In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 14-1898
WAYNE KUBSCH,
Petitioner-Appellant,
v.
RON NEAL, Superintendent, Indiana State Prison,
Respondent-Appellee.
____________________
Appeal from the United States District Court for the
Northern District of Indiana, South Bend Division
No. 3:11-cv-42-PPS — Philip P. Simon, Chief Judge.
____________________
ARGUED FEBRUARY 9, 2016 — DECIDED SEPTEMBER 23, 2016
____________________
Before WOOD, Chief Judge, and POSNER, FLAUM,
EASTERBROOK, KANNE, ROVNER, WILLIAMS, SYKES, and
HAMILTON, Circuit Judges.
WOOD, Chief Judge. On September 18, 1998, someone mur-
dered three people in Mishawaka, Indiana: Beth Kubsch, Rick
Milewski, and his son Aaron Milewski. Beth’s husband,
Wayne Kubsch, was accused and convicted of the triple mur-
ders and sentenced to death. After direct appeals and post-
conviction proceedings in Indiana’s state courts, Kubsch
2 No. 14-1898
turned to the federal court for habeas corpus relief under 28
U.S.C. § 2254. Although he raised a number of arguments in
support of his petition, by now they have been distilled into
one overarching question: did the state courts render a deci-
sion contrary to, or unreasonably applying, the U.S. Supreme
Court’s decision in Chambers v. Mississippi, 410 U.S. 284 (1973)?
The stakes could not be higher: because the state courts
found Chambers inapplicable, the jury never heard evidence
that, if believed, would have shown that Kubsch could not
have committed the crimes. The district court and a panel of
this court concluded that the state court decisions passed
muster under the deferential standards imposed by the Anti-
terrorism and Effective Death Penalty Act of 1996 (AEDPA).
See Kubsch v. Neal (Kubsch IV), 800 F.3d 783 (7th Cir. 2015). That
opinion was vacated when the full court decided to hear the
case en banc. We now reverse and remand for issuance of the
writ.
I
A
We begin by outlining what happened on the fateful day,
relying on the facts that were admitted at the second trial, as
recounted by the Indiana Supreme Court. See Kubsch v. State
(Kubsch II), 866 N.E.2d 726 (Ind. 2007) (second trial); see also
Kubsch v. State (Kubsch I), 784 N.E.2d 905 (Ind. 2003) (first
trial), and Kubsch v. State (Kubsch III), 934 N.E.2d 1138 (Ind.
2010) (post-conviction). As this account shows, the state’s case
was based entirely on circumstantial evidence; all agree that
there was no direct evidence of guilt.
Wayne and Beth Kubsch were married in November 1997.
It was a second marriage for both: Beth had two sons, Aaron
No. 14-1898 3
Milewski, from her previous marriage to Rick Milewski, and
Anthony Earley; and Kubsch had a son, Jonathan, who lived
in Michigan with his mother, Tina Temple. Aaron lived with
Rick in South Bend, Indiana, while Anthony lived with
Kubsch and Beth in nearby Mishawaka. Kubsch owned the
family home, as well as 11 rental properties in St. Joseph
County. These properties were encumbered by mortgages to-
taling approximately $456,000 as of mid-1998. Kubsch also
had credit-card debt exceeding $16,000. He tried paying that
off by refinancing four of his rental properties, but by August
1998 the credit-card debt had reached $23,000, and by Septem-
ber Kubsch was falling behind in his mortgage and tax pay-
ments. Around that time, he bought a life insurance policy on
Beth, with himself as the sole beneficiary; the policy was to
pay $575,000 on her death.
On the morning of September 18, 1998, Beth’s birthday,
both Wayne and Beth Kubsch were up early. Testimony from
Beth’s coworker Archie Fobear established that by 6:00 a.m.
Beth had already left the home that she shared with Kubsch
on Prism Valley Drive in Mishawaka and was just starting to
work at United Musical Instruments in Elkhart, Indiana, ap-
proximately 11 miles away. Cellular telephone records indi-
cated that Kubsch made a call at that time from the sector just
adjacent to the one covering the home. He was driving to his
place of employment at Skyline Corporation, also in Elkhart;
he punched in at 6:50 a.m. Cell records show that Kubsch
made a telephone call at 9:11 a.m. somewhere near his work-
place, and that he made another call at 10:45 a.m. from Sky-
line’s break room. The latter call was to the home, presumably
to Beth, who had finished her shift at 10:00 a.m., returned
home, and paged him twice from home around 10:30 a.m.
4 No. 14-1898
At 10:48 a.m., a five-minute call was placed from the
Kubsch home to the home of Rick Milewski. At that point
Beth left the house to run some errands. A security camera at
the Teacher’s Credit Union shows Beth, along with her dog,
in her car at a drive-up window at 11:08 a.m. There is a credit
union receipt stamped 11:14 a.m. confirming a completed
transaction. A little while later, at 11:52 a.m., Beth was with
credit counselor Edith Pipke at the Consumer Credit Coun-
seling Agency in South Bend. No evidence admitted at the
second trial indicated where she was after she left the credit
union and before she arrived for her appointment.
