*1 underlying resti- require not facts MVRA jury). aby
tution calculations to be found
Similarly, every (except circuit court Circuit) has that Apprendi
Federal held United MVRA. See apply to the
does (2d Bengis,
States v. 783 F.3d 411-13
Cir.2015); Jarjis, Fed.Appx. at 261-62 Fourth, Seventh,
(citing cases from Circuits); United States v. Milkiew-
Ninth
icz, (1st Cir.2006) 470 F.3d 403-04 Second, Third, Fifth,
(citing cases from
Sixth, Seventh, Ninth, Tenth, Eighth, Circuits). Many
Eleventh of these cases Southern Union distinguished also Appren-
and held that it does not extend
di ’s rule to restitution. For all these rea-
sons, we conclude that the district court’s proper.
restitution order was
III. CONCLUSION
Because the court district did not com- any evidentiary
mit errors reversible
properly took account of or ac- dismissed Churn,
quitted sentencing conduct in we
affirm judgment. its
Wayne KUBSCH, Petitioner-Appellant, NEAL, Superintendent,
Ron Indiana Prison,1 Respondent-
State
Appellee.
No. 14-1898. of Appeals,
United States Court
Seventh Circuit.
Argued 2015. Feb. Aug.
Decided respondent-appellee Superintendent. R.App. 1. We See Fed. Pro. have substituted as mer Neal, Superintendent 43(c)(2). Ron the current of the Prison, Wilson, Indiana State for Bill the for-
Stephen Creason, R. James Blaine Mar- tin, Office Attorney General, of the India- IN, napolis, Respondent-Appellee. WOOD, Before Chief Judge, and HAMILTON, TINDER and Circuit Judges.
HAMILTON,
Judge.
Circuit
Wayne Kubsch appeals the denial of his
corpus petition.
habeas
being
After
con-
wife,
son,
victed of murdering his
her
ex-husband,
her
Kubsch
sentenced to
was.
death. Kubsch’s
principal
three
argu-
appeal
ments on
are that his conviction
and sentence are unconstitutional because
(a) the Indiana trial court excluded evi-
dence of a witness’s exculpatory but hear-
*5
(b)
say statement to police,
he was denied
effective assistance of counsel in seeking
admission of the
hearsay
witness’s
state-
ment,
(c)
his waiver of counsel and
represent
choice to
himself at the sentenc-
ing phase of his trial were not knowing
voluntary.
reject
We
all three claims. Kubsch ar-
gues for a
constitutional
to defend
himself with otherwise inadmissible hear-
say, at least if
hearsay
seems suffi-
ciently reliable
sufficiently impor-
and is
tant
to his defense. See Chambers v.
284, 300-02,
Mississippi, 410 U.S.
93 S.Ct.
(1973).
in a careful discussion
trial,
of the claim was
rejection
Its
big
of this case.
differences
the second
two
applica
unreasonable
contrary to or an
avoiding
the errors that had
addition
federal law as
clearly established
tion of
First,
required the new trial.
Kubsch of-
of the
determined
interview
videotaped
as evidence the
fered
28 U.S.C.
States.
See
United
Buck, nine-year-old neighbor
of Amanda
Richter,
2254(d)(1);
Harrington
§
v.
told
Aaron and Rick Milewski. Amanda
86, 102-03,
178 L.Ed.2d
131 S.Ct.
U.S.
mur-
days
four
after the
police
detective
(2011).
that she had seen both Aaron and
ders
hearsay
exculpatory
to the
In addition
Rick alive and well at their home on the
claim, the related ineffective assistance
day of the murders at a time for which
claim,
of counsel claim that
and the waiver
judge ex-
Kubsch has a solid alibi. The
detail,
num-
raises a
we address
Kubsch
hearsay
cluded her recorded statement as
arguments
appeal,
all of
ber of other
value.
having
impeachment
and as
no
challenges
are
to the effectiveness
which
trial,
Second,
first
Kubsch de-
unlike the
all of
his counsel. We have considered
him-
represent
counsel and
cided waive
reject
arguments,
additional
and we
these
sentencing
trial.
phase
self in the
of the
Judge
for the reasons Chief
Simon
them
present any mitigating
He also declined to
thorough opinion.
See
explained
jury
agreed
He told the
evidence.
Superintendent,
No. 3:11CV42-
Kubsch
mitigating
that no
factors out-
State
(N.D.Ind.
PPS,
Dec.
Kubsch’s second
March
E.g.,
novo.
Harris v.
jury
more a
convicted court’s decision de
our focus. Once
(7th
house,
police
That Kubseh had finished Kubseh Against B. The Case factory shortly work an area before 2:00 afternoon, Late in p.m. he was re- Judge aptly Simon described Chief turning to picking up Mishawaka from his “slow-moving against case Kubseh as a Rivers, Michigan. son in Three He glacier accumulation of a of circumstantial dropped off his son at Kubsch’s grand- A at *3. evidence.” WL mother’s home. Kubseh arrived home that Kubsch’s account of critical factor was about 6:45 and found the house surrounded changed dramatically be- his own actions by police. Kubseh was told that Aaron of the murders his night tween the and Rick were dead and that no one knew testimony, after trial he knew con- Beth where was. imposed physical straints and other Kubseh police soon went with officers to telephone evidence such as records. police the South Bend department Kubseh with his wife Beth in Mish- lived questioning detectives. That initial in- awaka, They Indiana. shared the home terview was audio- and video-recorded. son, twelve-year-old Anthony with Beth’s careful, appeared preoccupied Kubseh Earley. September 1998 was Beth’s distraught or frantic. He made no birthday. planned She had to meet reference to the search for missing his Kubseh for lunch. supposed Beth was wife, though obviously powerful there were up Anthony pick late the afternoon after safety. reasons be worried about her a school dance. did not appear, When she He showed little emotion. Anthony got a ride home with a friend. At night that first interview on the 5:30, about he found Beth’s car in the murders, gave police Kubseh driveway, along with a truck that her ex- first account of his movements and activi- Rick using. husband Milewski was day. ties that Kubseh said that he and Beth, Only Wayne, house was locked. planned Beth had to meet for lunch to Anthony keys. No to be had one seemed birthday, that he had celebrate her but sign entry. home. There was no of forced to cancel because he had been called her Anthony As looked around the main morning. He also said late for work house, though, floor of the he saw blood- gotten permission that he had to leave signs of a struggle. opened stains and He *7 early buy for lunch so he could Beth work the door to the basement. He saw Rick birthday (something he did not present a lying at the foot of the stairs. The handle in actually day). do until much later the large sticking of a kitchen knife was out of police gone He told the that he had home stairs, Anthony his chest. went down the get at lunch but could not inside because dead, realized Rick was and also found the key. forgotten he had his house He also body eleven-year-old of step-brother a gone did not mention that he had home lying Aaron next to Rick. shortly after work—before second time — Michigan. in going pick up his son Anthony po- ran for help. Mishawaka His p.m. lice officers arrived about 5:45 Both Kubseh ended the interview. friend multiple Aaron and Rick had stab wounds. Dave Nichols and Nichols’ wife testified police sign gun- no that Kubseh called them about 8:00 or 8:30 The officers found things two known to They sign evening shot wounds. also found no and said yet police. known to the finding Beth. After no one else in the the killer but not killer, they point toward Kubsch as “gone,” that Beth was He told Nichols that she In Kubsch’s car though definitively. Nichols understood mean not which time, At that missing.2 dead, was of a roll of police wrapper found the yet And body Beth’s had not been found. A used to bind Beth. tape type duct of the away might explained be “gone” while top at of the bloody tape roll of duct Kubsch also told Nichols ambiguous, wrapper tape and the stairs matched stabbed and Rick and Aaron had been body. A from the on Beth’s cloth fiber autopsies until were done shot. Not carpet tape roll matched a fiber from the learn that Rick and day police next did the receipt purchase A of Kubsch’s car. Aaron, multiple in to them stab addition days three before the mur- tape, the duct wounds, been shot in the mouth. had each ders, was found in car. Kubsch’s p.m., police 9:00 officers on the At about police also found in Kubsch’s car a The body. discovered Beth’s She was scene wadded-up receipt deposit from a Beth Aaron, Rick just a few feet from but at morning had made the of the murders was hidden underneath the staircase she her drive-through window of credit young Anthony had behind blankets presence receipt union. The of that hiding place “fort” or hung up as sort car contradicted the account he Kubsch’s a few weeks earlier. She had been given police evening of the mur- had al- eleven times. Her head was stabbed (Even trial, explanation Kubsch’s ders. entirely gray tape. most covered duct that he found it next to the home tele- body “hog-tied” with the same Her stop day, on his first at home that phone and ankles all bound to- tape, her wrists improbable physically impossi- if not (An autopsy also gether behind her back. explanation ble. That would have re- to the back of her head and showed blow quired improbable Beth to do some back- defensive wounds on her hands and errands.) tracking between two related wrists.) quickly The officers told the de- course, Of the locked house was also station that tectives at South Bend pointed evidence that toward Kubsch. Beth had been found murdered. The de- The knife Rick’s chest was from the set brought tectives then Kubsch back for upstairs. pan of kitchen knives A kitchen questioning evening. more later that He prose- also had Beth’s blood on it. As the point, talk them at that declined to pointed closing argument, out in if cutor gave permission but he them to search his stranger, killer been a had seems car. improbable that he would have counted on investigation physical The evidence knife, tools found the home—the up pointing turned no evidence conclusive- pan, tape carry and the duct out the —to ly only on the blood found Kubsch. murders. belonged police to the victims. The scene did not find evidence of the victims’ blood Telephone played important records an clothing. They also on Kubsch or his investigation in the and at trial. Re- role fingerprint evidence that found no DNA police call that Kubsch had told that he *8 anyone him or killer. pointed to else as the get returned home at lunch but could not key. telephone in without his Home rec- physical evidence were Various items A ords showed that was false. call had guilt. In iso- consistent with Kubsch’s telephone from the home together placed lation none is conclusive. Taken been wife, DiDonato, juror’s question clear that Kubsch 2. Gina confirmed his to a made Nichols’ response telephone told them that Beth was dead. account of the call and in running while Beth was her errands that she mentioned that she had not been able morning. (Beth’s Kubsch testified at trial that he get to in touch with Beth all day in fact gotten through recall). had into birthday, her, Kubsch reassured house— garage he said he made the telling her that he had talked with Beth —where call, part marijuana cigarette, smoked of a phone and knew Beth was running a num- and then to return to work left around ber of errands and was not at home to noon.3 phone. answer the days Several after the murders, Kubsch told Rasor that he had
Kubsch also made'numerous calls with
day
talked to Beth the
she was killed
phone
day
his cell
on the
of the murders.
and he wished he had.
approxi-
Records of those calls showed his
mate locations at different
times during
Kubsch also
a significant
had
financial
day.
just
left
day
He
work
motive to
prosecution
murder Beth. The
Though
police
before 2:00.
he told the
showed that
couple
was in deep finan-
night of the murders that he had then
cial
in
distress
1998. Their cash flow was
gone directly Michigan
pick up
his
consistently negative. Early
year
son,
actually
he later admitted he had first
Kubsch had
eight
refinanced
of the rental
returned to his home. He claimed that he
owned,
properties he
converting all avail-
stopped
had
at
home for
few minutes
equity
able
into
substantially
cash and
in-
between 2:30 and 2:45 and that no one else
creasing
$424,000.
the total debt to about
(cid:127)
placed
was home. At 2:51 Kubsch
a cell
(cid:127)
Several credit cards or lines of credit were
phone call from a cell sector near his
near their maximum limits. About three
phone
home. Cell
records and other evi-
murders,
months before the
Kubsch had
dence showed that Kubsch then drove to
bought
policy
a new insurance
on Beth’s
Michigan
pick up
his son. The State’s
$575,000,
life for
with himself as the sole
theory has been that Kubsch had an op-
beneficiary. Kubsch claimed at trial that
portunity to commit the murders in the
he had not
realized
were
such
approximately
time between
2:00 and 3:00.
straits,
difficult financial
but he also testi-
Another
important
discrepancy
bills,
couple’s
fied that he took care of the
story
p.m.
Kubsch’s
was that at 12:09
as well as their credit cards and lines of
and,
called Rick
according
Milewski
to credit, and of course he had
all
undertaken
brother,
Rick’s
asked Rick to meet him at
refinancing
year.
earlier that
p.m.
his house at 3:00
to help move a
Judge
As Chief
Simon summarized:
refrigerator.
request
That
is hard to un-
derstand if Kubsch
planning
to be on
against
entirely
The case
Kubsch was
(The
way. Michigan
prose-
then.
eyewit-
circumstantial. There was no
theory
planned
cution’s
was that Kubsch
ness,
evidence,
no DNA
fingerprint
no
body
have Rick find Beth’s
but that Rick
testimony, indeed no forensic evidence
early,
and Aaron showed up too
before
all
that' linked Kubsch to the murders.
too.)
left,
Kubsch had
so he
them
killed
was, however, moderately strong
There
opportunity.
Yet another
evidence of motive and
discrepancy Kubsch’s sto-
mother,
ry
damning
came from Beth’s
Diane
But most
Rasor.
Kubsch was
lies,
omissions,
inexplicable
She
testified
when she talked with
series
murders,
Kubsch
the afternoon of the
inconsistencies in what Kubsch told the
trial,
By
key respects
story
the time Kubsch testified at
al
he had first told the
course,
telephone
police
he knew about the
the mur-
records
his interview
night
and other evidence that contradicted in sever-
ders.
*9
mur-
the three
not have committed
could
on the witness
later testified
police
has been sentenced
for which he
ders
con-
statements —in
stand, and these
from Kubsch’s own
apart
And
death.
pieces of circumstan-
a few
junction with
impeached as
claims of
assuredly-
almost
what
tial evidence—are
innocence—
accounts of his move-
shifting
are
convicted.
got Kubseh
inter-
recorded
day
that
ments
—Amanda’s
6229136,at *1.
2013 WL
alibi
only support for Kubsch’s
view is the
Hearsay
Exculpatory
II. Exclusion of
defense.
