. California, 422
U.S. 806, 835 (1975).
No. 14-1898 51
The Indiana Supreme Court considered and rejected the
claim. Kubsch II, 866 N.E.2d at 735–38. That decision was not
an unreasonable application of federal law under the circumstances
of this case. See 28 U.S.C. § 2254(d)(1). Kubsch
made clear that he was waiving counsel because he did not
want to present evidence at the sentencing phase of the trial.
That decision simplified substantially the challenge of representing
himself, so the trial judge’s colloquy was sufficient
under the circumstances. Neither Faretta nor any other Supreme
Court decision required the judge to discourage
Kubsch from making his decision to waive counsel.
A. The Constitutional Standard
We first address the constitutional standard before turning
to its application in this case. Faretta established that “a
defendant in a state criminal trial has a constitutional right
to proceed without counsel when he voluntarily and intelligently
elects to do so.” 422 U.S. at 807. Though “he may
conduct his own defense ultimately to his own detriment,
his choice must be honored out of ‘that respect for the individual
which is the lifeblood of the law.’” Id. at 834, quoting
Illinois v. Allen, 397 U.S. 337, 350–351 (1970) (Brennan, J., concurring).
Faretta also cautioned that when “an accused manages
his own defense” he forgoes “many of the traditional
benefits associated with the right to counsel.” Id. at 835. Respect
for the value of these “relinquished benefits” is why
“the accused must knowingly and intelligently” waive the
right to counsel. Id. (internal quotation marks omitted), citing
Johnson v. Zerbst, 304 U.S. 458, 464–65 (1938).
“The determination of whether there has been an intelligent
waiver of right to counsel must depend, in each case,
upon the particular facts and circumstances surrounding
52 No. 14-1898
that case, including the background, experience, and conduct
of the accused.” Johnson, 304 U.S. at 464. Two other relevant
“case-specific factors” are “the complex or easily
grasped nature of the charge” and “the stage of the proceeding.”
Iowa v. Tovar, 541 U.S. 77, 88 (2004). To determine
whether a defendant has knowingly and intelligently
waived the right to counsel, “a judge must investigate as
long and as thoroughly as the circumstances of the case before
him demand.” Von Moltke v. Gillies, 332 U.S. 708, 723–24
(1948).
Both the Indiana Supreme Court and this circuit consider
four factors in the waiver inquiry: “(1) the extent of the
court’s inquiry into the defendant’s decision, (2) other evidence
in the record that establishes whether the defendant
understood the dangers and disadvantages of selfrepresentation,
(3) the background and experience of the defendant,
and (4) the context of the defendant’s decision to
proceed pro se.” Kubsch II, 866 N.E.2d at 736, quoting Poynter
v. State, 749 N.E.2d 1122, 1127–28 (Ind. 2001), quoting in turn
United States v. Hoskins, 243 F.3d 407, 410 (7th Cir. 2001).
The constitutional standard is flexible, and its application
must be adapted to the case. The Supreme Court has not
prescribed a list of admonitions that must be given to all defendants
who want to waive counsel. See Tovar, 541 U.S. at
92 (reversing state court’s finding that waiver was invalid:
“In prescribing scripted admonitions and holding them necessary
in every guilty plea instance … the Iowa high court
overlooked our observations that the information a defendant
must have to waive counsel intelligently will depend, in
each case, upon the particular facts and circumstances surrounding
that case.”) (citation and internal quotation marks
No. 14-1898 53
omitted); see also United States v. Moya-Gomez, 860 F.2d 706,
733 (7th Cir. 1988) (“Although we stress the need for a thorough
and formal inquiry as a matter of prudence and as a
means of deterring unfounded claims on appeal, we shall
not reverse the district court where the record as a whole
demonstrates that the defendant knowingly and intelligently
waived his right to counsel.”); United States v. Egwaoje, 335
F.3d 579, 585 (7th Cir. 2003) (reaffirming this holding of Moya-Gomez).
The extent and formality of the waiver colloquy
are relevant, but it is the waiver itself, not the waiver colloquy,
that is the proper focus of the inquiry.
This constitutional standard does not impose a separate
duty to discourage a defendant from representing himself. If
a defendant is not already “aware of the dangers and disadvantages
of self-representation,” then the trial court must
educate him so that he is aware of those risks when he decides.
Faretta, 422 U.S. at 835. When a defendant wants to
take on the challenges of representing himself at trial, including
dealing with jury selection, presentation of evidence,
and jury instructions, the judge may and usually will try to
discourage that option as a means of forcing the defendant
to think carefully about unfamiliar risks.
We find no Supreme Court decision, however, requiring
a judge to discourage self-representation in all circumstances.
If a judge believes, as the trial judge did here, that the defendant
is making a knowing and intelligent waiver, then
she would commit constitutional error by discouraging that
decision too strongly. Faretta clearly established the constitutional
right to self-representation. “That right is not honored
if judges must depict self-representation in such unremittingly
scary terms that any reasonable person would refuse.”
54 No. 14-1898
United States v. Oreye, 263 F.3d 669, 672 (7th Cir. 2001), quoting
United States v. Hill, 252 F.3d 919, 928–29 (7th Cir. 2001).
When a defendant raises the possibility of representing
himself, the trial court is placed “between the Scylla of
trammeling the defendant’s constitutional right to present
his own defense and the Charybdis of shirking its ‘constitutional
duty to ensure that the defendant only represents
himself with full awareness that the exercise of that right is
fraught with dangers.’” United States v. Sandles, 23 F.3d 1121,
1127 (7th Cir. 1994) (citation omitted), quoting Moya-Gomez,
860 F.2d at 732. Appellate courts have tried to keep the permissible
middle ground between these opposing errors fairly
broad, allowing trial judges reasonable leeway to adapt the
inquiry to the circumstances of the case without requiring a
script or checklist. Trial judges seeking this middle way are
not constitutionally bound to discourage every defendant
from representing himself no matter the facts and circumstances
of the case.
B. Kubsch’s Waiver of Counsel
With this constitutional standard in mind, we turn to the
facts of Kubsch’s waiver of his right to counsel for the sentencing
phase of his trial. The attorneys who represented
Kubsch at the guilt phase of his trial were a veteran team
who qualified as a capital defense team under Indiana Rule
of Criminal Procedure 24, which sets minimum qualifications
for lead and co-counsel in capital cases. During the sentencing
phase they served as Kubsch’s legal advisors by
court appointment. Kubsch could ask them for advice, but
they could no longer speak for him in court.
No. 14-1898 55
Kubsch represented himself at the sentencing phase of
his trial because he did not want to present mitigating evidence.
Kubsch was advised by the court and counsel that if
his counsel had represented him in the sentencing phase, his
counsel would have made the final decision about which
witnesses to call. His attorneys planned to offer mitigating
evidence, and they named the witnesses they would have
called and provided Kubsch a written summary of that evidence.
The court asked Kubsch whether he wanted any of
those witnesses to be called. Kubsch confirmed that he did
not.
The court then told Kubsch what to expect in the sentencing
phase of the trial if, as both sides planned, he and the
State presented no new evidence. Each side would address
the jury, and the court would instruct the jury on the applicable
sentencing law, including relevant aggravating and
mitigating factors. The court told Kubsch that as his own attorney
he would have the right to address the jury directly.
Finally, the court considered the standard advice and
warnings given to defendants deciding whether to represent
themselves. The court noted that nearly all the advice and
warnings concern the challenges of trial, such as selecting
jurors and presenting evidence, which can be difficult without
legal training and experience. The court pointed out that
if the sentencing phase did not include additional evidence,
the most difficult obstacles for a pro se defendant would not
be present. The court then reiterated that Kubsch had the
right to make a statement to the jury and allowed his attorneys
to withdraw their appearances.
Kubsch now argues that his waiver was not knowing and
intelligent because the court’s colloquy was insufficient and
56 No. 14-1898
because the judge did not attempt to discourage his choice.
The Indiana Supreme Court considered these arguments in
detail and in light of the circumstances of this case, particularly
Kubsch’s reasons for wanting to represent himself and
the stage of the proceeding, where he would only make a
statement to the jury about the appropriate penalty. Kubsch
II, 866 N.E.2d at 735–38.
The Indiana Supreme Court noted that Kubsch himself
“eliminated the need” for almost all of the standard advisements
given to defendants deciding whether to represent
themselves by confirming that he did not wish to present evidence
at the sentencing phase of his trial. Id. at 736. Accordingly,
the waiver colloquy was “sufficient to apprise the defendant
of the dangers he is facing in the particular matter at
hand.” See id. All that remained in the trial, as a practical
matter, was a closing argument on whether the death penalty
should be imposed.
The stakes were as high as they come in a trial, but they
were highest for the man who wanted to speak for himself.
The Faretta right of self-representation is founded upon respect
for the autonomy of the defendant:
The right to defend is personal. The defendant,
and not his lawyer or the State, will bear the
personal consequences of a conviction. It is the
defendant, therefore, who must be free personally
to decide whether in his particular case
counsel is to his advantage. And although he
may conduct his own defense ultimately to his
own detriment, his choice must be honored out
of “that respect for the individual which is the
lifeblood of the law.”
No. 14-1898 57
422 U.S. at 834.
The state court also noted the trial judge’s observation
about Kubsch’s competence at the end of this three-week trial:

I want to state for the record, in this case, that
the Court observed Mr. Kubsch throughout trial,
that during trial he pretty much constantly
was able to confer with his attorneys, was able
to confer with his factual investigator that interviewed
witnesses in this case, that he testified
in this case, that the Court found his testimony
to be coherent and relevant to the facts
of this case, and that the Court has no reason to
doubt Mr. Kubsch’s competency to represent
himself in this matter.
Tr. 3339–40, quoted in Kubsch II, 866 N.E.2d at 737. The state
court quoted this observation to help show that Kubsch was
capable of understanding, and did in fact understand, the
decision he was making. It also pointed out that “at the time
he chose to represent himself, Kubsch had already participated
in two murder trials and one penalty phase.” Kubsch
II, 866 N.E.2d at 738. “In other words, he obviously knew
from his own experience of his right to call witnesses, present
other evidence, and propose mitigating factors.” Id.
Finally, the Indiana Supreme Court viewed Kubsch’s decision
to waive counsel as knowing because it was strategic,
intended to prevent his counsel from calling witnesses in the
penalty phase of the trial. Id., citing United States v. Todd, 424
F.3d 525, 533 (7th Cir. 2005). “Choosing to waive counsel because
one does not agree with trial strategy is perhaps not
58 No. 14-1898
the best choice, or even a good choice, but it can be a rational
choice.” 866 N.E.2d at 738.
Citing John H. Blume, Killing the Willing: “Volunteers,” Suicide
and Competency, 103 Mich. L. Rev. 939 (2005), Kubsch
argues now that his decision was not so much strategic as
suicidal, calculated to bring about his own execution and indicating
“a pre-existing mental illness.” That is indeed one
way to understand Kubsch’s behavior. Another way to understand
Kubsch’s behavior, however, is to take at face value
his words at the sentencing phase of both trials. At both he
articulated a principled opposition to arguing that any mitigating
evidence could outweigh the aggravating circumstances
of the crimes a jury had convicted him of committing.
Faretta was decided precisely to protect such principled
decisions. Kubsch now apparently regrets his decision to
proceed pro se. That does not mean his decision was any less
principled when he made it or that it was the product of
mental illness.
