Wayne Kubisch v. Ron Neal

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.

Affirmed