Evidence
on
process
due
claim
bases his
Kubseh
was convicted
argues that he
Kubseh
410 U.S.
Mississippi,
Chambers
a violation of his
through
murders
the
(1973),
and its
L.Ed.2d 297
S.Ct.
present
a de-
right
process
due
federal
the
In Chambers
progeny.
him to
did not allow
The trial court
fense.
on
a murder conviction
reversed
evidence a wit-
as substantive
introduce
held that
appeal. The Court
direct
police
videotaped interview with
ness’s
trial
denied a fair
when
defendant was
days after
the murders.
four
detective
impeaching
him from
prevented
court
trial
Buck and her
Amanda
Nine-year-old
had called and excluded hear-
a witness he
together
interviewed
Monica were
mother
witness had
say
the same
evidence
lived across
The Bucks
by the detective.
acquaintances
confessed to three different
victims,
Rick
from two of
the street
the killer. Kubseh relies on
that he was
In the recorded
Milewski.
and Aaron
hearsay
of the Chambers anal-
portion
interview,
Amanda told
twenty-minute
statement
often-quoted
and its
ysis
Aar-
had seen Rick and
that she
detective
me-
hearsay
may
applied
rule
not be
“the
at their home when she
alive and well
on
justice.”
chanistically to defeat the ends of
daycare, be-
from school and
got home
The actual
at
ment did M4 impeach evidence law. statement to her trial lection under Indiana corded testimony, respond the State would with videotaped the Kubseh next offered the im- impeaching additional evidence trial testi- impeach to Amanda’s statement prosecutor The asserted that peachment. prior of a mony extrinsic evidence with interview, days three after the recorded Ind. R. Evid. statement. See inconsistent (Monica’s Lonnie Buck father and Aman- 613(b). noted, As Amanda testified grandfather) Sergeant called da’s had to talking not simply did remember she reported Amanda Reihl and that both and and did not remember whether police the been the day Monica had mistaken about Aaron neighbor her friend and she saw they recalled and that had described the p.m. day and the of 3:30 3:45 between day him not the of the murders but murders. day had followed up the before. Monica the ob- The trial court sustained State’s saying a later with statement she im- jection admitting to the statement’ as Amanda had Aaron on not seen the “tes- evidence because Amanda peachment of day of the murders. At the time subject to positive to no fact that is tified trial, prepared 2005 State was call Tr. The Indiana impeachment.” 3120. Buck Reihl Sergeant both Monica agreed respect Supreme Court with impeach impeachment the proposed of testimony trial that she did not Amanda’s Amanda. happened what or whom she remember day of Kubseh saw on the the murders. explained Supreme The Indiana Court II, However, N.E.2d at Amanda finding its of harmless error: point at one “proba- also testified that she have testimony Amanda’s should been bly didn’t see” Aaron at home between impeached, testimony but other would p.m. day of the mur- 3:30 3:45 supported had she been im- hers Supreme Tr. 2985. Indiana ders. The therefore, peached, testimony her testimony proper- held that this not did contribute to the convic- subject impeachment likely and that ly State, Pavey 692, allowing trial court had erred not tion. See v. 764 N.E.2d II, (“An attempted impeachment. Kubseh (Ind.Ct.App.2002) error N.E.2d at 735. prejudicial admission of evidence is not if cumulative merely the evidence is The Indiana Court also record.”). other evidence in the however, held, the error was harm pas- In court- N.E.2d at before this less. Id. the debate in the trial 735. Just recording, reject- that if sage, dropped about the the State said the court a footnote recording recording admissible 4. The would also not be Amanda's interview would have any admissible 803(5), been under the law of Ameri- Federal Rule of which under Evidence also, e.g., jurisdiction. Perry, State v. can See substantially coun identical Indiana its App.3d 147 Ohio 768 N.E.2d terpart requirement and has the that the same (under (2002) recorded 1264-65 identical re- prior accuracy endorse the declarant rule, affirming collection exclusion of video See, Green, recording. e.g., States v. United recording eight-year-old interview Cir.2001); (7th United 258 F.3d who, years testifying when trial two child Schoenborn, 4 F.3d 1427-28 States later, did not the interview and remember did Cir.1993). fact, (7th neither Kubseh nor recording correctly testify that re- dissenting any colleague our has identified knowledge at the time flected her of events made). indicating federal or state decision “probably federal constitutional claim ing Kubsch’s didn’t see” Aaron on the after- under Chambers: noon of the inculpatory. murders was not It had essentially probative no availability testimony of this is also value for jury, so there would why
the reason
Kubsch’s claim that he
have been no
point
her,
in impeaching
was denied his federal constitutional
the exclusion
present
a defense fails.
her statement
for impeachment pur-
See
284, poses
Mississippi
Chambers v.
410 U.S.
could not have contributed to
*12
(1973)
302,
1038,
93 S.Ct.
right recognizing exception an to ap- of the distinct Chambers claim in footnote plication of evidence rules where evi- 7 is the scrutiny. focus of our In the trial trustworthy). dence found to be court, Kubsch had not asserted a distinct Id. at n. 7. 735 federal, constitutional claim under Cham- keep
Unless we in mind the difference bers. He argument made that federal between substantive im- evidence and his direct appeal, though, and the Indiana evidence, peachment may Supreme which be consid- Court elected to decide the issue not for ered the truth of the matter assert- on its merits rather than procedural find a only credibility ed but to evaluate the of default. Footnote 7 quite was sensible to evidence, passages other these terse find- the extent that recording being was ing may harmless error seem only impeach mistaken. offered to non-ineulpato- all, After if ry Amanda’s statement were ad- “probably didn’t see him” portion of prove missible substantive evidence to Amanda’s testimony. problem trial The is that what she said the interview was that that reasoning seems not to ac- true, then tually the mere fact that there was engaged argument with Kubsch’s contradictory some jus- evidence would not under the federal Constitution that (The tify proffered recording its exclusion. State’s should have been admitted as impeachment any did not include Again, admis- substantive evidence. the mere sion Amanda herself that she had been fact the State would have offered mistaken.) Conflicting contradictory evidence would pre- evidence would have simply present ordinary question an jury question, for a sented a not a basis for resolve, jury judge recog- excluding as the trial place. the evidence the first nized, though question see Tr. explore of We these issues further in Part D great importance because the statement the standard of our review of the state would, believed, if exonerate Kubsch. court’s decision. focus, however, When we as the trial B. Right The to Present a Defense
judge impeach- did on the limited role of evidence, ment finding harmless error exclusion Amanda’s record clearly sound as a matter of contrary state evi- ed statement was not to Indiana only law, thing dence law. The Amanda-said in evidence Indiana Supreme as the testimony subject her trial that was to Court decided. That conclusion does not impeachment “probably question, was that she resolve the federal constitutional though ques didn’t see” Aaron on the afternoon of the it informs our to that answer out, judge pointed murders. As the trial tion. In a series of decisions led Cham gave Mississippi “She no substantive evidence in this bers U.S. S.Ct. (1973), Supreme case whatsoever.” Tr. 3032. Amanda’s 35 L.Ed.2d narrow substantive statement that she held that accused in a crimi- Court has impeach him right and so was allowed a federal constitutional
nal case has accused and if The Su- actually a defense. Both the even he was adverse. to offer comply found, however, “must with established the state preme Court designed procedure and evidence rules of longer voucher rule was no realistic and reliability in both fairness unfairly assure applied limit Cham- had been and innocence.” guilt the ascertainment examination a critical witness who bers’ circum- S.Ct. 1038. In some Id. at 295-98, fact adverse. Id. however, stances, right the constitutional S.Ct. 1038. rules of precedence takes over to defend attempts impeach After his McDonald hearsay This can include the evidence. stymied, Chambers then offered the were rules, showed. as Chambers itself testimony of three friends to whom Mc- Chambers is closest testimony Donald had confessed. Their facts, understand the case on its so to about McDonald’s confessions exclud- hearsay, scope of this defend with *13 292-93, hearsay. 93 ed as Id. at S.Ct. that detail.
we consider
case
some'
jury
of
1038. The
convicted Chambers
the
murdering
was accused of
Leon Chambers
murder.5
disturbance,
officer in a chaotic
police
a
appeal,
Supreme
direct
On
the
Court
riot,
try-
essentially
police
a small
were
based on the combination of
reversed
the
person. Another
ing to arrest another
barring impeachment
voucher
rule’s
of
to
man
McDonald had confessed
named
of the
McDonald
the exclusion
hear-
admitted re-
the murder: “McDonald had
302-03,
say confessions.
Id. at
93 S.Ct.
sepa-
for the murder on four
sponsibility
The Court
1038.
noted
declarations
occasions,
gave
he
rate
once when
against
long
interest have
been treated as
to
counsel and
sworn statement
Chambers’
sufficiently
excepted
reliable to be
prior
times
that occasion in
three other
298-99,
against hearsay.
at
at
conversations with friends.” Id.
rules
Id.
93
private
289,
1038.
was arrest-
1038. The
found that the
93 S.Ct.
McDonald
S.Ct.
ex-
counsel,
confessing
persuasive
ed after
to Chambers’
cluded confessions “bore
assur-
repudiated
was released
but he
when
brought
ances of trustworthiness”
at
preliminary
that confession
his own
them “well within the
rationale
basic
of
287-88,
at
hearing.
Id.
In the
line of
grant
Chambers
tional standard to
habeas relief in
strong
Court has
competing
E.g.,
Thompson,
balanced
inter-
cases.
Harris v.
(7th
if it had
Cir.2012);
recorded statement
v. Amanda’s
Sussman
One
The State thus
arbitrary
it restricts the
may
is where
be
hearsay evi-
balance that excludes
genuine
prosecution.
not the
Several
defense but
no matter whom it benefits.
dence like this
empha
line have
in the Chambers
cases
the end of the matter. The
But that is not
“
principle: a state rule
‘parity’
this
sized
protect
line of cases can also
Chambers
testimony
presentation
evidentiary
that restricts
from a restrictive
rule
accused
prosecution
will
the defense but not
purposes.
for
to its
disproportionate
Harris,
arbitrary.”
be deemed
generally
reliability.
question
That leads us to the
Amar,
Akhil
citing
at
Reed
698 F.3d
Reliability
Principles, 84
Amendment First
Sixth
(1996).
example,
For
L.J.
Geo.
Reliability is the core of the hear
v. Texas struck down state
Washington
say
many exceptions.
rule and its
See
testify
allowing alleged accomplices
rule
Evidence,
VIII,
Rules of
Article
Federal
forbidding
each other but
them
against
(1972).
Advisory Committee Notes
Our
testifying
each other. 388 U.S.
system relies first and fore
adversarial
Georgia
struck
tance of the declarant
after the
Rick Milewski on the afternoon of the
Second,
murder.
each statement was cor-
day,
murders or on another
quite
differ-
Third,
roborated
other evidence.
ent.
against
statements were
the declarant’s
Fourth,
own interest.
the declarant was Weighing
reliability,
in favor of
the in-
available at
trial
recorded,
cross-examination.
terview was
so
is no
there
doubt
300-01,
Id.
later
Chambers,
essentially
un-
Chambers,
Amanda was
U.S. at 293 n.
She
Furthermore,
the
for cross-examination.
took
in Green
available
5.Ct.
trial
that she
corroborating evi-
stand at
but testified
did
the
described the
by
being
remember
interviewed
the
“ample,” and of course
not
there as
dence
“A
or what she said to them.
de-
police
man’s confes-
had treated the other
state
sufficiently
unavailable
a
clarant is considered to be
as
firing the fatal shots as
sion
if
...
testifies to not
him to death.
the declarant
it to
witness
to use
sentence
reliable
matter.” Ind. R.
remembering
subject
In the
system
adversarial
of Anglo-
law,
American
we put great
trust
in the
D. and Their
Standards
Review
power of cross-examination to test both
Application
honesty
accuracy
and the
of testimony.
virtually
It is
an article of faith that cross-
To win a federal writ of habeas corpus,
examination
“greatest
legal
is the
engine Kubsch must show that he is in
custody
ever
discovery
invented for the
of truth.”
violation of the Constitution or laws or
Green,
149, 158,
399 U.S.
90 treaties of the United States.
28 U.S.C.
California
(1970),
2254(a).
§
S.Ct.
tioner
show
Woodall, 572
also
the Court decisions. White v.
must
show
petitioner
The
1702,
-,
1697,
of
“re- U.S.
134 S.Ct.
188
adjudication
the claim
state court
(2014),
to,
quoting
L.Ed.2d
Howes v.
contrary
698
in a decision
was
sulted
Fields,
U.S.-,
of,
565
132 S.Ct.
application
an unreasonable
or involved
(2012).
law,
L.Ed.2d 17
Federal
as deter-
182
clearly established
by the
Court of the United
Supreme
mined
just
again
To note
the most obvious
2254(d)(1),
States,”
§
“result-
28 U.S.C.
or
this case and Cham
differences between
an
in a
that was
on
ed
decision
based
bers,
not
her statement
Amanda did
make
the facts
unreasonable determination of
spontaneously
acquaintance,
to a close
her
presented
in the State
light of
evidence
interest,
against
statement was not
her
2254(d)(2).
§
proceeding.”
court
28 U.S.C.
corroborated,
not
and she
statement was
Chambers,
Kubsch’s claim under
our
On
subject
was not
to cross-examination about
analysis
legal
is on the state court’s
focus
Any
the statement.
of those distinctions
(d)(1),
subsection
not factual find-
under
enough
would be
to demonstrate that the
(d)(2).
under
ings
confront
Supreme
Indiana
Court did not
materially
indistinguishable
“facts
are
that the
agree with the district court
We
Supreme
precedent”
from relevant
Court
Supreme
adjudicated on the
Indiana
Court
opposite
and arrive at
result. See
federal
merits Kubsch’s
constitutional
362, 405,
Taylor,
529
Williams
U.S.
120
under
7 of the
claim
Chambers. Footnote
1495, 146
(2000).
L.Ed.2d
S.Ct.
clear,
opinion
state court’s
made that much
II,
7,n.
so
see Kubsch
was, 2254(d)(1), § also in the terms of an to” Law? “Contrary Federal clearly application” “unreasonable of es by tablished federal law as determined Indiana prong, On the first States, Supreme poses Court of the United adjudication Supreme Court’s question. a more difficult The state “contrary claim to ... Chambers rejection court’s of the claim Chambers law, clearly Federal deter established at best incomplete wrong and at worst by the Court Supreme mined United unreasonably poses so. That metho Because no cases States.” dological question on which law federal specific question presented “confront ‘the explore methodologi not settled. We case,’ by this the state court’s decision question ultimately cal below but conclude ‘contrary any holding not be to’ could claim under Kubsch’s Chambers fails Donald, from” that Court. Woods v. apply whether not we deferential review -, U.S. 135 S.Ct. under AEDPA. (2015) curiam) (summari- (per L.Ed.2d Chambers, ly reversing grant petition), holding habeas narrow based Smith, U.S.-, quoting Lopez v. 135 on the combination the restrictions 1, 4, (2014) (per impeachment multiple 190 L.Ed.2d cu- and the exclusion of S.Ct. riam). 2254(d), § clearly hearsay Under estab- reliable confessions a declarant cross-examination, only subject topped federal includes “the hold- off lished law
803
the “under the facts and circumstances of
exclusion of this evidence
respon-
violated
303,
qualification,
this case”
see 410
at
U.S.
dent’s federal constitutional rights”).