His strategy can also be understood in quite sensible
terms. Rather than begging for mercy from the jury that had
just convicted him of three brutal murders without any apparent
mitigating circumstances, Kubsch told the jury, “I
wouldn’t even dare try to insult your intelligence by wasting
your time by presenting mitigation.” Tr. 3372. He instead asserted
several times that he is innocent. His approach can be
understood as a reminder that the jurors should consider the
possibility that they might have made a mistake, so that residual
doubt should weigh against the death penalty. That
approach is entirely consistent with his defense at trial, even
though neither was successful. The state courts did not act
unreasonably in viewing the waiver as strategic and know-
No. 14-1898 59
ing. See United States v. Davis, 285 F.3d 378, 384–85 (5th Cir.
2002) (defendant chose to represent himself at sentencing
phase of capital trial for similar strategic reason; appellate
court issued writ of mandamus barring district court’s appointment
of independent counsel to present mitigating evidence
over defendant’s objection).
Kubsch argues most strenuously that the trial judge had
a duty under “the spirit of Faretta” to discourage him from
waiving his right to counsel. That is not what Faretta said or
means. Faretta held that a defendant has a constitutional
right to waive counsel as long as the waiver is knowing, voluntary,
and intelligent. The core of Faretta is respect for the
defendant’s autonomy even if he makes a foolish decision.
422 U.S. at 834; see also Davis, 285 F.3d at 384. There is no requirement
to discourage the defendant. As noted, we have
warned that excessive discouragement, even for a defendant
who wishes to handle the entire case, can violate Faretta. See
Hill, 252 F.3d at 929 (“A defendant bullied or frightened into
acquiescing in a lawyer that he would rather do without
would be in a much better position to say that the choice was
not made knowingly or intelligently.”).
The basic problem with Kubsch’s argument is that most
of the specific advice usually given to defendants was unnecessary
for him. He planned to present no mitigating evidence
and planned only to make a brief statement to the jury.
Cf. Federal Judicial Center, Benchbook for U.S. District
Court Judges § 1.02 (6th ed.) (warnings focus on procedural
and evidentiary challenges before and during trial).
Kubsch responds that this view “shifts responsibility
from the trial court to the defendant, making the defendant
responsible to inform the court how he wished to proceed, to
60 No. 14-1898
determine the level of warning the court must give him.”
The Indiana Supreme Court did not make that mistake.
Kubsch’s counsel and then Kubsch himself explained his
plans to the trial judge. The judge was not required to question
Kubsch’s strategy, and he did not require Kubsch to
provide information. Kubsch volunteered it. The trial judge
adapted his approach to the waiver inquiry accordingly.
In a variation on this argument, Kubsch also argues that
the waiver colloquy was actually misleading. At one point,
the trial judge said, “In a way I’m saying, your representation
would not be as complicated as if you were handling the
whole trial by yourself. Do you understand that?” Tr. 3342.
Taken in context, this statement was not misleading at all. It
was true. Making a statement to the jury was far simpler for
Kubsch than representing himself in the guilt phase of his
trial would have been. See Tovar, 541 U.S. at 88 (explaining
that the “information a defendant must possess in order to
make an intelligent” waiver depends in part on “the stage of
the proceeding”).
In sum, the federal Constitution required the trial judge
to determine whether Kubsch’s waiver of counsel for the last
phase of his trial was knowing, voluntary, and intelligent.
The Indiana Supreme Court did not apply that clearly established
federal law unreasonably by holding that Kubsch’s
waiver was valid in light of “the particular facts and circumstances
surrounding that case, including the background,
experience, and conduct of the accused,” see Johnson, 304
U.S. at 464, and the stage of the proceeding, see United States
v. Hoskins, 243 F.3d at 410.
Accordingly, we AFFIRM the district court’s judgment
denying relief.
No. 14‐1898 61   
WOOD, Chief Judge, dissenting. My colleagues are pre‐
pared 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 confi‐
dence 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 ac‐
quitted Kubsch. It also may have convicted him: I do not ar‐
gue 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 be‐
lieve 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.
I
As required by the Antiterrorism and Effective Death
Penalty Act, I rely on the facts used by the Supreme Court of
Indiana after Kubsch’s second trial, conviction, and sentenc‐
ing. See Kubsch v. State, 866 N.E.2d 726 (Ind. 2007) (Kubsch
II). That opinion summarized the facts that had been devel‐
oped in earlier appeals. See Kubsch v. State, 784 N.E.2d 905
62 No. 14‐1898
(Ind. 2003) (Kubsch I); see also Kubsch v. State, 934 N.E.2d
1138 (Ind. 2010) (Kubsch III) (opinion at post‐conviction
stage).  
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 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, and he also owned 11 rental properties in
St. Joseph County. They 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. At about that time, he bought a life
insurance policy on Beth, with himself as the sole
beneficiary; the policy would pay $575,000 on her death.  
The fateful day was September 18, 1998. For ease of ref‐
erence, I provide a timeline of the events in Appendix A to
this dissent. Here I summarize what happened that day and
the evidence that pins down where the key actors were lo‐
cated. I rely on the evidence that was admitted at Kubsch’s
second trial.  
That morning, both Wayne and Beth Kubsch were up
early. By 6:00 a.m., testimony from Beth’s coworker Archie
Fobear established that Beth had already left her home on
Prism Valley Drive in Mishawaka and was just starting to
work at United Musical Instruments in Elkhart, Indiana, ap‐
No. 14‐1898 63
proximately 11 miles away. Cellular telephone records indi‐
cated 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 cred‐
it 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 Coun‐
seling 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
house after punching out from his job at 11:13 a.m. Erin
Honold, a neighbor, saw him and his car in the driveway be‐
tween 11:30 a.m. and noon, around the same 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 the
company, testified that he spoke to Kubsch that morning.
Between 12:09 and 12:11 p.m., Kubsch made three more calls
64 No. 14‐1898
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 re‐
frigerator at the Prism Valley 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, although 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
cellphone came at 2:51 p.m.; it was from a sector near the
house. The state’s theory was that these last two calls bracket
the time when he committed the murders—between 1:53
and 2:51 p.m.  
There are some problems with this theory, at least if it is
meant to encompass all three murders, because there is no
evidence that Aaron left school early that day. To the contra‐
ry, witnesses testified that Aaron was waiting outside Lin‐
coln 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; its website indicates that the
school day runs from 8:15 a.m. to 2:20 p.m. See LINCOLN
PRIMARY CENTER, https://www.edline.net/pages/Lincoln_
Primary_Center (last visited Aug. 10, 2015).) In any event, by
3:15 p.m. or so, Kubsch placed numerous calls to Beth’s
No. 14‐1898 65
mother, Diane Rasor; he eventually connected on the 11th
try. Cellular records indicate that he was heading north at
that point, 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, Michi‐
gan, which is about 11 miles north of Three Rivers, Michi‐
gan, where Kubsch’s son Jonathan lived with his mother.
(For the sake of consistency, I 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, stop‐
ping 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 house.
By this time, however, Anthony had come home and dis‐
covered the bodies of Rick and Aaron. This happened at 5:30
p.m. He immediately summoned help, and so by the time
Kubsch showed up at the house at 6:45 p.m., police were
there and it was taped off as a crime scene. (Beth’s body had
not yet been discovered.) The police took Kubsch to the sta‐
tion, interviewed him, and then released him. Around 9:00
p.m., they discovered Beth’s body concealed in the base‐
ment. They brought Kubsch back in for a second interview.
He did not appear surprised to learn of Beth’s death. Asked
several times by the officers to tell them what happened,
66 No. 14‐1898
Kubsch chose instead to invoke his right not to speak with‐
out an attorney. The police did not arrest him for the murder
immediately. They did so three months later, when a person
named Tashana Penn Norman told them that she and her
boyfriend overheard a person saying that he had “hurt[ ] a
little boy,” and she identified Kubsch as the speaker. He was
arrested on December 22, 1998, and charged with all three
murders.
II
A
Kubsch was tried twice in this case. The first trial took
place in 2000. At its conclusion, the jury convicted him and
recommended the death penalty, and the court sentenced
him accordingly. The Supreme Court of Indiana reversed
that judgment in Kubsch I, and ordered a new trial. 784
N.E.2d at 926. The second trial took place in March 2005.
Once again, the jury found Kubsch guilty and recommended
the death penalty, and once again, the trial court accepted
the recommendation and imposed that sentence. In Kubsch
II, the Supreme Court of Indiana affirmed. 866 N.E.2d at 740.
Kubsch then unsuccessfully sought post‐conviction relief
from the state courts, see Kubsch III, 934 N.E.2d at 1154, be‐
fore turning to the federal court with his current habeas cor‐
pus petition, see 28 U.S.C. § 2254.  
The State’s case, as my colleagues readily admit, was
built from various pieces of circumstantial evidence. It
pointed to Kubsch’s financial problems and the new life in‐
surance policy on Beth as plausible motives for the murders.
It attempted to trace his movements through use of the cellu‐
lar telephone records and the testimony of the people who
No. 14‐1898 67
interacted with Kubsch, Beth, Rick, Aaron, and Anthony
throughout that day. It found a fiber on the duct tape used to
bind Beth’s body that matched a fiber taken from Kubsch’s
car, and it also noted that the duct tape wrapper in the car
matched the brand of tape used on Beth. (It offered nothing
to show how common this brand was.) It (as have my col‐
leagues) stressed the fact that Kubsch’s account of his own
actions during the day was not consistent on key matters,
such as whether he went home during the lunch hour,
whether he was alone there, and when he headed up to
Michigan. These inconsistences, plus what the district court
called a “slow‐moving accumulation of a glacier of circum‐
stantial evidence,” satisfied both the second jury and all of
the reviewing courts so far that Kubsch was properly con‐
victed and sentenced.
B
If the question before this court were simply about the
sufficiency of the evidence, I would agree with everyone that
Kubsch’s challenge fails. Indeed, it would be hard to find
fault with the extensive discussion my colleagues have fur‐
nished. But that is not the question. It is instead whether the
package of evidence that was presented to the jury was
complete, and if not, whether the excluded evidence was
important and reliable enough to have made a difference.  
The critical evidence that was kept from the jury was
videotaped testimony by a girl named Amanda (“Mandy”)
Buck, “who, according to the defense, would have testified
that she saw Aaron after 3:30 pm on the day of the mur‐
ders.” Kubsch II, 866 N.E.2d at 730. Mandy, who was nine
years old at the time, was interviewed immediately after the
murders, on Tuesday, September 22, 1998. Because of the
68 No. 14‐1898
importance of what she said, I have included a full transcript
of the interview as Appendix B to this dissent. The inter‐
viewer was Detective Mark Reihl; the interview took place in
what appears to be a room in the police station. Mandy’s
mother, Monica, was present throughout and volunteered
information from time to time.
After establishing some basic information, Detective
Reihl confirmed that Mandy was a fourth‐grader at Lincoln
School, that she lived right across the street from Aaron and
his dad Rick, and that she and Aaron were “best friends.”
She commented that Aaron didn’t like Kubsch, because he
would get rough and punch too hard “and stuff like that.”
She saw Aaron frequently: “I always went over to his house.
He always came over to my house and like we like used to
study for the same spelling words. … And we would help
each other on homework and stuff.” When Reihl asked her
when they got out of school, she replied “two twenty.” She
lived close to the school, she said, just a five‐minute walk
away.  