1038,
93 S.Ct.
means that state courts have
Thus, when habeas relief has been
interpreting
considerable latitude in
and granted
claim,
on a Chambers
the facts
applying Chambers. See
v.
Dunlap Hepp, were a much closer fit
Supreme
to the
(7th
739,
Cir.2006),
436 F.3d
744
quoting
precedents.
Cudjo
Ayers,
v.
698
Alvarado,
652,
Yarborough
664,
v.
541 U.S.
(9th Cir.2012),
752
F.3d
for example, the
2140,
(2004).
124 S.Ct.
state court interpreted We have Richter as instruct- AED- requires decision deference under ing argu- federal courts to consider what PA. supported” ments “could have a state court decision when the state court some “gave problem only
The reason necessarily reasons for an outcome without actually given by Supreme the Indiana displaying reasoning.” all of its Hanson v. availability contradictory Court—the (7th Beth, Cir.2013) 158, 163-64 F.3d testimony from Amanda’s mother and Ser- (affirming relief on denial of Chambers geant Reihl—is weakest reason evidence); claim based on exclusion see might good It was a support result. Dittmann, also Jardine v. 658 F.3d reason treat as harmless the exclusion (7th (“This Cir.2011) fill court must of the statement impeachment, recorded as any gaps court’s not The the state discussion but as substantive evidence. asking sup- what theories ‘could have conflicting impeach- mere or existence conclusion.”), basis, court’s ing ported’ is not a state evidence sufficient basis, Richter, rejecting quoting even reasonable for 562 U.S. 131 S.Ct. statement as substantive Con- 770.9 evidence. court, presented
8. we considered whether to claim was to the trial Stitts "look capital directly appeals go in Indiana through" supreme ruling to a state court's Supreme Court. case, the Indiana lower we state court’s decision. In this through” Supreme cannot the Indiana "look Butler, (7th Makiel v. F.3d 905-06 ruling Court’s Chambers claim. Cir.2015), presented a related distinct is- but stated ra- so. And argue The Indiana Court’s there is room to that where rejecting Kubsch’s claim can be provided tionale the state court has a rationale for decision, fairly incomplete. long described So as its the federal courts should focus 2254(d)(1) § obligation have an under we their attention on actually the reasons giv- fill or to gaps complete state court’s hypothesize en rather than a better set of Smith, reasoning, the result here is not an unrea- Wiggins reasons. See 539 U.S. 510, 528-29, application sonable federal constitutional 123 S.Ct. 156 L.Ed.2d law, (2003) and relief must be denied on this (holding state court’s rationale claim.10 unreasonable without considering other *21 possibilities); Frantz v. Hazey, 533 F.3d
3. De Novo Review 724, (9th Cir.2008) (en 737-38 & n. 15 banc) however, argue, (confining analysis There is room to to reasons actual- court, just ly given by the state court’s footnote 7 was not hypothesiz- state without wrong, rationales); v. incomplete unreasonably ing but Oswald Ber- alternative Makiel, reached, gave sue. the state court two rea- court not whether its decision was why reasoned.”) (brackets, citations, sons the exclusion of certain evidence well and in- petitioner’s right present did not violate the omitted); quotation ternal Higgins marks v. complete defense. One reason was flawed Cain, 255, (5th Cir.2013) (“In 720 F.3d 261 but the second was sound. The sound second considering whether the state court’s decision enough reason to call for AEDPA defer- application constituted an unreasonable of Here, contrast, by gave ence. the state court law, clearly established federal ‘a federal ha- only reject one reason to the constitutional 2254(d) beas court is authorized Section claim, and that reason is flawed. "decision,” only review a state court’s opinion explaining not the written that deci- approach 10. Most circuits endorse this ”), Puckett, quoting sion.’ Neal v. 286 F.3d requires allows and even federal courts to 230, (5th Cir.2002) (en banc); 246 Holder v. complete gaps or fill the in state rea- courts' Palmer, 328, (6th Cir.2009) 588 F.3d 341 soning support of results that are not un- (“The requires light Supreme given law such deference be prece- reasonable in of Court Amand, cases, one, dent. See Foxworth v. St. 570 F.3d even in such as this where the 414, (1st Cir.2009) review, (“on 429 habeas reasoning state court’s flawed is or abbreviat- inquiry degree the ultimate is not ed.”); 825, Roper, Williams v. 695 F.3d 831 which the state court’s decision is or not is (8th Cir.2012) (“In reviewing whether the reasoned; smoothly inquiry the ultimate is state court's decision involved an unreason- reasonable”); whether the outcome is Rashad application clearly able of established federal Walsh, 27, (1st Cir.2002) v. 300 F.3d 45 law, legal we examine the ultimate conclusion (where by gaps federal courts were troubled court, merely reached the state- in state court’s rationale: "It is not our func- explaining ment of reasons the state court's tion, however, grade opinion a state court decision.”) (citation omitted); Williams v. examination.”); as if it were a law school Trammell, 1184, (10th 782 F.3d 1199-1200 Miller, 77, (2d Cir.2001) v. 255 F.3d 86 Cruz Cir.2015) ("uncertainty” regarding rationale ("deficient reasoning preclude will not AED- sparse for a state court decision “does not deference”); Sec’y Pennsylva- PA v. Collins of deference;” change our federal court still Corr., 528, (3d Dept nia 742 F.3d 548 of identify sup- must theories that could have Cir.2014) (while adjudication state court of decision); Comm’r, ported the Lee v. Alabama "admittedly claim Strickland consisted of cur- Corr., 1172, (11th Dep’t 726 F.3d 1210-14 statements, sory requires AEDPA that we de- Cir.2013) (applying AEDPA deference to in- arguments sup- termine what or theories complete opinion; state court state court ported supported, ... or could have the state by mentioning need not its all "show work” decision”) (citation quo- court’s arid internal claim); circumstances relevant to Batson but Polk, omitted); tation marks Robinson v. 438 724, Hazey, 350, see v. 533 F.3d 737-38 & (4th Cir.2006) ("In assessing F.3d Frantz 358 (9th Cir.2008) (en banc) (confining n. 15 eval- appli- the reasonableness of the state court’s law, therefore, application” prong uation of "unreasonable cation of federal the federal given). courts are to review the actual result that state reasons 806 Cir.2004) ap (7th “look-through” (applying Nunnemaker
trand,
483
F.3d
lower state
ordinarily
to evaluate and reverse
(“reasonableness
proach
of. a decision
denial
considering
findings supporting
court’s factual
without
cannot be assessed
2254(d)(2));
reasoning,” though
§
evidentiary hearing under
of the court’s
quality
Williams,
U.S.-,
...
not whether the
question
“ultimate
v.
Johnson
quality
grade
n.1,
a bad
gets
court
185 L.Ed.2d
state
n.
S.Ct.
... whether the decision
analysis
(2013)
but
ap
of its
(citing Nunnemaker
of federal
application
Schneiderman,
is an unreasonable
Hawthorne v.
proval);
law”).
Brady
explained
Cir.2012)
As we
(2d
(Calabresi,
192, 199-201
F.3d
Pfis-
court’s reason-
ter,
evaluating a state
when
un
J.,
practice
concurring) (arguing
cases,
in habeas
ing
rea
inventing hypothetical
der Richter
actually given
on the reasons
has focused
nei
promotes
court decision
sons for state
in the
engaging
courts without
by state
efficiency).
comity nor
ther
reasons
trying
to construct
exercise
ar-
Ginsburg’s
in Hittson
opinion
Justice
result.
supported the same
could have
hypothe-
practice
that the Richter
gued
Rompilla v.
citing
See 711 F.3d
rejections
for state court
sizing rationales
*22
2456,
374,
Beard,
125
162
545 U.S.
S.Ct.
limited to cases
claims should be
of federal
Smith,
(2005), Wiggins
v.
L.Ed.2d 360
rejec-
explained the
where no state court
2527,
510,
156 L.Ed.2d
123 S.Ct.
539 U.S.
tion,
court’s real
and that where the state
(2003).
toward
AEDPA deference
471
So
ascertained,
inquiry
can be
reasons
that reach defensible
court decisions
state
2254(d)(1)
§
“can and should be
under
reasons is
incomplete
for bad or
results
or theories
‘arguments
on the actual
based
point.
necessarily settled law at this
...
court’s deci-
supported
the state
[that]
under
methodology
This debate over
2128-29, quoting
135 S.Ct. at
sion.”
2254(d) may
ripening
§
for a resolution.
be
Richter,
102,
at
patory interview of a witness who was say exceptions have evolved from situa effect not available for cross-examination providing tions circumstantial guaranties account signifi- whose does not have of trustworthiness that seem be suffi cant corroboration points. on the critical scrutiny cient substitutes for that direct id., § a trial. See
A vast literature attempts to ex plain complex edifice of American In the of case Amanda’s recorded state- hearsay helpful ment, law. A and authoritative the third dangers and fourth seem explanation Advisory came from the recording Com minimal. The eliminates the Evidence, mittee on the Federal Rules of risk that Amanda’s statement would be hearsay rule he state- relayed inaccurately, ap- she seeks witness had.no re- accura- difficulty describing (ensuring what she ments are recorded parent transmission), nine-year-old Amanda in cy The about recent events membered. (fresh detailed, also a wit- memory), the interview was disinterested in the witness’s ness, know tell witnesses, old she should enough and from disinterested at least reason to apparent the truth with no would be critical to the where evidence intentionally. police deceive the inexpensive recording With tech- defense. available, widely however, nology we can remain, however, dangers The first two expect that such evidence will often be protections meaningful no under theory thus ex- available. Kubsch’s would is no simply these There circumstances. dramatically availability, at least pand way directly, cross-examination test accused, hearsay to the evidence that otherwise, nine- accuracy or of the subjected cannot be cross- meaningful year-old past of the Amanda’s memories Considering examination. the Chambers days, possibility several to test novo, issue de we Kubsch is seek- believe misremembering she was what and whom ing significant expan- and unwarranted days. she had seen where and on which doctrine, existing sion of unmoored from her not test- accuracy memory critical assurances corroboration challenged ed or even the recorded during cross-examination provided in Cham- itself, importance interview nor was itself. bers being accurate about time and date brought attention interview. to her in the hearsay do We not doubt rules corroborating Nor is there other evidence in fact sometimes exclude evidence that is date the recorded account to the critical They good accurate. also exclude deal of time. evidence is unreliable. Those rules experience pre- have evolved based on considerations, light of these the use vent of inaccurate and unreliable arbitrary disproportionate to en- hearsay in recognize trials. We also must force the rules of evidence to exclude the risk error our human and fallible Amanda’s recorded statement as substan- justice system, in a especially criminal Accepting theory, tive evidence. Kubsch’s *24 death-penalty That is why case. Cham- hand, good on the would deal upset other was, though bers was as it decided developed of the rules of evidence over in prison sentence there had been life rath- generations to find the balance so case, than exceptional er death. fairly trials can be decided and on the familiar rules of evidence worked arbi- prosecu- basis reliable evidence. As the trarily to of inno- exclude reliable evidence here, tor said in trial could court we cence. just juries videotaped, show a series ex interviews,
parte witness
is not
but
enough,
The risk of
error is
serious
system.
we
in
legal
how
do trials
our
however,
gates
hearsay
to all
open
There is
indication in
narrow
no
type, especially
of this
where it is not .
sweeping
opinion
Chambers
such a
corroborated as it was
Chambers and
result was intended then. Nor do
subject meaningful
where it is not
cross-
later
in the Cham-
Court’s
cases
of er-
examination. The unavoidable risk
bers line
such a
result.
sweeping
endorse
may
strong argument against
ror
offer a
only
penalty
policy,
Kubsch
that he
a nar-
a matter of
but
argues
seeks
the death
See,
comparable
row
to the narrow that is not a
available to us.
exception,
choice
Gross,
U.S.-,
Glossip
to limit
e.g.,
(cid:127)decision
Chambers. He tries
(2015) (all
S.Ct.
merely a repackaging of the claim that the III. Assistance Counsel recording should have been admitted as Ineffective
Amanda’s Statement
evidence. He also argued and tried to
offer evidence that if his trial lawyers had
approaches
Kubsch
Amanda’s statement
taken some additional steps, the interview
from a
angle by
different
arguing that
would have been admitted into evidence
even if his stand-alone claim under Cham-
reasonably likely
change
fails,
bers
his trial
provided
counsel
inef-
jury’s verdict. The state
judi
court’s res
fective
failing
assistance
to do a better
holding
cata
did not engage that evidence
job
trying
to have the recording admit-
argument.
ted into evidence. The Indiana Supreme
novo,
Even if we review this claim de
rejected
claim appeal
this
however, Kubsch has not shown that his
relief,
the denial of post-conviction
finding
trial
lawyers were constitutionally defi-
that it
was barred
the doctrine of res
cient.
It is not as though
lawyers
the trial
III,
judicata. Kubsch
N.E.2d
overlooked the issue. Several months be-
n. 2.
trial,
fore the second
Amanda testified in a
Under
the controlling standard
deposition where her mother was also
from Strickland v. Washington, 466 U.S.
2983-84;
present. See Tr.
doWe
668, 687,
104 S.Ct.
debating the of the statement colleague the trial dissenting Our finds court, ar- prosecutor before trial lawyers ways: deficient some additional against admitting gued the statement “full not if having asked Amanda her state- knowing girl well that the little was mis- accurate, ments in if the interview were testify taken” that her would mother actually girl she was in the shown to that Tr. The effect. 3015-16. trial video, if police would have she told judge immediately responded: jury truth; “The having and for failed to chal- judges jury girl if judges that. The is Lonnie account lenge Buck’s of the correc- Tr. right.” date, the mother tion on the to call Monica to corrobo- judge hearsay interview, kept recorded rate Amanda’s answers statement out as substantive evidence be- de- track down bank records for Monica’s qualify pursue cause of her cor- posit paycheck, did recorded *26 recollection, kept impeach- trip. and he it out as roboration the school field about again, nothing ment because Amanda had said Post at 828-29. But there is no impeaching. support speculation worth factual to such record 806, 835, fornia, 2525, what these efforts have about would U.S. S.Ct. (1975). lawyers L.Ed.2d 562 post-conviction Kubsch’s shown. question lawyers his on the did not trial Supreme The Indiana Court con matters, nor did stand about these
witness rejected sidered the claim. and Kubsch down and offer the evidence they track II, at 866 N.E.2d 735-38. That decision says might helped. dissent have that the application was not an unreasonable of fed is not Kubsch’s suggest This eral law under the circumstances of this' lawyers post-conviction were themselves 2254(d)(1). § case. U.S.C. See 28 Kubsch ' anything- highly competent other than and waiving made clear that he was counsel Kubsch is now diligent. being represented present because he did not want to evi his sixth team capable at least of sentencing phase dence at the of the trial. capital lawyers. defense See experienced simplified substantially That decision the (qualifications P. 24 and com- Ind. R.Crim. himself, challenge representing of so for pensation appellate trial and counsel colloquy trial judge’s was sufficient under cases). law- capital post-conviction the circumstances. Neither Faretta nor team) (the investigated fifth yers no doubt any other Court decision re But thoroughly possible. this claim as quired judge discourage Kubsch evi- when the time came to offer actual making his decision to waive counsel. investiga- dence about the results of the
tion, they
A. The
simply did not
evidence
Constitutional Standard
says
dissent
been
should have
first address the
We
constitu
grant
within
“easily
reach.” We cannot
turning
tional
before
appli
standard
to its
by filling in the
our own
gaps
relief
cation in
case. Faretta
this
established
speculation
investigation
further
“a defendant
a state criminal trial
sufficiently helpful
would have been
right
has a
proceed
constitutional
with
Kubsch’s defense.
out
he voluntarily
counsel when
and intelli
807,
do so.” 422
gently elects to
U.S. at
Penalty
Counsel
IV. Waiver
of
Though
may
S.Ct.
“he
2525.
conduct his
Phase
ultimately
own defense
to his own detri
ment,
principal
We turn now to Kubsch’s third
his choice must be honored out
appeal.
phase
At
‘that
penalty
respect
claim on
for
individual which is the
trial,
834,
to coun-
law.’-”
right
Kubsch waived his
lifeblood of the
Id. at
95 S.Ct.
Allen,
represented
chose not
v.
quoting
sel and
He
Illinois
397 U.S.
himself.
337, 350-351,
present any mitigating
evidence. He
90 S.Ct.
“The of whether vations determination intelligently intelligent waiver of must have waive counsel an has been there case, case, depend, upon particu in each the in each will depend, must right to counsel surrounding and circum lar facts and circumstances facts upon particular the case.”) (citation case, quotation and internal including that surrounding that stances omitted); States v. and conduct marks see also United background, experience, the (7th Johnson, 706, 464, at 860 F.2d 733 Cir. Moya-Gomez, 304 U.S. of the accused.” 1988) (“Although the need for a relevant “case- we stress 1019. Two other 58 S.Ct. a matter of easily- thorough inquiry and formal as complex factors” are “the specific deterring and as means of charge” prudence nature of and “the a grasped the Tovar, claims shall appeal, v. unfounded we not proceeding.” of the Iowa stage 77, 88, 1379, the district court where the record 124 S.Ct. 158 reverse 541 U.S. (2004). a that the defen wheth as whole demonstrates 209 To determine L.Ed.2d knowingly intelligently dant and waived knowingly and intelli er a defendant has counsel.”); counsel, right United States v. waived the “a gently (7th Cir.2003) 579, Egwaoje, 335 F.3d 585 long and as thor judge investigate must as (reaffirming holding Moya-Go this as the circumstances of the oughly case mez). formality of The extent and the v. him demand.” Von Moltke Gil before relevant, colloquy waiver but it is the 316, are lies, 708, 723-24, 332 U.S. 68 S.Ct. itself, colloquy, not waiver the waiver (1948). L.Ed. 309 focus proper inquiry. is the of the Supreme Both the Indiana Court This constitutional standard does circuit factors in and this consider four the impose separate duty discourage not a a “(1) inquiry: the extent of waiver the If representing defendant himself. a inquiry into the defendant’s deci court’s already defendant is “aware (2) sion, record other evidence dangers disadvantages self-repre and defendant under establishes whether the sentation,” then trial court must edu disadvantages dangers stood him so that he of those cate is aware risks (3) background self-representation, Faretta, at when he decides. U.S. defendant, (4) experience of wants S.Ct. When a defendant context of the defendant’s decision to ” the challenges representing take on II, proceed pro se. Kubsch 866 N.E.2d at trial, jury at including dealing himself State, 736, quoting Poynter v. 749 N.E.2d selection, evidence, presentation of (Ind.2001), quoting 1127-28 turn instructions, may jury judge and usual Hoskins, States 243 F.3d United try to ly discourage option will a Cir.2001). (7th forcing means of to think defendant flexible, The constitutional standard carefully about unfamiliar risks. application adapted to and its must be Supreme pre- has not de case. We find no Court however, cision, judge a list of that must be to dis requiring scribed admonitions self-representation given courage to all defendants who want waive all circum Tovar, believes, See If a as the trial judge counsel. 541 U.S. stances. here, mak (reversing finding judge state court’s did that the defendant is S.Ct. waiver, knowing “In then prescribing ing intelligent that waiver invalid: (cid:127) holding commit error scripted admonitions and them she would constitutional every strongly. too necessary guilty plea discouraging instance ... decision high clearly our the constitu- the Iowa court overlooked obser- Faretta established *28 right self-representation. tional “That they but longer speak could no for him in if court. right judges depict is not honored must self-representation in such unremittingly Kubsch represented himself at the sen- scary any terms that person reasonable tencing phase of his because trial he did Oreye,
would refuse.” United States v. present not want to mitigating evidence. (7th Cir.2001), quoting 268 F.3d Kubsch was advised the court and Hill, United States v. 252 F.3d 928-29 counsel that if his represented counsel had (7th Cir.2001). him in sentencing phase, his counsel would have made the final decision about
When a defendant possibility raises the which witnesses to call. attorneys His himself, representing the trial court is planned evidence, to offer mitigating and placed Scylla “between the trammeling they named the witnesses would have the defendant’s right constitutional called provided and Kubsch a written sum- present Charybdis his own defense and the mary of that evidence. The court asked shirking duty its ‘constitutional to en Kubsch whether he any wanted of those sure that only represents defendant witnesses to be called. Kubsch confirmed himself with full awareness that the exer that he did not. cise of that right fraught with dan ” gers.’ Sandles, United States v. 23 F.3d The court then told Kubsch what (7th Cir.1994) (citation 1121, 1127 omitted), expect in the sentencing phase of the trial if, quoting Moya-Gomez, as both planned, 860 F.2d at sides he and the State Appellate presented courts keep have tried to no new evidence. Each side permissible would ground jury, middle address the between these and the court opposing broad, would instruct fairly jury errors allowing applicable trial law, judges sentencing including leeway aggra- reasonable relevant adapt the in vating mitigating and quiry to the factors. The circumstances of court the case told Kubsch that attorney as his own requiring script without or checklist. right would have the to address the judges jury Trial seeking way this middle are directly. constitutionally not bound to discourage
every defendant from representing himself Finally, the court considered the stan- no matter the facts and circumstances of dard advice warnings given to defen- the case. deciding dants whether to represent them- selves. The court nearly noted that all the
B. Kubsch’s Waiver Counsel warnings advice and concern the chal- trial, lenges of selecting jurors such as With this constitutional standard in evidence, presenting which can be difficult mind, we turn to the facts of Kubsch’s legal without training experience. right waiver of his to counsel for the sen- The pointed court out that if the sentenc- tencing phase of his trial. The attorneys ing phase did not include additional evi- represented who Kubsch at guilt phase dence, the most difficult a pro obstacles for trial were a veteran quali- team who se present. defendant would not be fied as a capital defense team under court then reiterated that had Kubsch Indiana Criminal Rule of Procedure jury to make a statement to the which sets minimum qualifications for lead attorneys allowed his to withdraw their capital co-counsel in During cases. appearances. the sentencing phase they, served as legal Kubsch’s appoint- advisors court Kubsch argues now that his waiver was advice, ment. Kubsch could ask them for knowing and intelligent because the record, in this I want to state for the insufficient and be- colloquy court’s attempt case, to discour- judge did not Mr. cause the Court observed The Indiana his choice. age trial, tri- throughout during Kubsch *29 in de- arguments these considered Court constantly much was able to pretty al he of in of the circumstances light tail and to attorneys, was able confer with his case, for Kubsch’s reasons particularly this that investigator his factual confer with stage to himself the wanting represent case, that witnesses in this interviewed only he proceeding, where would of the case, in this the Court he testified jury the make a statement to about testimony to his be coherent found II, Kubsch 866 appropriate penalty. case, and to the facts of this relevant at N.E.2d 735-38. has no to doubt the Court reason Court noted that Supreme The Indiana represent Mr. competency Kubsch’s to the need” for Kubsch himself “eliminated in this matter. himself giv- all of standard advisements almost II, 3339-40, quoted Tr. Kubsch 866 deciding rep- whether to en to defendants by confirming that he resent themselves quoted The court N.E.2d at 737. state present not wish evidence at the did help this that Kubsch observation show trial. sentencing phase of his Id. at 736. did in capable understanding, of colloquy Accordingly, the waiver was “suf- understand, fact mak- the decision he was apprise ficient to the defendant of the dan- ing. out “at the time pointed It also facing particular he is in the matter gers himself, he had represent chose to Kubsch hand.” All that remained at See id. already trials participated murder two matter, trial, as a a clos- practical II, penalty phase.” and one Kubsch 866 ing argument penal- on whether death words, “In other he obvi-' N.E.2d at 738. ty imposed. should be ously his own of his experience knew from high as they The stakes were as come witnesses, present evi- right to call other trial, highest a but were for the man dence, propose mitigating factors.” The speak who wanted to himself. Id. right self-representation Faretta is upon autonomy for the respect founded Finally, Indiana the defendant: Kubsch’s to waive viewed decision right personal. The to defend is The it strate knowing counsel as because was defendant, lawyer his and not gic, prevent intended to his counsel State, personal will bear conse- calling phase in the penalty witnesses It quences of conviction. is the de- a Id., Todd, citing trial. United States fendant, therefore, who must free be (7th Cir.2005). 424 “Choos F.3d personally par- to decide whether in his ing to waive counsel because one does not ticular case is to his advantage. counsel strategy not the agree perhaps with trial is may
And he conduct own although choice, choice, good best or even but detriment, ultimately defense to his own can be choice.” N.E.2d at a rational his choice must be honored out of “that 738. respect for is the the individual which lifeblood of the law.” Blume, Citing Killing H. the Will- John ” “Volunteers, at 2525. 422 U.S. 95 S.Ct. ing: Competen- Suicide and (2005), cy, Mich. L.Rev. Kubsch state noted trial court also not so argues that his decision was now compe- judge’s observation about Kubsch’s suicidal, strategic tence at the this trial: much as calculated end of three-week ” bring discourage about his own execution indicat- Faretta him from waiv- ing pre-existing ing “a mental illness.” That his right to counsel. That is not what way indeed one to understand Kubsch’s is Faretta said or means. Faretta held way to Another understand behavior. a defendant has a constitutional however, behavior, is to take Kubsch’s at waive long counsel as the waiver is value at the sentencing face his words knowing, voluntary, and intelligent. The both phase both trials. At he articulat- core respect of Faretta is for the defen- principled opposition arguing ed if autonomy dant’s even makes a foolish could any mitigating outweigh evidence 2525; decision. 422 at U.S. S.Ct. of the aggravating circumstances crimes a Davis, see also 285 F.3d There *30 jury had convicted him of committing. no requirement discourage to the defen- protect Faretta was decided to precisely noted, dant. As have warned we that ex- principled ap- such Kubsch now decisions. cessive discouragement, even for a defen- regrets his to parently proceed decision case, dant who wishes to handle the entire se. That mean pro does not his decision' Hill, can violate See Faretta. F.3d any less principled was when made it or (“A defendant bullied or frightened it of product that was the mental illness. into acquiescing lawyer in a that he would rather do without would be a much His strategy can also be understood in . position say better that the choice was quite beg- sensible terms. Rather than not knowingly intelligently.”). made ging mercy jury just from that had the convicted him of brutal three murders problem The basic with argu- Kubsch’s any apparent mitigating without circum- ment specific is that most advice stances, jury, Kubsch told “I wouldn’t usually given to was defendants unneces- try your intelligence by even dare to insult sary for him. planned present He no wasting your mitiga- time presenting mitigating planned only evidence tion.” Tr. 3372. He instead asserted sev- make a jury. brief statement to the Cf. eral times that ap- he is innocent. His Center, Federal Judicial Benchbook for can proach be understood as a reminder ed.) (6th § Judges U.S. District Court 1.02 jurors that the possi- should consider the (warnings procedural focus on and eviden- bility that they might have made a mis- tiary trial). challenges and during before take, so that weigh residual doubt should That against penalty. approach death Kubsch responds this view “shifts entirely is consistent his defense at responsibility the trial court to the trial, even though neither was successful. defendant, making responsi- the defendant The state courts did act unreasonably not ble to inform the court how he wished to viewing strategic the waiver as and proceed, warning to determine the level of Davis, knowing. See United States 285 the court him.” give must The Indiana Cir.2002) (defendant (5th F.3d 384-85 Supreme Court did not make that mistake. represent chose to at sentencing himself Kubsch’s counsel then Kubsch himself phase capital strategic trial for similar explained plans judge. his to the trial The reason; appellate writ of man- court issued judge required question was not barring appointment damus district court’s strategy, require Kubsch’s and he did not independent present mitigat- counsel to provide Kubsch to information. Kubsch objection). evidence ing over defendant’s judge it. trial adapted volunteered approach inquiry argues strenuously
Kubsch
to the waiver
accord-
most
judge
ingly.
trial
under
duty
spirit
had a
“the
wrong
is
with circumstantial
argument,
nothing
this
Kubsch
there
In a variation on
evidence,
any
confi-
colloquy
impossible
waiver
was
have
argues
also
by jury
trial
in a
a
At one
dence
verdict rendered
actually misleading.
point,
view,
only
story.
my
said,
way
saying, your
part
I’m
of the
a
heard
judge
“In
a result that
complicat-
not
the state courts have reached
would
be as
representation
with,
trial
and an unreasonable
handling the whole
is inconsistent
you
as if
were
ed
of,
that?”
the United States
you
application
Do
understand
by yourself.
context,
Mississip-
decision in Chambers v.
this statement Court’s
Tr. 3342. Taken
1038, L.Ed.2d
misleading
pi
at all.