The interview then turned to “last Friday,” which was
September 18, the day of the murders. On that day, as usual,
Mandy was picked up from school by the Alphabet Acade‐
my; from there, her mother typically (and that day) picked
her up to go home “[b]etween three thirty and quarter to
four.” At that point Monica interjected that she “waited for
[Monica’s] mom and dad to get home, and I went and
cashed my check and came home.” Reihl then asked whether
Monica noticed if Rick was across the street. Monica replied
“I didn’t pay no attention. All I saw was Aaron.” Reihl re‐
peated “You saw Aaron?,” and Monica said “[m]mm hmm.”
She did not remember if Rick’s truck was there. Turning
No. 14‐1898 69
back to Mandy, Reihl asked again what time she got home
that day. Monica answered instead, repeating “3:30 or quar‐
ter to four.” Mandy confirmed that she saw Aaron then, and
that she also saw “his dad,” who “was coming from their
living room into the kitchen to get something to drink.” She
explained that she was able to see this from her own house:
“every day when I walk home I always see Rick walk into
the kitchen or walk into the restroom or walk into his room.”
Asked what kind of car Rick drove, Mandy replied “[a]
Chevy? He used to drive a Chevy until it broke down.” She
specified that it was a black, medium‐sized, “kinda short”
truck. Because his truck had broken down, she added that he
was driving a white truck that he had borrowed from his
brother on Friday, and that the white truck was at the house
when she got home from school.  
Reihl next asked whether she saw Rick and Aaron leave
that afternoon. She answered, “Um, yeah, like I was on my
porch and, and they let me blow bubbles and I was blowin’
my bubbles, and I seen Rick pull out and leave.” She was not
sure what time that was, because she left her watch in her
gym bag, but she estimated it was a “medium” time after
she got home, and she commented that “it takes a pretty
long time to get to [Aaron’s] mom’s house.”  
She then went into some detail about Aaron’s plans for
the weekend. “He said that he was going to his mom’s house
Friday, ‘cause he was gonna stay the night there to go to the
field trip Saturday. … You know he was, he—he wanted to
go on the field trip bad. … But by the time Saturday when
we, when we were on the bus and stuff, he was gonna be in
our group, and, um, he never showed up. He wasn’t there.
And we didn’t know why.” She went camping after the field
70 No. 14‐1898
trip and told her grandmother that she had not seen Aaron.
She learned about the murders after a news crew came to
her home while she was at her karate lesson the following
Monday, she said.  
Reihl then turned back to Monica and confirmed that she
cashed her paycheck on Friday, shortly after she came home
from work (around 3:50 p.m.). She said again that she had
seen Aaron, but not Rick, and that she did not look to see if
Rick’s truck was there. They discussed what kind of truck
Rick drove; interestingly, Mandy knew more about it than
her mother—she liked the gold printing that said “Chevro‐
let” across the back. By then, the interview was winding
down. Reihl asked Mandy yet again whether she saw both
Aaron and his father, as well as the white truck, in the yard
around 3:30 or 3:45 p.m., and she said yes. He asked whether
“[t]hese times that you’ve given me today, uh, these are pret‐
ty accurate,” and Monica said, “Yeah, ‘cause I get off work at
quarter after three.” This was her daily routine. With that,
the interview ended.
A few days after Mandy’s interview, Reihl called Mon‐
ica’s place of employment and then her home, apparently in
an attempt to see yet again whether both Mandy and Monica
had correctly recounted what happened and when it hap‐
pened. Reihl spoke to Mandy’s grandfather (“Lonnie”) and
asked him to find out if Mandy and Monica were certain
about their story. Lonnie called Reihl back and told him that
the events that Mandy and Monica had described had taken
place on Thursday, September 17, not on Friday. The prose‐
cutors recounted at Kubsch’s trial that Monica told the police
that “her father was at her house on that Thursday, and he
later reminded her that it was Thursday instead of Friday.”
No. 14‐1898 71
She said that she—Monica—had confused the dates because
she was so busy; she offered no reason why Mandy would
have confused them. Nor was there any effort to explain
away Mandy’s detailed comments about the timing of the
Saturday field trip and her subsequent camping trip, karate
lesson, and so on. At that early time, not a week after the
field trip, it would have been easy to confirm with the school
whether the trip took place on Saturday, September 19, or
Friday, September 18. (And even the trial evidence shows
Rick picking up Aaron at school between 2:20 and 2:35 p.m.
on Friday, strongly suggesting that there was no field trip
that day.) In addition, it would have been relatively easy to
confirm when Monica was paid and made her deposit, just
as evidence had shown when Beth visited her own bank.
Mandy was called to testify at the second trial, but she
had almost nothing to say. She claimed to have no memory
of talking to the police or being interviewed by them in 1998.
When Kubsch’s lawyer attempted to use the transcript of the
interview to refresh her recollection and later to impeach
her, the prosecution objected and the court sustained the
objections. The court also refused to permit the use of the
videotaped interview as a recorded recollection, despite
Mandy’s asserted inability to recall anything about the
interview.
C
The Supreme Court of Indiana upheld the trial court’s
rulings. It found that the videotape was not admissible un‐
der Indiana’s evidentiary rule governing the use of recorded
recollection, Ind. R. Evid. 803(5). In 2005 that rule covered:
72 No. 14‐1898
[a] memorandum or record concerning a mat‐
ter about which a witness once had knowledge
but now has insufficient recollection to enable
the witness to testify fully and accurately,
shown to have been made or adopted by the
witness when the matter was fresh in the wit‐
ness’s memory and to reflect that knowledge
correctly … .
(It essentially tracks Fed. R. Evid. 803(5), as it read before the
2011 restyling changes were made.) The court was con‐
cerned about the final element, which requires that the re‐
cording reflect the witness’s knowledge correctly. It found
that Mandy’s inability to vouch for the accuracy of her prior
statement precluded its use. The videotape was not admissi‐
ble as a prior inconsistent statement, the court added, be‐
cause Mandy gave no substantive evidence at all in her tes‐
timony, and so there was (almost) no prior statement to im‐
peach.  
The court conceded, however, that there was one state‐
ment that was subject to impeachment. At the trial, Mandy
stated that “I probably didn’t see [Aaron], because I go
straight [from] home to the day care, and then I would go
home afterwards.” That statement directly contradicts her
statement in the video that she saw Rick and Aaron that af‐
ternoon from her porch, and the court acknowledged that
“Kubsch should have been allowed to impeach her on this
matter.” 866 N.E.2d at 735. It found the error harmless, how‐
ever, because it thought that Mandy’s account from the vid‐
eotape would have been impeached by the call from her
grandfather suggesting a mistake in dates. It thought that
the prosecutor’s ability to put Detective Reihl and Monica on
No. 14‐1898 73
the stand, presumably to support the “mistake” theory, was
“also the reason why Kubsch’s claim that he was denied his
federal constitutional right to present a defense fails. See
Chambers v. Mississippi, 410 U.S. 284 (1973) (protecting de‐
fendant’s due process right by recognizing an exception to
application of evidence rules where evidence found to be
trustworthy).” 866 N.E.2d at 735 n.7. At a minimum, this
passage conclusively shows that the Chambers argument was
adequately presented to the state courts.
Putting to one side for the moment the niceties of the
rules of evidence, one thing is clear: if Mandy was correct in
her videotaped interview that the events she was describing
had happened on Friday, not on Thursday, and if she had
seen both Aaron and Rick as late as 3:45 or 4:00 p.m. that
day, then Wayne Kubsch could not have killed them. By that
time, he was headed to Michigan to pick up Jonathan. The
state has always pegged the time of the murders to midday,
from 1:53 to 2:51 p.m. It has never argued that Kubsch ar‐
ranged for someone else to commit the murders on his be‐
half, and it is obviously too late in the day to introduce such
a radically different theory. And, because the state’s theory
is that Kubsch killed Aaron and Rick because they stumbled
on him as he was murdering Beth, Mandy’s testimony un‐
dermines the conviction as it relates to Beth, too.
No evidence could be more critical to Kubsch’s defense.
And the possibility that the state might have been able to
impeach the videotaped account cannot cure this problem;
that impeachment was itself subject to impeachment from
such details as the school’s records about the day of the field
trip and the date when Monica cashed her paycheck. Under
these circumstances, the Supreme Court’s decision in Cham‐
74 No. 14‐1898
bers overrides the state evidentiary rule that prevented the
jury from hearing Mandy’s statement. This was evidence
that, if believed, might have prompted the jury to acquit on
one or more of the counts. As I explain below, the Indiana
Supreme Court’s decision to the contrary was, in my view,
contrary to and an unreasonable application of Chambers,
even under the strict standard of review that applies, which
my colleagues discuss in such detail despite our agreement
on that point.
III
Habeas corpus petitioners come to a federal court of ap‐
peals with at least two strikes against them: they already
have lost in the state courts (either on the merits or because
of one of many procedural hurdles that must be cleared);
and they also have failed to convince the federal district
court of their entitlement to relief. They face the daunting
burden of satisfying the familiar and deliberately demand‐
ing standards created in the Antiterrorism and Effective
Death Penalty Act (AEDPA), 28 U.S.C. § 2254(d), under
which  
An application for a writ of habeas corpus on
behalf of a person in custody pursuant to the
judgment of a State court shall not be granted
with respect to any claim that was adjudicated
on the merits in State court proceedings unless
the adjudication of the claim—
(1) resulted in a decision that was contrary to,
or involved an unreasonable application of,
clearly established Federal law, as determined
by the Supreme Court of the United States; or
No. 14‐1898 75
(2) resulted in a decision that was based on an
unreasonable determination of the facts in light
of the evidence presented in the State court
proceeding.
28 U.S.C. § 2254(d); see Harrington v. Richter, 562 U.S. 86, 102
(2011) (“If this standard is difficult to meet, that is because it
was meant to be.”).  
Kubsch therefore has the burden of showing that the last
court in Indiana to speak to his case, see Ylst v. Nunnemaker,
501 U.S. 797, 801 (1991), rendered a decision that was either
contrary to, or an unreasonable application of, “clearly estab‐
lished Federal law, as determined by the Supreme Court of
the United States.” 28 U.S.C. § 2254(d)(1). (He has not sought
to rely on 28 U.S.C. § 2254(d)(2), which deals with unreason‐
able determinations of fact, and so I do not discuss that op‐
tion here.) As we observed in Lindh v. Murphy, 96 F.3d 856,
873 (7th Cir. 1996) (en banc), reversed on other grounds, 521
U.S. 320 (1997), Congress deliberately restricted the juris‐
prudence to which a court faced with a habeas corpus peti‐
tion may resort: only federal law as determined by the Su‐
preme Court is available. This restriction acknowledges that
the state supreme courts are equally responsible (along with
the lower federal courts) for applying federal law, and that
the only federal court whose rulings bind them is the federal
Supreme Court.  
With that in mind, I turn directly to the Supreme Court
decision that controls Kubsch’s case: Chambers v. Mississippi.
Chambers and the line of cases that follow it “clearly estab‐
lish” (to use AEDPA’s term) the fact that a state rule of evi‐
dence cannot be used in a way that denies an accused person
his right under the Due Process Clause to a fair trial, in
76 No. 14‐1898
which he has a fair opportunity to defend. My detailed look
at that case and those that followed it demonstrates why,
contrary to the spin my colleagues have tried to place on it,
the position I take is not opening up any floodgate for the
use of hearsay evidence. Only evidence that satisfies the
strict criteria of Chambers will be admissible, and to see what
that evidence must be like, it is necessary to recall the partic‐
ulars of the case.