It was true.
410 U.S.
93 S.Ct.
(1973).
far
evidence
jury
Had
contested
Making
statement
excep-
him-
representing
than
been admitted under
Chambers
simpler for Kubsch
evidence,
to the
rules
guilt phase
in the
his trial would tion
normal
self
Tovar,
jury may
acquit-
at 88
instructed
have
properly
been.
541 U.S.
have
See
may
convicted
the “information a defen-
ted Kubsch.
It also
(explaining that
I
courts
possess
argue
must
in order to make an
him:
do not
the state
dant
depends
wrongly
on “the
the evidence as sufficient
intelligent”
part
waiver
viewed
proceeding”).
ques-
for conviction. But that is not the
stage of
*31
question
tion before
The
is whether
us.
sum,
the federal
re-
Constitution
case
present
Kubsch was able to
his entire
judge
the trial
to determine wheth-
quired
jury
obtain
Be-
and
a reliable
verdict.
the last
er Kubsch’s waiver of counsel for
deprived
cause I believe that he was
of this
voluntary,
knowing,
of his trial was
phase
protection, I would
the writ
grant
essential
intelligent.
Supreme
and
Indiana
oppor-
give
State of Indiana a new
clearly
apply
did not
estab-
Court
tunity
try
him.
by holding
unreasonably
lished federal law
light
was
in
that Kubsch’s waiver
valid
I
facts and
particular
“the
circumstances
ease,
surrounding
including
the back-
required
by
As
Antiterrorism
experience, and
of the
ground,
Penalty Act,
conduct
rely
Effective Death
I
on
accused,”
Johnson,
see
at
58
U.S.
facts used
stage
proceed-
trial,
S.Ct.
and the
of the
after
convic-
Indiana
Kubsch’s second
Hoskins,
State,
v.
ing,
tion,
see
States
United
sentencing. See Kubsch
II).
(Ind.2007) (Kubsch
410.
F.3d at
N.E.2d
opinion
That
summarized
facts that
Accordingly,
district
we AFFIRM the
appeals.
developed
had been
earlier
judgment denying
court’s
relief.
(Ind.
State,
See Kubsch v.
The fateful September meantime, In the Kubsch drove back to reference, For ease of provide I a timeline Valley Prism house after punching out of the events in A Appendix to this job dissent. from his at 11:13 Honold, a.m. Erin Here I happened summarize what day neighbor, saw him and his car in the drive- and the pins evidence that down where the way noon, between 11:30 a.m. and around key actors were I rely located. on the the same time when Beth speaking evidence that was admitted at Kubsch’s with the credit Telephone counselor. rec- *32 second trial. ords from the house indicate that a call was made at 11:37 a.m. to American Gen- That morning, Wayne both and Beth Finance; Putz, eral Kevin an employee of up early. By a.m., Kubsch were 6:00 testi- company, the spoke testified that he mony from Beth’s coworker Archie Fobear morning. Kubsch that Between 12:09 and established that Beth already had left her p.m., 12:11 Kubsch made three more calls home on Valley Prism Drive in Mishawaka (im- using cellphone, his one to the house just and starting was to work at United there) plying that he was no longer and Elkhart, Indiana, Musical Instruments two to Rick Milewski. apparently He in- approximately away. miles Cellular terrupted Rick while Rick speaking was telephone records indicated that Kubsch with his brother Dave about an upcoming made a call at that time from the sector hunting trip. Dave testified that Rick said just adjacent to covering the one the home. that Kubsch was calling to discuss moving driving He was place employment his refrigerator Valley at the Prism house. Skyline at Corporation, Elkhart; also in he punched in at 6:50 a.m. Cell records paged show Beth again Kubsch at p.m.; 12:16 that telephone Kubsch made a call at 9:11 cell records p.m., indicate that at 12:18 he a.m. somewhere workplace, near his and called the house for 31 seconds from the that he Osceola, made another call at vicinity 10:45 a.m. a town between Misha- Skyline’s break room. The latter call waka and Elkhart. Kubsch returned to home, was to Beth, presumably to who Skyline, although he punch did not back in. a.m., had finished her shift at 10:00 re- He made phone two calls from the break home, turned and him paged room, twice from one at p.m. 12:40 and the other at home around 10:30 a.m. calls, 1:17 p.m. Between those Rick called Jonathan; said hello to picked he also punched up out of p.m. Kubsch at 12:46
Beth 5:30 Wayne around or day, Temple at 1:53 his friend for again, this time work p.m. at the local Kmart store. He later, minute called the house 5:45 A he p.m. then back to with Jona- on the for 46 headed Osceola was line from Elkhart and than, for ten minutes at the home stopping cell- The next call from Kubsch’s seconds. Hardy, the mother his it was from a Constance p.m.; came at 2:51 phone p.m., friend At 5:56 he made call theory The Brad. near the house. state’s sector region to the Prism from the cellular close these two calls bracket last Valley house. he committed murders— time when p.m. 1:53 2:51 between time, however, Anthony By had this with this theo- problems There are some come the bodies of home discovered it all encompass if is meant at ry, happened at least Rick and Aaron. This 5:30 murders, help, there is no evi- immediately three because summoned p.m. He early up that Aaron left school by dence so time Kubsch showed day. contrary, To the witnesses testified p.m., police house at 6:45 were there and (Beth’s outside waiting Aaron was Lincoln taped off as a crime scene. discovered.) Elementary Bend body yet School South had not been The station, him picked up Rick there between 2:20 police took Kubsch inter- (The him, is now called Lincoln p.m. school 2:35 viewed and then released him. Center; Primary its website indicates p.m., they Around 9:00 discovered Beth’s day 2:20 .school runs from 8:15 a.m. to body They concealed the basement. Primary Center, https:// p.m. brought See back in a second Kubsch inter- Lincoln www.edline.net/pages/LincolnJPrimary_ surprised view. not appear He did (last 2015).) Aug. visited Center learn Beth’s Asked several death. event, so, any p.m. 3:15 Kubsch times the officers to tell them what mother, Beth’s numerous calls to placed happened, Kubsch chose instead invoke Rasor; eventually Diane connected speak attorney. not to an without try. records the 11th Cellular indicate police did not him for mur- arrest heading point, north at that that he was immediately. They der did so three Michigan later, border. person toward when a named months Tasha- *33 na Penn Norman told them that she and p.m. 4:42 4:47 Between and Indiana her boyfriend person saying overheard a time, picked up calls Kubsch made some boy,” that and “hurt[ ] he had little she Schoolcraft, Michigan, the cell tower in He speaker. identified Kubsch as the was is about 11 miles north of Three which 1998, arrested on December and Rivers, Michigan, Kubsch’s where son Jon- charged all with murders. three (For lived with his mother. the athan consistency, I use Indiana time sake account; fact, though in
throughout this Michigan of Indiana and most of are most A zone, in the Eastern time Indiana in 1998 tried in this yet Daylight Savings Kubsch was twice case. adopted had not At Time; place The trial took in 2000. its thus Indiana on Eastern first was Stan- conclusion, him and jury the convicted rec- September Time while most dard and the Michigan, including penalty, Three and ommended the death Rivers Schoolcraft, accordingly. court him was hour ahead on Eastern sentenced Su- an Time.) reversed that p.m., preme of Indiana Daylight Around 5:00 Kubsch dence, I, I everyone and ordered a new would judgment agree Kubsch with that The second trial trial. 784 N.E.2d 926. Indeed, Kubsch’s challenge fails. it would again, Once the place took March 2005. be hard to find fault with the extensive and recom- jury guilty found Kubsch my discussion have colleagues furnished. again, and once penalty, mended the death But that is not It question. the is instead the accepted the trial court recommenda- package whether the of evidence that was imposed tion and sentence. presented jury complete, to the if was II, Kubsch Court of Indiana not, whether the excluded evidence was at 740. affirmed. 866 N.E.2d Kubsch important enough reliable have unsuccessfully sought post-conviction then made a difference. courts, from see Kubsch relief the state III, turning 934 N.E.2d at before The critical kept evidence that was from federal court his current habeas jury testimony was videotaped by a § corpus petition, 2254. see 28 U.S.C. Buck, girl (“Mandy”) named Amanda case, my colleagues The State’s as readi- “who, defense, according to the would have admit, ly pieces was built from various pm testified she saw Aaron after 3:30 It pointed circumstantial evidence. II, day on the murders.” Kubsch problems Kubsch’s financial and the new Mandy, N.E.2d at who was nine Beth policy plausible life insurance as time, years old at interviewed It attempted motives for the murders. murders, immediately after the on Tues- through trace his movements use of the day, September 1998. Because of the telephone cellular records the testimo- importance said, of what she I have includ- ny people of the who interacted with Kubsch, Beth, Rick, Aaron, a full transcript ed interview Anthony throughout day. It found a fiber on Appendix B to this dissent. The inter- tape body the duct used to bind Beth’s Reihl; viewer was Detective Mark the in- from that matched a fiber taken Kubsch’s place appears terview took in what to be a car, and it tape also noted the duct police Mandy’s room the station. moth- wrapper in the car matched brand of er, Monica, throughout present (It tape nothing used on Beth. offered volunteered information time to time. was.) (as show how common this brand It my colleagues) the fact that stressed After basic establishing some informa- own during Kubsch’s account of his actions tion, Detective Reihl confirmed that Man- day matters, key was not consistent on dy School, fourth-grader was a at Lincoln during as whether he home such went she lived across street from hour, there, lunch he was whether alone Rick, Aaron and his and that dad she and up Michigan. and when he headed Aaron were “best friends.” She com- inconsistencies, These what the plus dis- Kubsch, mented that Aaron didn’t like be- *34 court “slow-moving trict called a accumula- get rough punch cause he would' and too glacier of a tion of circumstantial evi- hard “and stuff like that.” She saw Aaron dence,” jury satisfied both the second and frequently: always “I went over to his reviewing all of the so far that courts always my He over to house. came house properly Kubsch was convicted and sen- study like we like for the and used to same tenced.
spelling help words.... And we would B and each other on homework stuff.” they got Reihl when out When asked her If question the this court before were school, simply sufficiency twenty.” about “two replied the the evi- of she She said, was not school, just out and leave.” She sure pull the she to lived close was, she away. time that because left her what walk five-minute gym bag, in her but she estimated watch “last Fri- then turned to interview home, got after she was a “medium” time day September day,” which was “it takes a pretty and she commented that usual, Man- day, that murders. On to long get [Aaron’s] time to mom’s by the Al- dy up from school picked was house.” there, Academy; her mother phabet from (and up her day) picked typically detail then went into some about She “[bjetween quar- thirty and go three home plans for weekend. “He said Aaron’s inter- point At that Monica ter to four.” mom’s going that he was to his house mom jected that she “waited for [Monica’s] stay Friday, gonna night ’cause he was home, and I went and get and dad go trip Saturday____ to the field there and home.” Reihl my check came cashed was, he wanted to on go You know he—he if Rick whether Monica noticed then asked trip But the time the field bad.... replied the street. Monica “I across was we, Saturday when when we were on the I no attention. All saw was pay didn’t stuff, gonna was be in our bus and he repeated Aar- Reihl “You saw Aaron.” um, and, up. never showed He group, he hmm.” on?,” Monica said “[m]mm and why.” there. know wasn’t And we didn’t truck not remember if Rick’s was She did camping fieldtrip She went after Turning Mandy, Reihl back to there. grandmother that she not told her had again got what home that asked time she about mur- seen Aaron. She learned instead, repeating day. Monica answered after a came to her home ders news crew Mandy con- quarter to four.” “3:30 or she was karate lesson the while at her then, saw and that firmed that she Aaron following Monday, she said. dad,” coming “his “was also saw who she living room the kitchen to from their into Reihl then turned back Monica and explained get something drink.” She paycheck cashed her on confirmed she from her own was able see this she shortly Friday, after she came home from day home I “every when I walk house: (around said p.m.). again work 3:50 She Rick the kitchen or always see walk into Aaron, Rick, that she had seen but walk into walk into the restroom or his if that she did not look to see Rick’s truck of car Rick room.” Asked what kind there. what kind of They was discussed drove, Mandy replied Chevy? “[a] He drove; interestingly, Mandy truck Rick Chevy until it broke down.” used to drive her knew more about it than mother —she black, that it medium- specified was a She that said gold printing liked the “Chevro- sized, “kinda short” truck. Because his then, By let” across back. inter- down, truck had broken she added down. Reihl winding view was asked a white truck that he had driving again she Mandy yet whether saw both Friday, on borrowed from brother father, and his as well as white Aaron truck at the house when that the white truck, yard 3:30 or p.m., around 3:45 got she home school. asked yes. and she said He whether today, me you’ve given times that “[t]hese saw Rick Reihl next asked whether she accurate,” uh, are pretty these Monica an- Aaron leave afternoon. She “Yeah, said, quar- I off work at swered, “Um, get ’cause yeah, my porch I like was *35 daily her rou- after three.” This was and, they let me bubbles and I ter and blow that, interview ended. my bubbles, I seen tine. With and Rick was blowin’
(cid:127)821 interview, days Mandy’s A The permit few after court also refused the use of place employment Reihl called Monica’s videotaped interview as a recorded home, apparently in and then her an at- recollection, despite Mandy’s asserted ina- tempt yet to see whether both Man- again bility anything to recall about the inter- dy correctly and Monica had recounted view. happened happened.