Petitioner Leon Chambers was tried by a jury in Missis‐
sippi state court and found guilty of murdering a policeman;
he was sentenced to life imprisonment. The story leading up
to his conviction was sadly familiar. On a Saturday evening,
Woodville (Mississippi) police officers Forman and Liberty
went to a local bar to execute an arrest warrant for a young
man named Jackson. With the help of a hostile crowd and
some 20 to 25 men, Jackson resisted arrest. Forman then ra‐
dioed for assistance, while Liberty retrieved his riot gun
from the squad car. Three deputy sheriffs soon arrived in
response to Forman’s call, but the situation was still not un‐
der control. Shooting broke out while Forman was looking
away, but when he turned to check on Liberty, he saw that
Liberty had been hit several times in the back. Before Liberty
died, he turned and fired toward the place where the shots
had come from. His second shot hit a man in the crowd in
the back of the head and neck; the injured man turned out to
be Chambers.
Forman saw neither who shot Liberty, nor whether Lib‐
erty managed to hit anyone. A deputy sheriff later testified
that he saw Chambers shoot Liberty, and another deputy
sheriff testified that he saw Chambers make a suspicious
arm movement shortly before the shots were fired. At the
No. 14‐1898 77
time, however, the remaining officers were trying to tend to
Liberty. They put him in the police car and rushed him to a
hospital, but he was declared dead on arrival. Chambers in
the meantime was lying on the ground. Returning to the
scene, some of his friends discovered that he was still alive
and took him to the same hospital, where he was treated and
then arrested. Later he was charged with Liberty’s murder.
Another man, Gable McDonald, was also in the rowdy
group at the bar. A few days later, he left his wife in Wood‐
ville and moved to Louisiana, where he found work. Five
months later, he returned to Woodville to see an acquaint‐
ance, Reverend Stokes. After talking to Stokes, McDonald
met with Chambers’s attorneys and gave them a sworn con‐
fession that he was the one who shot Liberty. He also said
that he had told a friend, James Williams, that he was the
killer. He admitted that he used a nine‐shot, .22‐caliber re‐
volver, which according to the autopsy was the murder
weapon. McDonald signed the confession, surrendered to
the police, and was put in jail.
A month later, at the preliminary hearing, McDonald re‐
canted. His new story was that Stokes had persuaded him to
make a false confession; the idea, implausible though it
sounded, was that Stokes promised he would not go to jail
for the crime and that he would share in the proceeds of a
lawsuit Chambers planned to bring against the town. The
local justice of the peace accepted the recantation and re‐
leased McDonald.
Chambers’s trial took place the next year. He had two
theories of defense: first, he tried to show that there was no
evidence indicating that he shot Liberty; second, he wanted
to show that the real culprit was McDonald. He was stymied
78 No. 14‐1898
in the latter effort, however, by the confluence of two Missis‐
sippi rules of trial procedure. First, because the prosecutor
refused to call McDonald as a witness, he was forced to call
McDonald himself. This triggered Mississippi’s voucher
rule, under which the party who calls a witness is forbidden
to impeach him. Following that rule, the trial court refused
to allow Chambers to treat McDonald as an adverse witness.
Second, his effort to use three other witnesses to whom
McDonald had confessed was blocked by the hearsay rule.
Chambers was prepared to show that each of those three
would testify that McDonald unequivocally said that he shot
Liberty. Much of their testimony was corroborated.  
The Supreme Court found that the combination of these
two rules of state procedure resulted in a fundamentally un‐
fair trial for Chambers. The rules rendered him utterly una‐
ble to subject McDonald’s repudiation and alibi to cross‐
examination, and they prevented him from putting before
the jury the information that would have allowed them to
decide whether to believe McDonald. The voucher rule, the
Court held, “as applied in this case, plainly interfered with
Chambers’ right to defend against the State’s charges.” 410
U.S. at 298. The Court found no need to decide whether that
interference alone would have been enough, because it also
found that when one added the effects of the hearsay rule to
the mix, there was no doubt that Chambers’s constitutional
rights were violated. It noted that the hearsay statements
“were originally made and subsequently offered at trial un‐
der circumstances that provided considerable assurance of
their reliability.” Id. at 300 (spontaneous, corroborated, inde‐
pendent, against McDonald’s penal interest). McDonald was
present in the courtroom, under oath, and subject to cross‐
examination. The Court summarized its holding with these
No. 14‐1898 79
words: “In these circumstances, where constitutional rights
directly affecting the ascertainment of guilt are implicated,
the hearsay rule may not be applied mechanistically to de‐
feat the ends of justice.” Id. at 302.  
The Court did not abandon Chambers the minute it was
decided in 1973. To the contrary, as my colleagues concede,
over the ensuing years the Court has carefully reviewed a
substantial number of cases in which Chambers arguments
have been made. Some decisions have found that state rules
must give way to the fundamental dictates of due process,
while others have concluded either that the evidence is not
so critical, or that the rule as applied does not deprive the
defendant of a fair trial. Even in the latter cases, however,
the Court has confirmed its continued adherence to Cham‐
bers.
For example, in Nevada v. Jackson, 133 S. Ct. 1990 (2013),
the defendant argued in a sexual assault case that a Nevada
statute that precludes the admission of extrinsic evidence for
impeachment purposes violated the Chambers principle. The
Court rejected that argument and held that Nevada was enti‐
tled to apply its statute. Nevertheless, however, it said:  
[o]nly rarely have we held that the right to pre‐
sent a complete defense was violated by the
exclusion of defense evidence under a state
rule of evidence. See [Holmes v. South Carolina,]
547 U.S. [319], 331 [(2006)] (rule did not ration‐
ally serve any discernible purpose); Rock v. Ar‐
kansas, 483 U.S. 44, 61 (1987) (rule arbitrary);
Chambers v. Mississippi, 410 U.S. 284, 302–303
(1973) (State did not even attempt to explain
the reason for its rule); Washington v. Texas, 388
80 No. 14‐1898
U.S. 14, 22 (1967) (rule could not be rationally
defended).
133 S. Ct. at 1992.  
Indeed, only three years before Jackson the Court found
an application of Chambers to be so uncontroversial it ad‐
dressed the matter in a per curiam opinion. Sears v. Upton, 561
U.S. 945 (2010). In that case, evidence of petitioner Sears’s
cognitive impairments had not been brought to light in state
court during his capital sentencing hearing. The Court first
found that the state court had not applied the correct stand‐
ard for ascertaining prejudice for purposes of a Sixth
Amendment claim of ineffective assistance of counsel. Id. at
946. It then said that “the fact that some of such evidence
may have been ‘hearsay’ does not necessarily undermine its
value—or its admissibility—for penalty phase purposes.” Id.
at 950 (footnote omitted). In the accompanying footnote, it
added this: “Like Georgia’s ‘necessity exception’ to its hear‐
say rules, … we have also recognized that reliable hearsay
evidence that is relevant to a capital defendant’s mitigation
defense should not be excluded by rote application of a state
hearsay rule.” Id. at 950 n.6.  
As the citation to Holmes in Jackson signals, the Court has
not shrunk the Chambers principle to one that applies only to
sentencing proceedings, in which the normal rules of evi‐
dence do not strictly apply. In Holmes, the question was
“whether a criminal defendant’s federal constitutional rights
are violated by an evidence rule under which the defendant
may not introduce proof of third‐party guilt if the prosecu‐
tion has introduced forensic evidence that, if believed,
strongly supports a guilty verdict.” 547 U.S. at 321. Yes, the
Court concluded, the defendant’s rights are violated by such
No. 14‐1898 81
an evidence rule, despite the broad latitude that state and
federal rulemakers enjoy. It continued as follows:  
Whether rooted directly in the Due Process
Clause of the Fourteenth Amendment or in the
Compulsory Process or Confrontation Clauses
of the Sixth Amendment, the Constitution
guarantees criminal defendants a meaningful
opportunity to present a complete defense. …
This right is abridged by evidence rules that in‐
fring[e] upon a weighty interest of the accused
and are arbitrary or disproportionate to the
purposes they are designed to serve.
Id. at 324 (quotation marks and citations omitted). One of the
Court’s illustrations of this principle was Chambers. Id. at 325.  
Naturally, there are cases in which defendants have con‐
tended that they should be entitled to the benefits of the
Chambers rule and the Court has turned them down. See, e.g.,
Fry v. Pliler, 551 U.S. 112 (2007) (cumulative evidence can be
excluded); Clark v. Arizona, 548 U.S. 735 (2006) (state entitled
to limit issues for which evidence of mental illness and ca‐
pacity may be used); Oregon v. Guzek, 546 U.S. 517 (2006) (no
right to present evidence at sentencing phase that casts “re‐
sidual doubt” on conviction); United States v. Scheffer, 523
U.S. 303 (1998) (permissible to prohibit defendant in a court‐
martial from relying on polygraph evidence). But it is no
surprise that defendants have tried to test the outer limits of
Chambers. Sometimes the Court has acknowledged the
Chambers rule but found other reasons why the defendant
could not prevail. See Taylor v. Illinois, 484 U.S. 400 (1988)
(stressing nevertheless the importance of ensuring that the
jury does not decide based on a distorted record). And, in
82 No. 14‐1898
addition to the cases already discussed, there are others in
which defendants have prevailed. See, e.g., Rock v. Arkansas,
483 U.S. 44 (1987) (refusing to allow Arkansas to use a per se
rule excluding all hypnotically refreshed testimony); Crane v.
Kentucky, 476 U.S. 683 (1986) (exclusion of evidence of physi‐
cal and psychological circumstances of defendant’s confes‐
sion deprived petitioner of fair trial); Green v. Georgia, 442
U.S. 95 (1979) (per curiam) (application of hearsay rule vio‐
lated due process even though correct as a matter of Georgia
law).  
Chambers, in short, establishes a rule that binds state and
federal courts alike. It ensures the fundamental fairness of a
defendant’s trial. Its message is especially strong in our case,
which, like Chambers itself, concerns a defendant’s right to
demonstrate his innocence on capital charges. Just as in
Chambers, in Kubsch’s case even though the videotaped evi‐
dence of Mandy’s interview was technically hearsay (the
very same rule of evidence at issue in both Chambers and
Green), it was created in a way that provided substantial as‐
surances of its accuracy. It missed qualifying for the “rec‐
orded recollection” exception to the hearsay rule by a hair. It
included numerous details that were either undisputed (e.g.,
Mandy was a friend of Aaron’s; she lived across the street
from him; they went to the same school) or easily subject to
corroboration. As I now show, these are precisely the cir‐
cumstances in which the Court has found that the eviden‐
tiary rule must give way to the defendant’s due process right
to a fair trial.
No. 14‐1898 83
IV
A
I begin with what may be the strongest reason for admit‐
ting the Mandy videotape: its quality as a de facto recorded
recollection. (I say “de facto” out of respect for the Indiana
Supreme Court’s ruling that it fell short, not because I would
necessarily have come to the same conclusion.) As I noted
earlier, at the time of Kubsch’s second trial, Indiana Rule of
Evidence 803(5) read as follows:
The following are not excluded by the hearsay
rule, even though the declarant is available as a
witness: … (5) Recorded Recollection. A mem‐
orandum or record concerning a matter about
which a witness once had knowledge but now
has insufficient recollection to enable the wit‐
ness to testify fully and accurately, shown to
have been made or adopted by the witness
when the matter was fresh in the witness’s
memory and to reflect that knowledge correct‐
ly.
This rule, along with Indiana’s other rules of evidence, had
been adopted in 1994. It was intended to codify the com‐
mon‐law exception to the prohibition against the use of
hearsay evidence for records of past statements about which
the witness has no present memory. By requiring only “in‐
sufficient” recollection, the rule as adopted relaxed Indiana’s
common‐law doctrine, which had required the complete ab‐
sence of any memory as a condition of admissibility.
INDIANA PROPOSED RULES OF EVIDENCE 75 (1993); see also
FED. R. EVID. 803(5) Committee Note (the model for the Indi‐
84 No. 14‐1898
ana rule), (discussing “[t]he guarantee of trustworthiness …
found in the reliability inherent in a record made while
events were still fresh in mind and accurately reflecting
them”). The key is that the circumstances surrounding the
preparation of the record make it particularly reliable.
INDIANA PROPOSED RULES OF EVIDENCE 75. The rule itself
does not specify how the accuracy of the recorded version
should be proved. The Indiana Supreme Court in Kubsch II,
however, took the position that the witness must somehow
vouch for its accuracy. See also 2 MCCORMICK ON EVIDENCE
§ 283 (7th ed. 2013). That can be difficult, since by definition
the witness does not recall making the statement, but com‐
mon practice, conformity with other things the witness
knows, or even a statement such as “I would not have lied
about that” typically satisfy the vouching requirement. See
generally 30C MICHAEL H. GRAHAM, FEDERAL PRACTICE AND
PROCEDURE § 7046 at 115–16 & n.4 (interim ed. 2011).
In applying Rule 803(5), Indiana courts both before and
after the various Kubsch opinions have looked to see if the
recorded recollection (1) relates to a matter about which the
witness once had knowledge; (2) is one about which the wit‐
ness now has insufficient recollection to permit her to testify
fully and accurately at trial; (3) is one that the witness is
nonetheless willing and able to adopt or vouch for; (4) is one
made when the matter was fresh on her mind; and (5) cor‐
rectly reflects the witness’s knowledge at the time of the
event. E.g., Impson v. State, 721 N.E.2d 1275, 1282–83 (Ind. Ct.
App. 2000). The final requirement is inevitably awkward,
because there is tension between the ability to vouch and the
inability to recall. But Indiana courts have resolved that ten‐
sion by adopting a realistic approach to vouching; they have
accepted even a simple statement that the report is accurate.
No. 14‐1898 85
E.g., A.R.M. v. State, 968 N.E.2d 820, 827 n.7 (Ind. Ct. App.
2012); see also Gee v. State, 389 N.E.2d 303, 309 (Ind. 1979)
(“At the time of his testimony he may have completely for‐
gotten the event … but at that time he can vouch for the ac‐
curacy of the prior writing.”). In one case, the court was sat‐
isfied when a witness testified that she “told the truth in her
videotaped statement.” Horton v. State, 936 N.E.2d 1277, 1283
(Ind. Ct. App. 2010), vacated on other grounds, 949 N.E.2d 346
(Ind. 2011). And at times, the courts have simply assumed
that the report in question accurately reflects the witness’s
knowledge at the time of the report. See, e.g., Small v. State,
736 N.E.2d 742, 745 (Ind. 2000) (permitting admission of
deposition answers because witness could not recall making
specific statements in the deposition, but failing to address
whether witness affirmed that she was truthful at the time of
the deposition); Smith v. State, 719 N.E.2d 1289, 1291 (Ind. Ct.
App. 1999) (stating only that “the report reflected [the wit‐
ness]’s knowledge correctly” without explaining why).
It is easy to see why an endorsement from the witness
would be important for many types of recorded recollection,
such as diaries, letters, written reports, memoranda, or data
compilations. A witness might be able to authenticate her
signature, or her habit of writing every evening in a diary, or
her acquaintance with the purpose and recipient of a memo‐
randum, without necessarily remembering what was said as
a matter of substance. And this kind of vouching serves an
important purpose for those kinds of records, because there
is nothing otherwise to ensure that it is this witness’s recol‐
lections that were recorded.  
I recognize, however, that it is not up to this court to de‐
cide whether the Supreme Court of Indiana correctly inter‐
86 No. 14‐1898
preted its own rule of evidence. This is so even though that
court barely touched on the reason why the videotape was
inadmissible. Here is the entirety of its explanation for the
conclusion that the final element of Indiana’s Rule 803(5)
was not satisfied:
Buck testified twice that she had no memory of
being interviewed by the police in 1998. (Trial
Tr. at 2985.) As a result, the trial court correctly
denied Kubsch the opportunity to read Buck’s
statement into evidence, because Buck could
not vouch for the accuracy of a recording that
she could not even remember making.
Kubsch II, 866 N.E.2d at 734–35. This merely describes the
fact that this was a matter “about which [the] witness once
had knowledge but now has insufficient recollection” to
permit full and accurate testimony. Indiana made clear at the
time it adopted Rule 803(5) that “insufficient” recollection
includes no recollection at all. There is thus no reason to
think that the total absence of recollection precludes the use
of the rule.  
The Indiana Supreme Court did not express any doubt
that the other requirements of Rule 803(5) were satisfied. For
purposes of Chambers, then, we have a situation in which the
state hearsay rule was used to block critical evidence. There
were, however, just as in Chambers, substantial assurances of
reliability of this evidence, which I discuss below. This was
therefore a situation in which the due process command ex‐
pressed in Chambers should have overridden the state’s evi‐
dentiary rule.
No. 14‐1898 87
B
Putting Chambers temporarily to one side, the fact that the
showing at trial was inadequate to satisfy the letter of Rule
803(5) takes us to one of Kubsch’s other theories: that he re‐
ceived ineffective assistance of trial counsel in a number of
respects, including “in their attempt to admit Amanda
Buck’s videotaped statement.”1 Counsel failed to take any of
a number of readily available steps to meet the requirements
of Rule 803(5)—steps that were necessary, under Wiggins v.
Smith, for effective assistance of counsel. Indiana courts re‐
quire that the witness whose recollection has faded need on‐
ly tell the finder of fact that her statements in the recording
were accurate. Kubsch’s attorneys never asked Mandy that
question. Instead, they dropped the subject after establishing
                                                  1 My colleagues attempt to rehabilitate Kubsch’s lawyers in this re‐
spect, but they are forced to resort to speculation about what a proper
investigation would have revealed. As the Supreme Court has made
clear, however, it is essential to evaluate the question whether counsel’s
investigation was constitutionally sufficient. See Wiggins v. Smith, 539
U.S. 510 (2003). There the Court faced a case in which the petitioner’s
claim “stem[med] from counsel’s decision to limit the scope of their in‐
vestigation into potential mitigating evidence.” Id. at 521. Quoting from
Strickland, the Court reaffirmed that “counsel has a duty to make reason‐
able investigations or to make a reasonable decision that makes particu‐
lar investigations unnecessary.” Id. In addition, the Court squarely rec‐
ognized that it is not enough to gather “some” information. Id. at 527. In
language that applies with equal force to Kubsch’s case, it held that “[i]n
assessing the reasonableness of an attorney’s investigation, however, a
court must consider not only the quantum of evidence already known to
counsel, but also whether the known evidence would lead a reasonable
attorney to investigate further.” Id. Just so. Kubsch’s lawyers knew about
Mandy’s videotaped statement, but that evidence would have led a rea‐
sonable attorney to investigate further. Their failure to take that step
amounted to constitutionally ineffective assistance.  
88 No. 14‐1898
the fact that she could not recall speaking to the police,
which relates to a different requirement of the rule (one that
was easily met). They should have asked her whether she
would have told the police the truth if such an interview had
taken place, but they did not. They could have shown her
the beginning of the videotape on the record—the trial tran‐
script indicates they showed Mandy the tape off the record
but never put her back on the stand afterward—and asked
her whether she was the girl depicted in the recording. They
could have asked Monica or anyone else who knew Mandy
well about her reputation for truthfulness. Any of these
steps, and certainly all of them taken together, would have
met the requirements Indiana courts have set for compliance
with Rule 803(5)’s requirement for evidence that shows that
the recording reflects the witness’s knowledge correctly.  
Counsel also could have taken steps to counteract the tri‐
al court’s assumption that it would have been so easy to im‐
peach Mandy’s videotaped account that any error in refus‐
ing to allow it as a prior inconsistent statement would have
been harmless. The state urged that this was the case based
on the telephone call from Mandy’s grandfather, Lonnie, a
few days after the interview urging the police to disregard
her statements because she was supposedly mistaken about
the day she was talking about. According to Lonnie, every‐
thing Mandy recounted had happened on Thursday, Sep‐
tember 17, not on Friday the 18th. But there is no reason to
conclude, without any adversarial testing, that Lonnie was
correct. No evidence at all indicates how reliable his source
of information for that statement may have been. He may
have been trying to extricate his granddaughter from in‐
volvement in the murder trial, or he may have had some
other motive that no one ever explored.  
No. 14‐1898 89
Had counsel for Kubsch been on their toes and complied
with their duty to investigate in conformity with Wiggins,
there are many ways in which they could have rehabilitated
Mandy’s very clear testimony (see Appendix B) that she was
recalling the events of Friday, just four days earlier than the
interview. Anyone who watches the video can only be im‐
pressed by how articulate, bright, and forthcoming Mandy is
in it. If there were some concern about the fact that Mandy
was nine years old at the time, counsel could have put Man‐
dy’s mother, Monica, on the stand and asked on what day of
the week she was paid and whether she possibly could have
been depositing her paycheck on a Thursday. Records from
Monica’s bank could have been subpoenaed to see when
that deposit was made, and additional evidence such as se‐
curity camera footage could have shown the day on which
she was there. The school district could have been subpoe‐
naed for records confirming on what day the field trip that
Mandy discussed in detail actually took place. Kubsch’s
counsel did none of these things.
My colleagues dismiss the video as unreliable, but saying
so does not make it so. In fact, many factors support the reli‐
ability of this video, both for purposes of substantive evi‐
dence and for purposes of impeachment:
 It was created only four days after the
events about which both Mandy and Mon‐
ica were speaking.
 Because the method of recording the recol‐
lection was video, rather than audio or
writing, there was no chance that the identi‐
ty of the speakers nor the content of their
statements could be mistaken.
90 No. 14‐1898
 Mandy provides an elaborate timeline and
describes small details from her direct ob‐
servations of the victims at their home.
 Mandy’s mother, Monica, was present
throughout the interview and provided
corroborating details at numerous points.
 Neither Mandy nor Monica had any per‐
sonal interest in the case; there was thus no
reason to fear that their accounts were
slanted one way or the other.
 Both Mandy and Monica were available at
trial to testify after the video was shown, at
which point the jury would have been able
to weigh their live statements at trial
against their recorded statements on the
video.