what when it (“Lon- spoke grandfather Reihl to Mandy’s C nie”) and him find out if Mandy asked The upheld Indiana and Monica about story. were certain their the trial It court’s found that rulings. Lonnie him called Reihl back told that videotape was not admissible under Mandy the events that and Monica had Indiana’s evidentiary rule governing the place Thursday, described had taken recollection, use of recorded Ind. R. Evid. September Friday. prose- not on 803(5). In 2005 that rule covered: cutors recounted at Kubsch’s trial Monica police told the “her father was [a] memorandum record concerning or at her Thursday, house on that and he matter about which witness once had later reminded Thursday her that was knowledge has but now insufficient rec- instead of Friday.” said that she— She ollection to enable the witness to testify Monica—had confused dates because fully accurately, shown to have been busy; she was so she offered no reason adopted by made or the witness when why Mandy would have confused them. the matter was fresh the witness’s Nor any explain was there effort to away memory and to that knowledge reflect Mandy’s detailed comments about the tim- correctly.... ing of the field Saturday trip and her (It essentially 803(5), tracks Fed.R.Evid. subsequent trip, lesson, camping karate as it read the 2011 restyling before time, early and so on. At that not a week made.) changes were The court was con- after the trip, easy field it would have been element, cerned about the final which re- to confirm with the school whether trip quires recording that the reflect the wit- took place September 19, on Saturday, or correctly. ness’s knowledge It found that (And Friday, September 18. even the trial Mandy’s inability accuracy to vouch evidence picking up shows Rick Aaron at prior precluded of her statement its use. school p.m. between 2:20 and 2:35 on Fri- The videotape was not as a admissible day, strongly suggesting there was no statement, prior inconsistent the court addition, trip day.) field it would added, gave because no Mandy substantive relatively easy have been to confirm when testimony, evidence at all in her so paid Monica was made deposit, her (almost) prior there was no statement just as evidence shown when Beth had impeach. visited her own bank. however, conceded, The court that there
Mandy testify was called to at the sec- trial, subject one statement that was ond she almost nothing but had trial, impeachment. Mandy At say. stated memory She claimed to have no [Aaron], that “I probably didn’t see be- talking police being to the interviewed go straight day cause I home to the them in lawyer [from] 1998. When Kubsch’s care, go I attempted transcript and then would home after- use the of the in- directly terview wards.” That to refresh her recollection and la- statement contra- her, impeach prosecution ter to dicts object- her statement video she objections. ed and the court sustained saw Rick and Aaron that afternoon from *36 822- to acknowledged could be more critical court No evidence the porch,
her and possibility the that defense. And allowed to Kubsch’s have been that “Kubseh should might impeach the .state have been able to matter.” N.E.2d at this impeach her on this videotaped account cannot cure the harmless, howev- It error 735. found the that sub- impeachment was itself problem; er, Mandy’s ac- thought it because as impeachment to from such details ject videotape have been count from the would day of the the school’s records about the grandfa- call from her impeached the and cashed trip field the date when Monica It a in dates. suggesting ther mistake circum- paycheck. Under these her ability put to prosecutor’s thought that the stances, in the Court’s decision stand, and Monica on the Detective Reihl evidentiary the state Chambers overrides the theo- presumably support to “mistake” jury hearing prevented rule that the from why reason Kubsch’s ry, was “also the This evidence Mandy’s statement. was denied consti- claim he was his federal that, believed, might prompted if right present to a fails. tutional defense jury acquit to on one or more of 410 U.S. Mississippi, See Chambers v. below, explain As I the Indiana counts. (1973) 1038, 35 93 S.Ct. L.Ed.2d contrary to Supreme Court’s decision (protecting process defendant’s due was, my view, contrary to an unrea- by recognizing exception application an to Chambers, application of even un- sonable of evidence rules where evidence found ap- the strict of review that der standard trustworthy).” 866 at 735 n. be N.E.2d my colleagues which discuss such plies, minimum, conclusively a passage At this despite agreement point. on that detail our was argument shows that the Chambers adequately presented to the state courts. Ill Putting to one side the moment a corpus petitioners Habeas come to fed- evidence, thing one niceties the rules of two appeals eral court with at least Mandy in her is clear: if was correct they already have against strikes them: videotaped events she interview (either in the courts on the mer- lost state happened Friday, had on describing many procedural its or because of one of and if both Thursday, not on she had seen cleared); they hurdles that must be p.m. Aaron and late as 4:00 Rick as 3:45 or convince also have failed to the federal day, Wayne not then Kubseh could court district of their entitlement relief. By time, was They daunting satisfy- have killed them. face the burden of deliberately demand- Michigan pick up ing headed Jonathan. familiar in the Antiterrorism ing standards created always The state the time of pegged has (AED- Penalty Effective Death Act midday, 1:53 to 2:51 murders to PA), 2254(d), § 28 U.S.C. under which p.m. argued has that Kubseh ar- It never ranged for else commit the cor- application someone An for a writ of habeas behalf, obviously custody a pus person murders on on behalf of and it is judgment pursuant to the of' State day too late in the to introduce such granted respect court shall be And, radically theory. different because adjudicated any claim that was on theory the state’s is that killed Kubseh proceedings unless merits State court Aaron Rick because stumbled adjudication the claim— Beth, murdering Mandy’s him he as (1) testimony a decision con- undermines conviction resulted in that was to, Beth, trary an relates to or involved unreasonable too.
823
of,
application
clearly established Feder-
cannot be
way
used in a
that denies aii
law,
al
by
as determined
accused person
under the Due
States;
Court of the United
Process
trial,
Clause to a fair
in which he
(2)
has a
resulted in a
fair opportunity
decision that
My
was based
defend.
de-
on
tailed
an unreasonable
look at
determination of
that case
and those that
in light
facts
of the
followed it
presented
evidence
demonstrates why, contrary to
in the State
proceeding.
spin my
court
colleagues have tried
place
it,
on
the position I take is not opening up
2254(d);
§
28 U.S.C.
see Harrington v.
any floodgate for the use of hearsay evi-
Richter,
86, 102,
770,
562 U.S.
131 S.Ct.
dence. Only evidence that satisfies the
(2011) (“If
Supreme Court. Forman saw Liberty, neither who shot mind,
With that in I directly turn to the nor Liberty managed whether any- to hit Supreme Court decision that deputy controls one. A sheriff later testified that Kubsch’s case: Chambers v. Mississippi he saw Liberty, Chambers shoot and an- Chambers and the line of cases that follow deputy sheriff testified that he saw other (to it “clearly establish” use AEDPA’s suspicious Chambers make a arm move- term) the fact that a state rule of shortly evidence ment before the shots were fired. time, Mississippi proce- two rules of trial however, remaining offi- ence of
At the First, re- They prosecutor Liberty. tend to dure. because trying were cers witness, he him to call as a him in car rushed fused to McDonald put police This hospital, but he was declared dead forced to McDonald himself. call *38 rule, was in the meantime under triggered Mississippi’s arrival. Chambers voucher the Returning on the to lying ground. party the who calls a witness which scene, that friends discovered Following some of his to him. impeach forbidden took him to the same rule, he was still alive and the refused to allow Cham- trial court then was and hospital, where he treated treat as an adverse wit- bers to McDonald with Lib- charged arrested. Later he was other Second, effort to three ness. use erty’s murder. confess- to whom McDonald had witnesses hearsay the rule. ed was blocked man, McDonald, was also
Another
Gable
to
that each
prepared
Chambers was
show
rowdy
days
the
A
group
in the
at
bar.
few
testify that McDonald
of those three would
later,
in
and
he left his wife Woodville
Liberty.
he
unequivocally said that
shot
Louisiana,
to
where he found work.
moved
testimony
Much of their
was corroborated.
later, he
to
Five months
returned Wood-
acquaintance, Reverend
ville to see an
com-
The
Court found that the
Stokes,
talking to
Mc-
Stokes. After
proce-
rules
bination
these two
of state
attorneys
met
Donald
with Chambers’s
fundamentally
in a
unfair
dure resulted
them
that he
gave
and
a sworn confession
The
rendered
trial
Chambers.
rules
He also
Liberty.
the one
shot
was
who
utterly
subject
McDonald’s
him
unable
Mend,
a
that he had told
James
said
cross-examination,
repudiation and alibi
Williams,
ad-
that he was the killer. He
they prevented him
be-
putting
nine-shot,
mitted that he used a
.22-caliber
jury
the
that would
fore
the information
revolver,
according
autopsy
which
to the
them to
whether to
have allowed
decide
weapon.
the murder
McDonald
was
rule,
The voucher
the
believe McDonald.
confession,
the
to the
signed
surrendered
held,
case,
in
applied
plainly
“as
this
Court
jail.
police,
put
was
interfered with Chambers’
to defend
later,
preliminary
at the
hear-
A month
charges.”
the
against
State’s
410 U.S.
story
new
ing, McDonald recanted. His
298,
The
found no
The Court did not abandon Chambers
in per
opinion.
matter
curiam
Sears
minute it
was decided
1973. To the
v. Upton,
U.S.
S.Ct.
concede,
contrary,
my
colleagues
over
(2010).
case,
L.Ed.2d
evi-
ensuing years
carefully
has
dence of petitioner
cognitive
Sears’s
im-
reviewed
substantial number of cases in pairments
brought
had not
light
been
*39
arguments
which Chambers
have been
state
capital
court
during
sentencing
made. Some
have found
decisions
that
hearing. The
first
Court
found that the
way
give
state rules must
to the funda-
applied
state court had not
the correct
mental dictates of
process,
due
while oth-
ascertaining
standard for
prejudice for
have
ers
concluded either
the evi- purposes of a Sixth Amendment claim of
critical,
is not so
dence
or
the rule as
ineffective assistance of counsel.
Id. at
applied
deprive
does not
the defendant of a 946,
is available as a witness: Record- § at 115-16 & n.4 And Procedure A ed Recollection. memorandum or rec- (interim ed.2011). about concerning ord a matter which a 803(5), In applying Rule Indiana courts knowledge witness once had but now has and, both before after various Kubsch to enable insufficient recollection opinions have looked see if the record testify fully accurately, witness (1) ed recollection relates to a matter adopted by shown to have been made about which the witness once had knowl witness matter when the was fresh (2) edge; is one which about the witness memory the witness’s to reflect now has insufficient recollection permit , knowledge correctly. testify trial; her to fully accurately rule, along This with Indiana’s other rules (3) is one that the witness is nonetheless evidence, had been adopted 1994. It (4) willing adopt for; and able to or vouch codify was intended to the common-law one made when the matter was fresh exception prohibition against to the the use (5) mind; her correctly reflects the hearsay evidence for records of past *41 at knowledge witness’s the time of the statements about which the witness has no State, E.g., v. Impson event. 721 N.E.2d present memory. By “in- requiring only 1275, (Ind.Ct.App.2000). fi 1282-83 The recollection, rule adopted sufficient” the as awkward, requirement nal inevitably is doctrine, relaxed Indiana’s common-law because there is tension between the abili had required complete which the absence ty to inability vouch and the to recall. any memory of of as a condition admissi- But Indiana courts have resolved that ten Proposed bility. Rules Of Evi- Indiana by adopting approach sion a realistic (1993); 75 see also Fed.R.Evid. dence vouching; they accepted have even a sim 803(5) (the Committee Note model for the report statement that the ple accurate. rule), (discussing guarantee “[t]he Indiana State, 820, E.g., ARM. v. 968 N.E.2d of ... in trustworthiness found the relia- 7 (Ind.Ct.App.2012); n. see also v. Gee in bility inherent a record made while State, 271 Ind. 389 N.E.2d events were still fresh in mind and accu- (“At (1979) of them”). testimony the time rately reflecting key The is that may forgotten have completely the event surrounding prepa- the circumstances the ... but at that he can time vouch for the particularly ration of the record make it accuracy prior writing.”). In one Proposed reliable. Rules Of Evi- Indiana case, the 75. The court was satisfied when a wit specify rule itself does not dence in accuracy of ness testified that she “told the truth how the the recorded version v. proved. videotaped should be Indiana her statement.” Horton Supreme State, II, however, in 1283 (Ind.Ct.App. Kubsch took the N.E.2d 2010), position grounds, must other witness somehow vacated on (Trial 2985.) a times, Tr. at As (Ind.2011). lice in 1998. And at N.E.2d 346 result, correctly denied the re- the trial court simply assumed courts have reflects Buck’s accurately opportunity Kubsch the read port question evidence, of the at time Buck knowledge into because witness’s statement State, 736 See, e.g., accuracy v. of a report. Small not vouch for the could (Ind.2000) ad- (permitting re- recording N.E.2d that she could not even because wit- deposition answers mission making. member making specific recall ness could II, This Kubsch 866 N.E.2d 734-35. failing to deposition, but in the statements was a merely the fact that this describes that she affirmed address witness whether once “about which witness [the] matter time deposition); at the of the was truthful now insufficient knowledge had but has State, 1289, 1291 719 N.E.2d Smith full accurate permit recollection” to only that “the (stating (Ind.Ct.App.1999) testimony. made clear at the time Indiana knowledge report reflected [the witnesses 803(5) that “insufficient” adopted Rule correctly” why). explaining without at all. no recollection recollection includes why easy It is to see an endorsement is thus reason think that There no important would be witness precludes the recollection total absence of recollection, such many types of recorded use of rule. diaries, letters, memo- reports, written as ex- The Indiana Court did not randa, compilations. A witness or data require- any other press doubt signa- might be to authenticate her able 803(5) ments of Rule were satisfied. For ture, every evening writing or habit of her Chambers, then, have a purposes we diary, acquaintance in a her with the hearsay rule situation which the state memorandum, recipient of purpose and There used to block critical evidence. necessarily remembering what without Chambers, were, however, just as sub- And was said a matter substance. evi- reliability stantial assurances of of this vouching important this kind of serves an dence, This was which I discuss below. records, kinds be- purpose for those pro- in which due therefore situation nothing to ensure cause there is otherwise expressed cess command Chambers it is witness’s this recollections the state’s eviden- should overridden were recorded. tiary rule. *42 however, recognize, up I it to that Supreme the this court to decide whether B correctly interpreted of Indiana its Court rule so even own of evidence. This is Putting temporarily Chambers to one though barely on the that court touched side, fact trial was showing the that the at why videotape reason the was inadmissi- satisfy the of Rule inadequate to letter entirety explanation 803(5) ble. Here is the of its takes us to one of Kubsch’s other the that final element of for conclusion the assis- theories: that he received ineffective 803(5) Indiana’s Rule not satisfied: was of trial in a of re- tance counsel number including attempt had “in their to admit spects, Buck testified twice that she no videotaped po- the Amanda Buck’s statement.”1 memory being interviewed however, clear, attempt has My colleagues the made to rehabilitate question they evaluate the whether lawyers respect, in this but are it is essential to Kubsch's constitutionally investigation was speculation what counsel’s forced about a to resort Smith, Wiggins v. 539 U.S. proper investigation See would have revealed. As sufficient. that it any to take of number of would have been so easy impeach Counsel failed require- Mandy’s videotaped the readily steps any available to meet account that error in 803(5) steps refusing that were nec- it prior ments of Rule to allow as a inconsis- — Smith, Wiggins v. for effec- tent would essary, under statement have been harmless. urged tive of counsel. Indiana courts state assistance this was the case telephone the based on require Mandy’s witness whose recollection the call from Lonnie, only grandfather, has faded need tell the finder fact a few after days the recording in urging police that her statements the were interview the disregard never her attorneys supposed- accurate. Kubsch’s asked statements she because Instead, question. ly Mandy they day mistaken the talking about she was subject Lonnie, dropped establishing According the after the about. everything speaking Mandy fact that could not recall had on happened she recounted Thurs- police, day, September Friday the which relates to a different not on the 18th. (one conclude, requirement of the that was But rule easi- there is no reason to without met). ly They any asked testing, should have her adversarial that Lonnie was would police whether she have told the correct. No at evidence all indicates how an place, truth if such had taken reliable interview his source for that information not. they They but did could have shown may may statement have been. have He beginning videotape her the of the on been trying granddaughter to extricate his trial, trial transcript they record —the indicates from involvement the murder Mandy tape showed off may the record but have had some motive other put never her back on stand no explored. after- one ever ward—and her she asked whether was the Had for counsel Kubsch been their girl depicted They the recording. could duty toes with complied their inves- anyone have Monica or else asked who tigate conformity Wiggins, with there Mandy reputation knew well about her many ways are which could have Any steps, truthfulness. these and cer- Mandy’s very testimony rehabilitated clear tainly all of them taken together, would (see B) Appendix recalling she was requirements have met the Indiana courts just days Friday, events of four earlier 803(5)’s compliance have set for Rule with Anyone than the interview. who watches requirement for evidence that shows that only impressed by video can be how recording reflects the witness’s knowl- articulate, forthcoming Mandy bright, edge correctly. inis it. If were some about there concern steps Mandy
Counsel also could have taken
to the fact that
old
years
nine
time,
trial
assumption
Mandy’s
counteract
court’s
could
put
counsel
(2003).