The failure to take steps that would have allowed the
videotape to be admitted for all purposes pursuant to Indi‐
ana Rule 803(5), and that would also have permitted its use
to impeach Mandy’s statement at trial that she “probably
didn’t see” Aaron that afternoon, amounted to insufficient
performance for purposes of Strickland v. Washington, 466
U.S. 668 (1984). It also severely prejudiced Kubsch. Mandy’s
videotaped testimony, if believed, would have shown that
the murders of at least Rick and Aaron, and probably Beth
(on the theory that Rick and Aaron interrupted the assault
on Beth), took place at a time when Kubsch was already in
or on his way to Michigan to pick up Jonathan. This was eas‐
ily Kubsch’s strongest defense to the charges, and it was
No. 14‐1898 91
swept away by a combination of the trial court’s evidentiary
rulings and counsel’s ineffectiveness.
C
The majority argues that despite the inherently credible
nature of the video and Mandy’s statements on it, there were
three other primary reasons for concluding that it was not
reliable enough to meet the Chambers standard for use at tri‐
al: first, that Mandy’s statements were not corroborated; sec‐
ond, that she was “essentially unavailable” for cross‐
examination; and third, that Detective Reihl “never pushed”
Mandy on “critical details” during the 1998 interview, such
as whether she had her dates and times correct. Ante at 27–
30. I begin with the last contention. A review of the tran‐
script at Appendix B shows that this is simply not the case.
The majority posits that Reihl “was simply taking [Mandy’s]
account as she spoke,” but Reihl repeatedly stops and
“pushes” Mandy to confirm what she is saying. He asks her
over and over whether she is talking about Friday’s events.
(E.g., “[D]o you remember last Friday?” “And did they pick
you up Friday?” “Was that white truck at Rick’s house Fri‐
day?” “Friday, after you got home, they left just a little bit
after when you got home, right?”) At the end of the inter‐
view, Reihl turns to her mother, Monica, and asks again for
assurance: “[t]hese times that you’ve given me today, uh,
these are pretty accurate?” Monica responds that they were,
“pretty well,” because “sometimes I have to stay a couple
minutes after, so, I get home a little later. And that was just
so happen [sic] to have been one of the days that was a little
bit later.” It is also clear from the transcript that this was not
the first time Monica and Mandy had spoken to Reihl about
that past Friday’s events. At various points, Reihl indicates
92 No. 14‐1898
that he was following up on a conversation they had previ‐
ously “at the house.” Given these repeated assurances, there
was little reason for Reihl a day later to ask the two inter‐
viewees yet again “about the possibility that her memory
had confused events of two different days,” as the majority
suggests is necessary to meet the requirements of Chambers.
Ante at 42. For all we know, Reihl did not like what he was
hearing and was hoping that they would change their story.
The majority also understates the degree of corroboration
for Mandy’s account in the videotape (as I have said, corrob‐
oration that is just as good as that found in Chambers itself).
Mandy’s own mother interjects corroborating remarks re‐
peatedly during the interview. My colleagues push this to
one side because they believe that Monica’s subsequent off‐
the‐record, non‐testimonial statement to police that she (but
not Mandy) had the wrong day effectively erased Monica’s
own consistent corroboration in the video. The transcript
provides no support for this interpretation. To the contrary,
Monica is an active participant who provides her own de‐
tailed account of her afternoon on that Friday. Like Mandy,
Monica herself saw Aaron after school, even though she did
not see Rick. (No one thinks that Aaron and Rick took sepa‐
rate cars to the Kubsch house; Aaron was far too young to
drive.) And, as I already have pointed out, there was much
more corroboration easily within reach.  
Last, some precision is necessary with respect to Mandy’s
availability for cross‐examination. She was not “unavailable”
in the sense of not being present at trial. She was in the
courtroom and she testified; at least one aspect of her testi‐
mony, as the Indiana Supreme Court acknowledged, should
have been impeached by her statements on the video. She
No. 14‐1898 93
was “unavailable” only because her memory had failed. But
that is true of every witness proffered under Rule 803(5). In‐
diana courts, like others, look for the next‐best assurances.
Mandy never claimed that she was not the girl on the tape,
nor has the state ever argued that the “Monica” on the tape
was not Mandy’s mother. There was, in short, ample corrob‐
oration even on the record that exists to satisfy this aspect of
the Chambers rule. The majority sees no way to distinguish
this hearsay from the ordinary mine‐run of hearsay, and it
accuses me of throwing the door open to admission of every
recorded police interview. Not so. In many cases, the witness
will have a good enough recollection of what happened that
Rule 803(5) will never come into play. In many cases, the
proffered hearsay will be cumulative or relevant only to a
peripheral matter. In the great majority of cases, the admis‐
sion of the hearsay statement will not have life‐or‐death con‐
sequences. The dissent in Chambers worried about exactly
the same things the majority here invokes. But the dissent
did not prevail, and the Supreme Court has continued to fol‐
low Chambers in the small group of cases to which it applies.
This court should not be second‐guessing the Supreme
Court, but I fear that is what the majority has done. Under
its view, Chambers will never apply to allow a defendant to
introduce pivotal evidence, if a state rule would block it. By
so ruling, it is contravening the Supreme Court’s command
that “the hearsay rule may not be applied mechanistically to
defeat the ends of justice.” Chambers, 410 U.S. at 302.
In fact, this case is as close to Chambers as anyone is likely
to find. My colleagues misapply the Supreme Court’s guid‐
ance in Williams v. Taylor, 529 U.S. 362 (2000) (O’Connor, J.),
when they insist on a precise factual match between Cham‐
bers and the present case. The Court has never insisted on
94 No. 14‐1898
factual identity between its earlier case and the new one. See
id. at 407 (“[A] state‐court decision also involves an unrea‐
sonable application of this Court’s precedent if the state
court either unreasonably extends a legal principle from our
precedent to a new context where it should not apply or un‐
reasonably refuses to extend that principle to a new context where
it should apply.”) (emphasis added). Kubsch’s situation, while
differing in some details from Chambers’s, is close enough to
require application of the same principle.
The majority fears that if Chambers requires admission of
the videotape, then state hearsay rules are out the window.
But their gripe is with the Supreme Court, not with me. I
have shown why and how the facts cabin this case. In very
few matters before the court will the price of insisting on ex‐
clusion of evidence that does not fit every technical require‐
ment of the state’s hearsay rule be death. That alone should
lay to rest any fears that granting Kubsch relief under Cham‐
bers will produce the “sweeping” result the majority fears.
Like defendant Chambers, Kubsch was “thwarted in his at‐
tempt to present this portion of his defense by the strict ap‐
plication of certain [state] rules of evidence.” Chambers, 410
U.S. at 289. In Kubsch’s case, the hearsay problem was com‐
pounded by the ineffectiveness of counsel’s efforts to get the
tape admitted.
In Chambers (also a murder trial), the application of the
state’s rules on vouching for witnesses and hearsay prevented
the defendant from calling as an adverse witness the person
who he said was the real murderer and three witnesses who
would have supported that proposition. The state excluded
that evidence notwithstanding the fact that it was created
“under circumstances that provided considerable assurance
No. 14‐1898 95
of [its] reliability.” Id. at 300. Those circumstances included
the fact that the confessions of the apparent murderer to
which each excluded witness was prepared to testify were
“made spontaneously to a close acquaintance shortly after
the murder had occurred”; each was corroborated by other
evidence in the case; and each was self‐incriminatory and
against the speaker’s interest. Id. at 300–01. The alleged true
murderer “stood to benefit nothing by disclosing his role in
the shooting,” and he was in the courtroom during the trial
and so could have been cross‐examined by the state and
evaluated by the jury. Id. at 301.  
Mandy and Monica Buck were not potential suspects in
this case, but their videotaped statements bore equally com‐
pelling indicia of reliability. The majority downplays these
facts, but they overlook the significant ways in which the
Supreme Court itself has confined Chambers. Granting the
writ to Kubsch under Chambers would not abolish the rule
against hearsay, any more than Chambers abolished hearsay
and vouching, the two rules at issue there. A set of very par‐
ticular circumstances must arise to produce a case like
Kubsch’s, or like that in Chambers. As I already have pointed
out, a result in Kubsch’s favor would not lead to the admis‐
sibility as substantive evidence of “all hearsay of this type
[videotapes?],” to use the majority’s words, ante at 45.  
In this case, the operation of Indiana’s hearsay rule, cou‐
pled with counsel’s inadequate efforts with regard to the
tape, prevented Kubsch from showing that he could not
have been the murderer. Like Chambers, Kubsch also tried
to show that someone else was the guilty party—in Kubsch’s
case, his sometime friend Brad Hardy. There appears to have
been significant evidence pointing to Hardy. Indeed, at one
96 No. 14‐1898
point the state had charged him with conspiring with
Kubsch to commit the murders and with assisting a criminal
(Kubsch). Kubsch II, 866 N.E.2d at 731. Hardy wound up tes‐
tifying against Kubsch in the first trial; interestingly, the
state did not drop the charges against him until two years
later.2 The excluded videotaped evidence in Kubsch’s case
had even greater guarantees of reliability than the evidence
before the Supreme Court in Chambers. And the exclusion of
the videotape drastically undermined Kubsch’s ability to
demonstrate that someone else must have committed the
three murders. The Chambers exception exists for just this
kind of case. In my view, the Indiana courts’ refusal to rec‐
ognize and apply it amounts to constitutional error that
must be recognized, even under the demanding standards of
28 U.S.C. § 2254(d)(1).
V
Wayne Kubsch may be a disagreeable man, as Mandy
said in her videotaped statement. His business skills may
have been bad, and he may, as of September 1998, been flail‐
ing around for a way to solve his financial problems. And a
jury with all of the evidence before it may have convicted
him for the murders of Beth, Rick, and Aaron, if it had been
persuaded that Mandy’s videotaped testimony was not wor‐
thy of belief for some reason. But a jury with all of the evi‐
dence before it may also have concluded that Kubsch, no
matter what his other flaws, could not have committed those
                                                  2  As my colleagues point out, Hardy testified against Kubsch in the
second trial. By that time they were surely adverse to one another; in‐
deed, it would not be surprising if Hardy’s charges were dropped in ex‐
change for that testimony.  
No. 14‐1898 97
murders because Rick and Aaron, and perhaps Beth, were
still alive at 3:45 p.m., when Kubsch was already far from the
house driving to Michigan. We will never know, because my
colleagues are unwilling to find either the disregard or in‐
correct application of Chambers here, nor do they perceive
ineffective assistance of counsel. I cannot subscribe to that
result. I therefore respectfully dissent from the decision to
affirm the district court’s denial of the writ and the conse‐
quent green light for Kubsch’s execution.  
98 No. 14‐1898
APPENDIX A
Timeline of events, September 18, 1998
Time Kubsch Beth/Others
6:00 am Near Mishawaka home
(cell record).
Beth is at work in Elkhart
(United Musical Instru‐
ments).
6:50 am At work in Elkhart
(Skyline Corp.).
9:11 am Cellphone call near
work.
10:00 am    Beth finishes shift and goes
home.
10:30 am    Beth pages Kubsch twice
from home.
10:45 am Call to Beth from Sky‐
line break room.
10:48 am    Beth makes a call from
home to Rick’s house.
~10:53 am    Beth goes out to run er‐
rands.
11:08 am    Security camera at Teach‐
er’s Credit Union shows
Beth with the dog in the
car.
11:13 am Kubsch punches out of
work.
No. 14‐1898 99
11:14 am    Beth’s credit union receipt
shows transaction com‐
pleted.
11:30 am to
noon
Kubsch at home (seen
by Erin Honold).
11:37 am Call from home to
American General Fi‐
nance.
11:52 am    Beth meets with credit
counselor Edith Pipke in
South Bend.
12:09 to
12:11 pm
Kubsch makes 1 call to
house and 2 calls to
Rick (cellphone).
12:16 pm    Beth pages Kubsch again.
12:18 pm Kubsch calls the house
(31 seconds) from Os‐
ceola (toward Elkhart).
12:40 pm Kubsch calls house
from break room at
Skyline.
12:46 pm    Rick calls Beth at home.
1:17 pm Kubsch calls house
from break room at
Skyline.
1:52 pm Kubsch punches out
again and does not re‐
100 No. 14‐1898
turn.
1:53 pm Kubsch calls home
from Elkhart area (46
seconds).
2:20 to 2:35
pm
Rick picks up Aaron from
school in South Bend.
2:51 pm Kubsch makes call
from near home (cell
records).
3:15 pm   Kubsch calls Beth’s
mother from Elkhart
(after 10 tries). Cell sec‐
tors indicate he is
heading toward Mich‐
igan.
3:45 to 4:15
pm
Approximate time when
Mandy saw both Aaron
and Rick at their South
Bend home.
4:42 to 4:47
pm
Kubsch makes calls
near Schoolcraft, MI.
5:00 pm Kubsch picks up son
Jonathan in Three Riv‐
ers, MI.
5:30 to 5:45
pm
Kubsch sees Wayne
Temple at Kmart in
Three Rivers.
No. 14‐1898 101
5:30 to 6:30
pm
Kubsch and Jonathan
stop in Osceola at
home of Constance
Hardy.
5:30 pm    Anthony discovers the
bodies of Rick and Aaron
Milewski at the house.
5:56 pm Kubsch makes phone
call on network close
to the house.
6:45 pm Kubsch returns home;
police are there; he
goes to station for first
interview.
9:00 pm    Police discover Beth’s
body in basement; they
bring Kubsch back to the
station.
After 9:00
pm
Kubsch interviewed
second time by police;
he invokes Miranda
rights.
  
102 No. 14‐1898
APPENDIX B
Transcript of Police Interview with Monica and Mandy Buck
September 22, 1998
Det. Mark Reihl: [Inaudible] stepped out for a minute. I’ll go
ahead and start asking you a couple questions. Okay, and
the time is now three o’clock PM. And, today is September
the twenty‐second, nineteen ninety‐nine—nineteen ninety‐
eight. And Mandy, is it M‐a‐n‐d‐y?
Mandy: Uh huh.
Reihl: M‐a‐n‐d‐y. Buck. B‐u‐c‐k?  
Mandy: Uh huh.
Reihl: And you’re how old?
Mandy: Nine.
Reihl: Your birthdate is?
Mandy: Ninety‐eight. Nineteen ninety‐eight. Oh, nineteen
eighty‐nine.
Reihl: This is nineteen ninety‐eight.
Mandy: Nineteen eighty‐nine.
Reihl: What month were you born?
Mandy: February.
Reihl: February. What day?
Mandy: Eighth.
Reihl: Nineteen eighty‐nine.
Mandy: Yeah.
No. 14‐1898 103
Reihl: Alright.
Mandy: But you can ask my mommy on that. I think so.
Reihl: Oh, I’m pretty sure, all right? You’re pretty intelligent.
I think you know.  
Mandy: Yeah, I think that, yeah yeah yeah.
Reihl: Mandy was born February the eighth?  
Monica: Yeah.
Reihl: Nineteen eighty‐nine?
Monica: Mmm hmm.
Reihl: Okay.
Mandy: Cool, I got it right.
Reihl: See, you got it right. Okay. And your mother’s name is
Monica?
Mandy: Uh huh.
Reihl: M‐o‐n‐i‐c‐a? Correct me?
Monica: Yeah.
Reihl: Buck. And you live at thirteen twenty East Indiana in
South Bend.
Mandy: Uh huh.
Reihl: And your home phone is two three three, seven seven
three seven?
Mandy: Two three three seven seven three seven. Yep.
Reihl: Right. And you go to Lincoln School?
Mandy: Yeah.
Reihl: And you’re in which grade? Fourth?
104 No. 14‐1898
Mandy: Yeah.
Reihl: Okay. How’s school this year?
Mandy: Umm, good, even though I have the teacher that,
um, is the Wicked Witch of the West, she’s fine. She’s okay.
Reihl: Well sometimes they gotta be like that so you kids will
listen.
Mandy: Yeah.
Reihl: Okay. Well, the reason you’re here is that you live
right across the street—
Mandy: From Aaron?
Reihl: From Aaron and his dad Rick.
Mandy: Yeah.
Reihl: Okay. And you and Aaron were pretty good friends,
huh?
Mandy: Best friends, yeah.
Reihl: Best friends?
Mandy: [Nods head]
Reihl: How long have you known Aaron?
Mandy: I don’t know. I think he moved there in like the be‐
ginning of May I think. Just beginning. I don’t know. I never
kept track of it. I don’t know. ‘Cause he told me one day and
then I just forgot.
Reihl: Oh, that’s okay.
Mandy: I can’t remember I think—
No. 14‐1898 105
Reihl: Time just goes by so fast, doesn’t it? And you said that
Aaron used to talk sometimes about things that made him
sad?
Mandy: Mmm hmm. [Nods head]
Reihl: Made him upset?
Mandy: Right, and like he, he he wished his mom didn’t
break up with his dad and like go with Wayne. He was like,
he didn’t like Wayne.
Reihl: Aaron didn’t like Wayne?
Mandy: No.
Reihl: Well how come?
Mandy: Um because, like, he would get rough with him and
stuff and punch him too hard and stuff like that.
Reihl: Was it because—did he ever say was it because
Wayne was mad at him or were they just playing?
Mandy: He never said, he never said why he didn’t like him
he just said like, he just said he just didn’t like him because
Wayne was just like too rough and stuff.
Reihl: Okay. Did he ever say if Wayne ever was rough with
his mom?
Mandy: No.
Reihl: You didn’t talk about that?
Mandy: No.
Reihl: Okay. What else did you guys talk about?
Mandy: Um, we talked about like, why he moved here and
like what we wanted to be when we got older and, um, who
106 No. 14‐1898
are our friends and where we used to live and, like, and I
introduced him to my parents; he introduced me to his dad.
Then we just became best friends.
Reihl: That’s great.
Mandy: I always went over to his house. He always came
over to my house and like we like used to study for the same
spelling words. He’d give me my spelling words and I
would give him his spelling words. And we would help
each other on homework and stuff. We were pretty good
friends.
Reihl: That’s, that’s wonderful.
Mandy: We got along really good.
Reihl: He’s a pretty good kid, huh?
Mandy: Mmm hmm. [Nods head]
Reihl: Smart?
Mandy: Uh huh. [Nods head] He knew, he knew his times
pretty good. He could, he could just do ‘em in a flash. He
was pretty good at ‘em. He’s a lot better than me.
Reihl: Did you, did you say you used to walk to school with
him sometimes?
Mandy: Uh no, I never walked.
Reihl: Oh, you never did.
Mandy: No. I see—I seen him walk to school.
Reihl: Uh‐huh.
Mandy: I never walked to—I never walked to school or to
my house alone.
No. 14‐1898 107
Reihl: Okay, and how would he get home?
Mandy: Um, usually some, if he wasn’t grounded from his
bike would ride his bike home. He would walk home. His
dad would come and pick him up when he had his truck.
Um, Rick would walk to school and pick up Aaron. They
would walk back home together.
Reihl: Mmm hmm. And, and you guys get out of school at
what time?
Mandy: Two twenty.
Reihl: Two twenty. And how long does it take him to get
home do you think?
Mandy: Mmm probably like—we don’t live too far from
Lincoln. All you gotta do is go straight and turn and you’re
there.
Reihl: Oh.
Mandy: Probably like five minutes to get there.
Reihl: Uh‐huh. Okay.
Mandy: If he was riding his bike it would only take him like
two minutes. But if he was walking it would probably take
him a pretty long time.
Reihl: Mmm hmm. Now, do you remember last Friday?
Mandy: Yeah.
Reihl: Okay. And you told me earlier that you go to the Al‐
phabet Academy?
Mandy: Uh huh. [Nods head]
Reihl: And that they usually pick you up at school, right?
108 No. 14‐1898
Mandy: Uh huh. [Nods head]
Reihl: Okay. And did they pick you up Friday?
Mandy: Uh huh. [Nods head]
Reihl: And you went straight to the Alphabet Academy?
Mandy: Uh huh. [Nods head]
Reihl: And say then you what, your mom picks you up from
there?
Mandy: Uh huh. [Nods head]
Reihl: Okay. And you said you picked her up about what
time?
Monica: Between three thirty and quarter to four.
Reihl: Okay. And you went straight home? Or where’d you
go?
Monica: I usually call down there and I watch her walk from
there down to our house. And then I waited for my mom
and dad to get home, and I went and cashed my check and
came home.
Reihl: Okay, when you got home at three thirty, um, did you
notice if Rick was at home across the street?
Monica: I didn’t pay no attention. All I saw was Aaron.
Reihl: You saw Aaron?
Monica: Mmm hmm.
Reihl: You don’t remember if Rick’s truck was there?
Monica: No.
Reihl: Okay. And, then Mandy you were telling me that
when you got home that was about what time?
No. 14‐1898 109
Monica: From day care?
Reihl: Yeah.
Monica: That was around three thirty, quarter to four.
Reihl: Okay, and that’s when you saw Aaron?
Mandy: Uh huh. [Nods head]
Reihl: And you saw his dad?
Mandy: Uh huh. [Nods head] His dad, he, his dad was com‐
ing from their living room into the kitchen to get something
to drink.
Reihl: Did you go over to Aaron’s house or you just saw him
from your house?
Mandy: I, I, um, when I walked, when I, every day when I
walk home I always see Rick walk into the kitchen or walk
into the restroom or walk into his room.
Reihl: I mean, did you see him from outside looking in or
did you actually go into the house?
Mandy: No, I um seen it from the outside ‘cause when ‘cause
I seen him go into the kitchen. When he came back he had a
drink in his—he had, um, some um—I don’t know what it
was. He had a drink in his hand but it was in a cup.
Reihl: Okay.
Mandy: Like usually pop, ‘cause they like, they like Storm a
lot. So, probably Storm.
Reihl: What, uh, what does Rick drive?
Mandy: A Chevy? He used to drive a Chevy until it broke
down.
110 No. 14‐1898
Reihl: A Chevy what?  
Mandy: [Eyes searching, no verbal response]
Reihl: Is it a car or a truck?
Mandy: Truck.
Reihl: What color?
Mandy: Black.
Reihl: Okay.
Mandy: It’s like, kinda short. I mean like it—did you see my
mom’s truck? Um, well, uh my mom’s truck, my mom’s
truck’s pretty big. His is probably a medium truck, you
know. Kinda short.
Reihl: What was he driving Friday? Did you see that?
Mandy: Um, his truck broke down before that. He was
drive—driving a white truck which was his brother’s. And
his brother had a car so his brother let Rick use the truck.
Reihl: Okay. Was that white truck at Rick’s house Friday?
Mandy: Yeah.
Reihl: When you got home from school?
Mandy: Yeah.
Reihl: Okay. And this is about what time again?
Monica: Three thirty, quarter to four.
Reihl: Okay, so between three thirty and quarter to four—
Mandy: Yeah.
Reihl: You saw—
Mandy: Aaron and Rick.