case,
applies
equal
123 S.Ct.
direct observations of enough not to meet was reliable their home. first, standard for use at trial: Chambers (cid:127) mother, Monica, present Mandy’s was not Mandy’s were corrobo- statements provided
throughout the interview and rated; second, “essentially that she was corroborating details at numerous cross-examination; unavailable” points. third, “never pushed” that Detective Reihl Mandy any «Neither nor Monica had during Mandy on “critical details” case; personal interest interview, there as she had her such whether .the no to fear that their thus reason at dates times correct. Ante 799-801. way one accounts were slanted begin I contention. A review last other. at B transcript Appendix shows (cid:127) simply majority this Mandy and were avail- the case. Both Monica posits simply taking that Reihl “was testify [Man-
able trial to after video re- shown, dy’s] spoke,” but Reihl point jury at which account she *44 Mandy to con- weigh peatedly stops “pushes” would have been to then- able provides firm is saying. what she He asks her over no for support interpretation. this talking and over whether she is about Fri- To contrary, the Monica partic- is an active day’s {E.g., events. you “[D]o remember ipant provides who her own detailed ac- they Friday?” pick you last “And did up count of her afternoon Friday. on that Friday?” “Was that truck at white Rick’s Like Mandy, Monica herself saw Aaron Friday?” you house after “Friday, got school, after though even she not did see home, just left they a little bit after when (No Rick. thinks one that and Rick Aaron home, you got right?”) At the end of the separate took house; cars to the Kubsch interview, mother, Reihl turns to her Mo- drive.) Aaron And, was far too young to nica, again and asks for have, assurance: as I already pointed out, there was “[tjhese you’ve times that given today, me much easily more corroboration within uh, pretty these are accurate?” Monica reach. were, well,” responds they “pretty Last, precision necessary some is stay because “sometimes I a cou- respect Mandy’s for availability cross- after, so, ple I get minutes home a little examination. was She not “unavailable” in later. just happen And was so [sic ] the sense of not being present at trial. days have been one of the that was a She inwas the courtroom and she testi- little bit later.” It is also clear from the fied; at aspect least one testimony, her transcript that this was the not first time as the Indiana Court acknowl- Mandy Monica and spoken had to Reihl edged, should have been impeached her past Friday’s about that events. At vari- statements on the video. She was “un- points, ous Reihl that he indicates only available” because memory her had on following up they conversation had every failed. But that is true “at witness previously the house.” Given these proffered 803(5). assurances, repeated under Rule Indiana there was little rea- courts, others, son day for Reihl a like look later to ask the for the next-best two yet again Mandy interviewees possibili- “about the assurances.' never claimed that ty memory that her had girl confused events of she was not tape, the the nor has days,” two majority different as sug- argued the the state ever that the “Monica” on gests necessary require- to meet tape Mandy’s was not mother. There ments of Chambers. Ante at 807. was, For all short, ample corroboration even on know, we Reihl did not like what he the record that exists to this satisfy aspect hearing hoping they and was would of majority the Chambers rule. The sees change story. their no way distinguish hearsay this ordinary hearsay, mine-run of and it majority also understates de- throwing accuses me open the door gree Mandy’s corroboration account (as every admission of said, police recorded inter- videotape I have corrobora- many cases, view. In Not so. just tion witness good that is as found in itself). will good enough have a recollection of Mandy’s Chambers own mother 803(5) what interjects happened that Rule will never corroborating repeated- remarks cases, ly play. many come into In My prof- during colleagues the interview. fered push hearsay one be cumulative or rele- this to side because will believe off-the-record, only peripheral that Monica’s vant to a subsequent matter. great cases, police majority non-testimonial statement the admission of (but she Mandy) wrong day hearsay had the statement will not have life-or- effectively death consequences. erased Monica’s own consistent The dissent corroboration the video. The transcript Chambers worried about exactly same *45 832 hearsay But rule be death. That alone majority here invokes. the state’s
things the that lay any granting to prevail, Supreme and the should rest fears not dissent did pro- relief will in Kubsch under Chambers continued to follow Chambers Court has majority the “sweeping” to it the result group ap- of cases which duce the small Chambers, Like Kubsch court not be second- fears. defendant plies. This should Court, attempt present I in his to Supreme was “thwarted guessing the but fear by this of his defense the strict majority portion is the has done. Under that what rules evi- view, apply application of certain of [state] will never to its Chambers Chambers, 289, at 93 pivotal a dence.” U.S. allow to introduce evi- defendant case, hearsay the dence, it. S.Ct. 1038. In Kubsch’s By if a state rule block so would by the ineffec- contravening Supreme problem compounded was it is the ruling, get tape to hearsay “the rule tiveness of counsel’s efforts the command that Court’s mechanistically to admitted. may applied be de- not Chambers, justice.” the ends
feat
(also
trial),
a murder
the
In Chambers
302,
at
APPENDIX events, September
Timeline of Time Kubsch Beth/Others out, indeed, my point colleagues Hardy 2. As surprising Hardy’s testified if would be against By charges dropped exchange Kubsch in second trial. were for that another; surely testimony. time were one adverse to (cell in Elkhart is at work Beth Mishawaka home Near am6:00 Instruments). (United record)._ Musical (Skyline At Elkhart am work 6:50 Corn.)._ *47 Cellphone call near work.
9:11 am goes home. Beth finishes shift am 10:00 from pages Beth Kubsch twice am 10:30 home. Skyline to Beth break am Call 10:45 room._ makes a call from home Beth am
10:48 house._ Rick’s goes - run Beth out to errands. 10:53am Security at camera Teach-er’s am 11:08 shows Beth with the Credit Union dog car._ in the punches of work. am Kubsch out 11:13 receipt union Beth’s credit shows
11:14am completed._ transaction (seen by Erin at home am noon Kubsch 11:30 Honold)._ home to American Gen- am Call from
11:37 eral Finance,__ credit counselor Beth meets with 11:52am Pipke Bend._ Edith South makes 1 call to house and pm Kubsch 12:09 12:11 (cellphone)._ Rick calls to again. pages pm Beth Kubsch 12:16 (31 calls sec- pm Kubsch onds) the house 12:18 (toward from Osceola Elkhart)._ calls from break pm
12:40 Kubsch house Skyline._ room at pm Rick Beth at home. calls 12:46 break pm calls house from 1:17 Kubsch Skyline._ at room punches again out pm Kubsch
1:52 _ return. does not calls from Elkhart
pm1:53 Kubsch home (46 seconds)._ area picks up Rick Aaron from school pm 2:20 to 2:35 in South Bend. near pm makes call from 2:51 Kubsch (cell records)._ home mother from pm Kubsch calls Beth’s
3:15 (after tries). Cell sec- Elkhart heading indicate he toward tors Michigan._ Mandy when Approximate time pm 3:45 to 4:15 at their saw both Aaron Rick home._ Bend South pm 4:42 Kubseh makes calls near to 4:47 _Schoolcraft, MI._' pm picks 5:00 Jonathan up Kubseh son Rivers,
___Three MI._._ pm Wayne Temple
5:30 to 5:45 sees at Kubseh _Kmart Three Rivers._ pm stop 5:30 to 6:30 and Jonathan Kubseh Osceola home of _Constance Hardy._ - pm5:30 Anthony discovers the bodies of Rick and Aaron Milewski at the _house. _ *48 pm5:56 phone Kubseh makes call on _network close to the house._ home;
pm6:45 police Kubseh returns are there; goes he station first
_interview._
pm9:00 Police body discover Beth’s basement; they bring Kubseh _back to the station._ pm After 9:00 Kubseh interviewed second time by police; he invokes Miranda
_rights._ B
APPENDIX you Reihl: What month were born? Transcript of Police Interview with Mandy Monica and Buck Mandy: February.
September February. Reihl: day? What Det. Mark Reihl: out stepped [Inaudible] Mandy: Eighth. for a go minute. I’ll ahead start ask- Reihl: eighty-nine. Nineteen ing you couple questions. Okay, Yeah. Mandy: time And, today is now three o’clock PM. .Alright. Reihl: is September twenty-second, nineteen ninety-nine Mandy: you my mommy But ask ninety-eight. And can —nineteen that. I think so. Mandy, M-a-n-d-y? is it Oh, sure, right? Reihl: I’m pretty all Mandy: Uhhuh. I pretty intelligent. you You’re think know. M-a-n-d-y. Reihl: Buck. B-u-c-k? Yeah, that, Mandy: yeah yeah I think Mandy: huh. Uh yeah. you’re Reihl: And how old? Mandy February Reihl: was born Mandy: Nine. eighth?
Reihl: Your birthdate is? Monica: Yeah. Reihl: Nineteen eighty-nine? Mandy: ninety- Ninety-eight. Nineteen eight. Oh, eighty-nine. nineteen Mmm Monica: hmm.
Reihl: is nineteen ninety-eight. This Okay. Reihl: Mandy: Cool, eighty-nine. Mandy: got right. Nineteen I it I never Okay. beginning. I don’t know. See, And Just you got right.
Reihl: he kept of it. I don’t know. ’Cause track name is Monica? your mother’s day just forgot. I and then told me one huh. Mandy: Uh Oh, okay. that’s Reihl: Correct me? M-o-n-i-c-a? Reihl: I I can’t think— Mandy: remember Monica: Yeah. fast, by so doesn’t just goes Time Reihl: you live at thirteen Buck. And Reihl: Aaron used to talk you it? said that And twenty Indiana Bend. East South made him things about sometimes Mandy: Uh huh. sad? home is two three your phone Reihl: And Mmm hmm. Mandy: [Nods head] three, three seven? seven seven upset? him Reihl: Made seven Mandy: Two three three seven he, like he wished Mandy: Right, and he Yep. three seven. up didn’t with his dad and mom break you go And to Lincoln Right. Reihl: like, He was go Wayne. like School? Wayne. didn’t like *49 Mandy: Yeah. Wayne? Aaron didn’t like Reihl: which you’re grade? And Reihl: No. Mandy: Fourth? Reihl: how come? Well Mandy: Yeah. because, like, get Mandy: he would Um year? How’s this Okay. Reihl: school him him punch with and stuff and rough that. too hard and stuff like Umm, Mandy: good, though I have even um, that, the teacher is Wicked Witch say it he ever Reihl: Was because—did West, okay. fine. of the she’s She’s him Wayne was mad at was it because just they playing? were gotta like they sometimes be Reihl: Well you will listen. that so kids said, why Mandy: He never he never said like, just just he he didn’t like him he said Mandy: Yeah. just Wayne like him said he didn’t because Well, you’re the reason here Okay. Reihl: too and stuff. just rough was like you the street— is that live across Wayne Okay. say he ever if Reihl: Did Mandy: Aaron? Prom rough his mom? ever was dad Rick. Reihl: From Aaron and his Mandy: No. Mandy: Yeah. Reihl: You didn’t talk about that? you Aaron Okay. Reihl: And were No. Mandy: Mends, good pretty huh? talk Okay. you guys What else did Reihl: friends, yeah.