No. 14‐1898 111
Reihl: Okay, at the house. Did you ever see ‘em leave?
Mandy: Um, yeah, like I was on my porch and, and they let
me blow bubbles. And I was blowin’ my bubbles, and I seen
Rick pull out and leave.
Reihl: Okay. Now how long, how long after—and this might
be hard to guess at—‘cause you probably don’t wear a
watch, do you?
Mandy: Well, until my watch, well, yeah I did but my watch
is in my bag and I—‘cause I had to take it off when we had
gym. I just take it off.
Reihl: So, about what time do you think they left their house,
if you had to guess?
Mandy: Um—
Reihl: I know it’s gotta be a hard question.
Mandy: Um—
Reihl: Was it very long after you got home?
Mandy: Mmm, medium. Because his mom lives pretty far
away, you know. And you know but I think it was like—I
don’t know.
Reihl: Okay.
Mandy: It was probably in like medium because you know it
takes a pretty long time to get to his mom’s house.
Reihl: Well why was he going to his mom’s house. I think he
told you, didn’t he?
Mandy: Um, I guess to just visit her.
Reihl: Okay, did he talk about going to his mom’s house?
112 No. 14‐1898
Mandy: He said that he was going to his mom’s house Fri‐
day, ‘cause he was gonna stay the night there to go to the
field trip Saturday. So it was probably why, and Rick proba‐
bly wanted to stay a little while to talk. You know, he was,
he—he wanted to go on the field trip bad. So, they were
gonna leave pretty early to get to the school on time to go.
But by the time Saturday when we, when we were on the
bus and stuff, he was gonna be in our group, and, um, he
never showed up. He wasn’t there. And we didn’t know
why. But Saturday—Sunday when we got home with my
cousins, um, ‘cause we go camp—we went camping after the
field trip, we just went, we came back from the field trip,
and my mom drove her truck back to the, back up to our
house and up to the camper and, and my grandma goes,
“Did you see Aaron?” and I’m like, “No, he was supposed to
be in our group, he wasn’t there.” And then Sunday, um, my
um, my day care teacher said they showed it on TV but my
grandpa didn’t get, my grandpa didn’t turn it on there be‐
cause he, he didn’t know it was they got murdered Friday
night. So, I mean, and then Monday, um, Monday, Monday
News Center 16 came to my house, and I was at karate
‘cause I, I had practice. When we came home my grandma
said News Center 16 just, just came to our house like, proba‐
bly a while ago.
Reihl: So you didn’t get a chance to talk to him then, huh?
Mandy: No.
Reihl: So, Friday, after you got home, they left just a little bit
after when you got home, right?
Mandy: Yeah.  
Reihl: And you saw ‘em leave?
No. 14‐1898 113
Mandy: Yeah. He pulled out.
Reihl: And they were just together, Rick and Aaron, nobody
else with ‘em?
Mandy: No one else was with them, just Aaron and Rick.
Reihl: Okay.
Mandy: ‘Cause Rick, ‘cause Aaron’s mom—He didn’t know
if Aaron’s mom was home yet so Rick was thinking if his
mom’s not there, then Wayne’s probably not there. So, he
said, “I’ll just drive you,” and they just took off, pulled out
and took off.
Reihl: Okay.
Mandy: And—
Reihl: Monica, Monica, I’m sorry.
Mandy: And Fri— and Thur—and when I was playing with
them—
Reihl: Mmm hmm.
Mandy: There was, he had some clothes laying on his, laying
on his on their swing on the front porch. Um, he had a whole
bunch of clothes laying on there and I, I didn’t know what
they were for. You know, I thought he was gonna spend the
night there Saturday and Sunday, come home Monday. Um,
Sunday’s rolling around and he wasn’t there. Saturday, Sat‐
urday the field trip, he wasn’t there.
Reihl: Monica, you said something back at your house when
I was talking to you about um, you said you’d cashed your
check.
Monica: Yeah.
114 No. 14‐1898
Reihl: Friday?
Monica: Yeah.
Reihl: And that was about what time? Was that after you
come home from work?
Monica: Shortly after I came home from work.
Reihl: Okay. And, what time do you think that was?
Monica: Let’s see. Probably about ten minutes till four.
Reihl: Okay. So then you got home then about—how long
were you gone to cash the check?
Monica: Probably about fifteen minutes.
Reihl: Okay, and when you got home, that would have put it
a little after four o’clock? And was Rick still at the house
then?
Monica: I didn’t pay no attention. Like I said, all I saw was
Aaron. I really didn’t look to see if Rick’s truck was there.
Reihl: Well, Aaron was still there when you got back after
you cashed your check?
Monica: Yeah.
Reihl: Okay. And you don’t remember if that truck was in
the—
Monica: Nuh uh, I didn’t pay no attention.
Reihl: Okay, um—You said something, too, didn’t you about
you overheard something one time a couple months ago.
Monica: Yeah. I don’t, like I said, I don’t know who the
woman was. But he was standing, they were standing in
their driveway. And, well he was standing in the driveway.
No. 14‐1898 115
She was sitting in the truck. And, uh, I couldn’t hear what
she was saying, but he was, you know, he was saying the F‐
word, and F him, he don’t scare me, and he was just going
on and on and on. And then he, then she left, and he just
went into the house.
Reihl: This truck, what did it look like?
Monica: It was a, it was a little black truck.
Reihl: Do you know, do you know your vehicles? Do you
know the difference between a—
Monica: Well, the lettering on the back was kinda, on the
back of it was kinda like, rusted like, and you couldn’t really
tell what kind of car it was—
Mandy: Um—
Monica: —what kind of truck.
Mandy: Aaron’s dad’s truck had Chevy right there. It was
just printed beautifully. It was gold and it was just right on
there. You could just read it, so it couldn’t have been Aaron,
Aaron’s dad’s truck, ‘cause Aaron’s dad’s truck was, but, it
was still there where he, it broke down. I mean Aaron’s
truck’s, dad’s truck was just beautiful. The Chevy was just—
Reihl: But was this was this his ex‐wife? Was this—
Monica: I don’t know.
Reihl: —Elizabeth?
Monica: I don’t know who she was. Like I said, all I saw, all
I, I never seen the woman. You know, I, I just know that she
had blonde hair. Well, I seen her face, but she had blonde
hair.
Reihl: Was she a passenger in the truck?
116 No. 14‐1898
Monica: No. She was driving it.  
Reihl: Okay.
Monica: And this was, then I saw her once a little while after
that. You know, like a, I don’t know, a couple weeks later.
And that was the last time I seen her.
Reihl: What was she driving then?
Monica: Same thing.
Reihl: This truck?
Monica: Mmm hmm. I don’t know, I don’t, like I said I don’t
know who she was.
Mandy: Aaron’s mom’s, mom has um, blonde hair.
Reihl: Mmm hmm. I was just trying to see if maybe you
could describe this truck. Was there anything, was it, was it
a pickup truck where it has the open bed in the back or was
it all closed up?
Monica: Uh, let me think. I think it was open. See, ‘cause the
one that that, ah, Aaron’s dad used to drive had the little
things that went down the side.
Reihl: Mmm hmm.
Monica: But it wasn’t all closed in. It just had like little, I
don’t know what you’d call ‘em, it went from the top all the
way to the back of the truck, and it was just a short thing.
This one was all open, I believe. I think it was.
Reihl: It was just like a regular pickup truck.
Monica: Yeah.
Reihl: Okay. So it wasn’t like a little sport utility vehicle?
No. 14‐1898 117
Monica: No.
Reihl: Like you see like one of those Suzuki Samurais or
something like that?
Monica: No. It was—
Reihl: Kids drive a lot.
Monica: It was pretty rusted.
Reihl: Okay. All right. But you don’t know whether or not
that was his—
Monica: No I have no idea.
Reihl: His ex‐wife Elizabeth or not? All right.  
Monica: I just know that he was highly upset that day.
Reihl: Oh.
Monica: And she didn’t look too happy, and she left and he
went into the house.  
Reihl: Okay.
Monica: Yeah, I don’t even, I don’t know who his ex‐wife is.
I mean, it could have been her, but I, I don’t know.
Reihl: Okay. Was there anything else? I can’t remember ex‐
actly what all we talked about at the house but, did you say
that, uh, I was thinking that you said that Aaron had made
some comments to you before, too, about—
Monica: Oh, he just told me the once.
Reihl: Oh.
Monica: He just told me one time that he doesn’t like his
stepdad. But, I just figured he was just being a kid.
Reihl: Yeah.  
118 No. 14‐1898
Monica: You know, “My mom and dad’s divorced but I real‐
ly don’t like this guy. I don’t want Wayne really to be with
my mom. I’d rather, you know, him and my mom be togeth‐
er—”
Reihl: Mmm hmm.
Monica: “—than my stepdad,” kinda thing. That’s all I
thought it was. So I just really didn’t pay no attention to it.
Reihl: Okay. Okay. All right. Well, just so I got this right
then, Mandy, you got home at about three thirty, quarter of
four and you saw Aaron and his dad and that white truck at
his house?
Mandy: Yes.
Reihl: And then, Monica, you got home from cashing that
check around four o’clock or a little after, and you saw them
both at the house, or at least you saw Aaron?
Monica: Yeah, I saw Aaron.
Reihl: Okay. But you never saw ‘em leave.
Monica: No. I was in the house by the time they left.  
Reihl: Okay, and Mandy, you did see ‘em leave, but you
don’t know exactly when it was that they left?
Mandy: Yeah. I seen ‘em leave, but, you know I didn’t see
no, I didn’t see no bags in the truck. And when, when they
left, the clothes were still there.
Reihl: Okay. On the swing?
Mandy: Um, yeah. ‘Cause when his grandparents were
there, they picked up the clothes and just threw ‘em in the
box.
No. 14‐1898 119
Reihl: Okay.
Mandy: And we thought that he was moving, like he didn’t
like the neighborhood so he was moving. What we thought,
and I don’t know if it, I didn’t know if Rick and Aaron Fri‐
day were gonna go look for a new house or go to his mom’s.
I didn’t know, I thought they were going to look for a new
house and then come back, and you know, and go. Like,
then go to his mom’s. But, I didn’t, I didn’t know.
Reihl: Okay. These times that you’ve given me today, uh,
these are pretty accurate?
Monica: Mmm hmm. Yeah, ‘cause I get off work at quarter
after three. And with the traffic and that, and sometimes the
South Shore comes by and you gotta wait for that.
Reihl: Mmm hmm.
Monica: So, yeah, pretty well.
Reihl: It’s pretty much a routine that you do every day?
Monica: Yeah.
Reihl: Every day that you work, that is?
Monica: Yeah. Sometimes on, sometimes I have to stay a
couple minutes after, so, I get home a little later. And that
was just so happen to have been one of the days that was a
little bit later.
Reihl: Okay. All right. I, I don’t have any more questions
that I can think of at the moment. Do you have anything else
that you can think of? Maybe I overlooked, that I have over‐
looked?
Monica: No. Do you?
Mandy: [Shakes head]
120 No. 14‐1898
Reihl: I thank you very much for coming down. I’ll take you
back home now. The time is, uh, three twenty PM. [Pause] I
told you that would take you about fifteen, twenty minutes.
Mandy: [Pointing to ceiling] Is that your camera?
Reihl: It’s up there.
Mandy: Oh, there it is. I thought it was—it’s in that vent
right there.

Outcome: Affirmed

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