Mandy: Best about? Reihl: Best friends? like, Um, why talked about he Mandy: we Mandy: [Nods head] we here and like what wanted be moved known Aaron? long you Reihl: How um, and, are our got we older who when and, like, he and where we used live Mandy: know. I think moved Mends I don’t my May parents; and I introduced him beginning I think. there like the just me to his Then Mandy: introduced dad. we Two twenty.
became best friends. Reihl: Two twenty. And how long does it him to get you take home do think? great. Reihl: That’s Mandy: Mmm probably like—we don’t live Mandy: always I over to went his house. too far from All you Lincoln. do gotta my He came always over to house like go straight and you’re turn and there. study we like used to spelling same give my He’d words. me spelling words Oh. Reihl: give and I him his spelling would words. Mandy: Probably like five to get minutes
And help we would each other on home- there. good work and stuff. were pretty We Okay. Reihl: Uh—huh. friends. If Mandy: riding he was his bike it would That’s, Reihl: that’s wonderful. only him take like two minutes. But if he Mandy: got really good. along We walking probably would take him a pretty long time. kid, pretty Reihl: He’s a good huh? Now, Mmm Reihl: hmm. you do remem- Mandy: Mmm hmm. [Nods head] ber Friday? last Reihl: Smart? Mandy: Yeah. knew,
Mandy: Uh huh. [Nods He head] Okay. you Reihl: And told me earlier that pretty good. could, he knew his times He you togo the Alphabet Academy? just he could do ’em in flash. He Mandy: Uh huh. [Nods head] pretty good at ’em. aHe’s lot than better me. you Reihl: And that usually pick up *50 school, right? at you, say you Reihl: Did you did used walk to school with him sometimes? Mandy: Uh huh. [Nods head] no, Mandy: Okay. I they you walked. Reihl: pick up Uh never And did Friday? you Reihl: never Oh, did. Mandy: Uh huh. [Nods head]
Mandy: No. I see—I seen him walk to you Reihl: And the Al- straight went school. phabet Academy? Reihl: Uh-huh. Mandy: Uh huh. [Nods head] I Mandy: never walked to—I never what, say you Reihl: And your then mom my walked to school or to house alone. picks you up from there? Okay, Reihl: get how would he home? Mandy: Uh huh. [Nods head] Um, some, Mandy: usually if he wasn’t Okay. you you Reihl: And said picked her grounded from his bike would bike ride his up what about time? home. He would walk home. His dad thirty quarter Monica: Between three would pick up come and him when had to four. -Um, his truck. Rick would walk to school pick up They Aaron. would walk back Okay. you straight Reihl: And went home?
home together. you go? where’d Or And, Reihl: Mmm hmm. you guys I I usually Monica: call down there and get out of school at time? her what watch walk from there to our down um, had, um—I his—he some my drink in I mom then waited
house. And it He a drink had home, don’t know what was. I and went get and dad to cup. a his it was in hand but home. my and came cashed check Okay. Reihl: you got home three when Okay, Reihl: um, if Rick was at you notice thirty, like, did they usually pop, Like ’cause Mandy: the street? So, home across probably a lot. Storm. like Storm uh, attention. All I pay What, I no Rick drive? Monica: didn’t Reihl: what does saw was Aaron. a Chevy? He used to drive Mandy: A down. Chevy until broke Aaron? You saw Reihl: Chevy Reihl: A what? hmm. Monica: Mmm no re- [Eyes searching, verbal Mandy: if Rick’s truck You don’t remember Reihl: sponse] there? it a car or a truck? Reihl: Is Monica: No. Truck. Mandy: And, Mandy you Okay. then were
Reihl: you got home that telling me that when color? Reihl: What time? was about what Black. Mandy: day From care? Monica: Okay. Reihl: Reihl: Yeah. like, like kinda short. I mean Mandy: It’s Um, my see mom’s truck? you it—did thirty, three was around Monica: That truck, well, my mom’s my uh mom’s quarter four. medi- big. probably His is pretty truck’s you when saw Okay, and Reihl: that’s truck, you um Kinda short. know. Aaron? driving Friday? Did was he Reihl: What Mandy: head] Uh huh. [Nods you that? see you Reihl: And saw dad? Um, Mandy: his truck broke down before dad, His Mandy: [Nods head] Uh huh. driving that. white truck He was drive— he, coming living from their his dad was And which his brother’s. his brother get something into kitchen to room *51 let use the had a car so his brother Rick drink. truck. over Aaron’s house or you go Reihl: Did Okay. truck Was that white Reihl: your just him from house?
you saw Friday? Rick’s house walked, I, I,'l, üm, Mandy: when I when Mandy: Yeah. always day I I see every when walk home you from school? got Reihl: home When walk into the Rick walk into the kitchen or Yeah. Mandy: into
restroom or walk his room. time And about what 'Okay. Reihl: this is mean, you I him from out- Reihl: did see again? you actually go in did into looking side n four. thirty, quarter Three Monica: the house? thirty three and Okay, so Reihl: between No, Mandy: I um seen it from the out- four— quarter to go him ’cause I into side ’cause when seen Yeah. Mandy: he back he had a the kitchen. When came stay night go You saw— there to to the field trip Reihl: Saturday. probably why, So it was and Aaron and Rick. Mandy: probably stay Rick wanted to a little while you ever Okay, Reihl: at the house. Did know, was, to talk. You he he—he wanted see ’em leave? go So, on field trip they bad. were Um, my I Mandy: yeah, porch like on gonna pretty early get was leave to the and, let me bubbles. And I they blow go. school on time to But the time bubbles, I my was Mowin’ seen Rick we, Saturday when when we were on the leave. pull stuff, out and bus and he gonna be our and, um, group, up. he never showed He Okay. long, long Reihl: Now how how wasn’t why. there. And we didn’t know might guess hard to after —and this be But Saturday Sunday got when we home — you probably at —’cause don’t wear cousins, um, my ’cause go camp— we watch, you? do camping we went after the trip, field we Well, watch, well, I Mandy: my yeah until went, just we came back from the field my my bag did but. watch is and trip, my mom her drove truck back to I I—’cause had to take it off when we had the, up back to our up house and to the just I gym. take it off. and, camper my grandma goes, “Did So, you Reihl: about what time do think like, “No, you see Aaron?” and I’m he was house, they you guess? left their if had to supposed group, to be our he wasn’t um, um, Sunday, my my there.” And then Mandy: Um— day they it care teacher said showed ques- Reihl: I gotta know it’s be hard my grandpa get, my grandpa TV but didn’t tion. he, turn it on didn’t there because he Mandy: Um— they got it Fri- didn’t know was murdered So, mean, day night. Monday, I and then very long you got Reihl: after Was um, Monday, Monday News Center 16 home? house, I my came to was at ka- Mmm, Mandy: medium. Because his I, practice. rate I ’cause had When we know; pretty away, you mom lives far my grandma came home said News Center you I And know but think it was like—I like, just, just proba- came to our house don’t know. bly a ago. while Okay. Reihl: you get Reihl: So didn’t a chance to talk to Mandy: probably It was like medium then, him huh? you pretty long know it takes a because Mandy: No. get time to to his mom’s house. So, home, Friday, you got Reihl: after why going Reihl: Well just you got left a little bit after when *52 you, I think he didn’t mom’s house. told home, right? he? Mandy: Yeah. Um, Mandy: guess just I visit her. you Reihl: And saw ’em leave? Okay, going did he talk about to his
Reihl: Mandy: pulled Yeah. He out. house? mom’s just Mandy: going they together, He that he was to his Reihl: And were Rick said Aaron, Friday, gonna nobody "’causehe else with ’em? mom’s house was them, Okay. you got then home then just Reihl: So was with else Mandy: No one cash long you gone were about —how Rick. Aaron and the check? Okay. Reihl: minutes. Probably about fifteen Monica: Rick, cause Aaron’s Mandy: ’Cause home, that Okay, you got and when Reihl: if Aaron’s mom was know mom—He didn’t it a little after four o’clock? put would if thinking Rick was yet home so at the house then? And was Rick still there, Wayne’s probably then mom’s not said, So, just “I’ll drive not there. I pay I no attention. Like Monica: didn’t off, out and just pulled took you,” they said, really I Aaron. I didn’t all saw was took off. if truck there. look to see Rick’s was Well, when Okay. Aaron was still there Reihl: Reihl: your check? you got you back after cashed And— Mandy: Yeah. Monica: Monica, sorry. Monica, I’m Reihl: if Okay. you And don’t remember Reihl: I Thur —and when Mandy: And Fri —and that truck was in the— them— playing was uh, pay Nuh I didn’t no attention. Monica: hmm. Reihl: Mmm Okay, something, um—You said Reihl: was, he had some clothes Mandy: There too, you you some- didn’t about overheard his, laying swing on his on their laying on thing couple ago. one time a months Um, porch. he had a whole on the front don’t, said, I like I I don’t Monica: Yeah. I, I laying on there and bunch of clothes But he was know who woman was. for. You know what were didn’t standing in their standing, they were know, gonna spend he was thought I And, driveway. standing well he was Saturday Sunday, come night there driveway. sitting was in the She Um, Sunday’s rolling Monday. home And, uh, I hear what she truck. couldn’t Saturday, there. around and he wasn’t was, know, you saying, but he he was trip, field he wasn’t there. Saturday the F-word, him, and F he don’t saying the Monica, you something said back at Reihl: me, just going on and on scare and he was talking you I was your house when he, left, on. And then then she and he um, you’d your cashed you about said just went into the house. check. truck, did it look like? Reihl: This what Monica: Yeah. a, It was it was a little black Monica: Friday? Reihl: truck. Monica: Yeah. know, you you your know Reihl: Do do And that was what time? Reihl: about you vehicles? Do know the difference be- you that after come home from work? Was a— tween I came home from Shortly Monica: after Well, lettering on the back Monica: work. like, kinda, on the back of it was kinda like, you really couldn’t tell rusted And, Okay. you what time do think Reihl: kind of car it was— what that was? Mandy: Um— Probably about ten Monica: Let’s see. kind of truck. *53 till Monica:—what
minutes four.
Mandy: Chevy Aarons dad’s truck had Reihl: Mmm hmm. just printed there. It was beautiful Monica: But it wasn’t all closed in. just It ly. It gold just right was and it was little, had like I you’d don’t know what it, just there. You could read so couldn’t ’em, call it went from the all top way Aaron, been Aaron’s dad’s truck, the back of the just and it was a truck, was, but, ’cause Aaron’s dad’s truck short thing. This one open, was all I he, it was still there where it broke down. believe. I think it was. truck’s, I mean Aaron’s dad’s truck was just Reihl: It regular was like a pickup just beautiful. Chevy just— was truck. Reihl: But was this was this his ex-wife? Monica: Yeah. Was this— Reihl: Okay. So it wasn’t like a little sport I Monica: don’t know. utility vehicle? Reihl: —Elizabeth? Monica: No. Monica: I don’t know who she was. Like you Reihl: Like see like one of those said, saw, I, I all I all I never seen the Suzuki Samurais or something like that? know, I, just woman. You I know that she Monica: No. It was— Well, face, had blonde hair. I seen her but she had blonde hair. Reihl: Kids drive a lot.
Reihl: passenger Was she a Monica: pretty the truck? It was rusted. ' Okay. right. you Monica: No. She was Reihl: All driving it. But don’t know whether or not that was his— Okay. Reihl: Monica: No I have no idea. was, Monica: And this then I saw her once Reihl: His ex-wife Elizabeth or not? All know, a, little while after that. You like right. know, I couple don’t weeks later. And
that was the I last time seen her. just Monica: I know that he highly upset that day. Reihl: driving What was she then? Reihl: Oh.
Monica: thing. Same Monica: happy, And she didn’t look too Reihl: This truck? and she left and he went into the house. know, Monica: Mmm I hmm. don’t I Okay. Reihl: don’t, I like said I don’t know who she was. Yeah, even, Monica: I don’t I don’t know Mandy: mom’s, um, Aaron’s mom has mean, who I his ex-wife is. it could have blonde hair. her, I, been but I don’t know. Reihl: just Mmm hmm. I was trying to Okay. Reihl: anything Was there else? I if maybe you see could describe this truck. exactly can’t remember what all we talked it, anything,
Was there pickup was was it a but, that, about at you say the house did truck open where it has the bed uh, I thinking you said that Aar- back or up? was it all closed on had made some to you comments be- Uh, Monica: let me think. I think it was fore, too, about— See, open. that, ah, ’cause the one that Oh, just Monica: told me the once. Aaron’s dad used to drive had the little things that went down the side. Reihl: Oh. *54 for a Friday gonna go were look me one time that he Aaron just He told
Monica: But, just stepdad. figured I I go like his to his mom’s. didn’t doesn’t new house or just being a kid. he was know, thought they going I were look back, then come and for a new house and know, “My mom and dad’s You Monica: know, Like, go. go then to his you and I really guy. I don’t like this divorced but But, didn’t, I I didn’t know. mom’s. my Wayne really to be with don’t want know, rather, my him you and mom. I’d you’ve giv- times that .Okay. Reihl: These together mom be —” uh, accu- today, pretty me these are en hmm. Reihl: Mmm rate? stepdad,” thing. kinda my “—than Monica: Yeah, get I Monica: Mmm hmm. ’cause just I thought all I was. So That’s And quarter off work at after three. to it. really pay no attention didn’t that, the traffic and and sometimes the Well, just Okay. Okay. right. All Reihl: you gotta South Shore comes wait then, Mandy, you got got I this so that. thirty, quarter of four home about three Mmm hmm. Reihl: you Aaron and his dad and that saw truck at his house? white So, yeah, pretty Monica: well. Yes.
Mandy: you much a routine that pretty Reihl: It’s then, Monica, you got home Reihl: And every day? do four cashing that check around Yeah. Monica: after, you a little saw them o’clock or work, Every day you that is? Reihl: house, you or at both at the least saw Aaron? on, sometimes I Monica: Yeah. Sometimes Yeah, I saw Aaron. Monica: after, so, I stay couple have to minutes get just And that was home a little later. Okay. you But never saw ’em leave. Reihl: days happen so to have been one No. I was in the house Monica: that was a little bit later. they time left. I, Okay. any All I have right. Reihl: don’t Okay, Mandy, you did see ’em Reihl: questions that I can think of at the more leave, you exactly don’t know when it but you anything else that moment. Do they was that left? overlooked, you Maybe can think I of? leave, but, you I Mandy: Yeah. seen ’em I that have overlooked? no, bags know I didn’t see I didn’t see no when, left, in the truck. And when you? Do Monica: No. the clothes were still there. Mandy: [Shakes head] Okay. swing? Reihl: On the you very coming Reihl: I thank much for Um, Mandy: yeah. ’Cause when his you down. I’ll take back home now. The there, they grandparents picked up were is, uh, twenty three PM. I [Pause] time just box. the clothes and threw ’em the fifteen, you you that would take about told Okay. Reihl: twenty minutes. Mandy: thought that he mov- And we your Mandy: [Pointing ceiling] Is that ing, neighborhood so like didn’t like camera? I moving. thought, he was we What it, up I if Reihl: It’s there. don’t know if didn’t know Rick and *55 Oh, thought I it Mandy: there is.
was—it’s in that vent there. PACKER, Ph.D.,
Dr. Subah
Plaintiff-Appellant, OF INDIANA
TRUSTEES UNIVERSI MEDICINE,
TY et SCHOOL OF
al., Defendants-Appellees.
No. 15-1095. Appeals,
United States Court of
Seventh Circuit.
Argued June 2015. Aug.
Decided