In the meantime, Kubsch drove back to the Prism Valley
Drive house after punching out from his job at 11:13 a.m. Erin
Honold, a neighbor, saw him and his car in the driveway be-
tween 11:30 a.m. and noon, around the time when Beth was
speaking with the credit counselor. Telephone records from
the house indicate that a call was made at 11:37 a.m. to Amer-
ican General Finance; Kevin Putz, an employee of that com-
pany, testified that he spoke to Kubsch that morning. Before
leaving the house, Kubsch admitted at the second trial, he had
smoked part of a marijuana joint before returning to work.
Between 12:09 and 12:11 p.m., Kubsch made three more calls
using his cellphone, one to the house (implying that he was
no longer there) and two to Rick Milewski. He apparently in-
terrupted Rick while Rick was speaking with his brother Dave
about an upcoming hunting trip. Dave testified that Rick said
that Kubsch was calling to discuss moving a refrigerator at
the Prism Valley Drive house.
Beth paged Kubsch again at 12:16 p.m.; cell records indi-
cate that at 12:18 p.m., he called the house for 31 seconds from
the vicinity of Osceola, a town between Mishawaka and
No. 14-1898 5
Elkhart. Kubsch returned to Skyline and finished smoking his
joint; he did not punch back in. He made two phone calls from
the break room, one at 12:40 p.m. and the other at 1:17 p.m.
Between those calls, Rick called Beth at 12:46 p.m. Kubsch
punched out of work again, this time for the day, at 1:53 p.m.
A minute later, he called the house from Elkhart and was on
the line for 46 seconds. The next call from Kubsch’s cell phone
came at 2:51 p.m.; it was from a sector near the house. Kubsch
testified that he was at the house between 2:30 and 2:45 p.m.,
but that no one else was there. The state’s theory was that this
was approximately when he committed the murders—be-
tween his 1:53 and 2:51 p.m. phone calls.
Witnesses testified that Aaron was waiting outside Lin-
coln Elementary School in South Bend and that Rick picked
him up there between 2:20 and 2:35 p.m. (The school is now
called Lincoln Primary Center, a member of the South Bend
Community School Corporation; Lincoln’s after school pro-
gram begins at 2:20 p.m., presumably when the school day
ends. See South Bend Community School Corporation,
http://sbcsc.ss10.sharpschool.com/parents/Be-
fore%20&%20After%20School%20Care/kaleidoscope_club_-
_after_school_program/ (last visited Sept. 23, 2016).) If so, that
would narrow the possible window for Kubsch to have com-
mitted the crime down to only a few minutes. We return to
this point later, in our discussion of the Chambers issue.
Around 3:15 p.m., Kubsch placed numerous calls to Beth’s
mother, Diane Rasor; he eventually connected on the 11th try.
Cellular records indicate that by then he was driving north
toward the Michigan border. Between 4:42 and 4:47 p.m. In-
diana time, Kubsch made some calls picked up by the cell
tower in Schoolcraft, Michigan, which is about 11 miles north
6 No. 14-1898
of Three Rivers, Michigan, where Kubsch’s son Jonathan lived
with his mother. (For the sake of consistency, we use Indiana
time throughout this account; in fact, though most of Indiana
and most of Michigan are in the Eastern time zone, Indiana in
1998 had not yet adopted Daylight Savings Time; thus Indi-
ana was on Eastern Standard Time in September 1998, while
most of Michigan, including Three Rivers and Schoolcraft,
was an hour ahead on Eastern Daylight Time.) Around
5:00 p.m., Kubsch picked up Jonathan; he also said hello to his
friend Wayne Temple around 5:30 or 5:45 p.m. at the local
Kmart store. He then headed back to Osceola with Jonathan,
stopping for ten minutes at the home of Constance Hardy, the
mother of his friend Brad. At 5:56 p.m., he made a call from
the cellular region close to the Prism Valley Drive house.
Beth’s son Anthony had expected his mother to pick him
up late in the afternoon after a school dance. When she did
not show up, Anthony got a ride home with a friend. He ar-
rived around 5:30 p.m., saw his mother’s car and Rick’s truck
in the driveway, and found the house locked. Anthony used
his key to enter, saw bloodstains and signs of a struggle, and
discovered Rick’s body at the foot of the basement stairs. He
went down the stairs, saw a large knife stuck in the body, and
found Aaron’s body nearby. Anthony immediately ran for
help, and police arrived by 5:45 p.m. Both Rick and Aaron had
multiple stab wounds, but at that point the police did not no-
tice any gunshot wounds, nor did they find Beth. Some offic-
ers left to obtain a search warrant for the house, and others
remained at the crime scene.
Thus it was when Kubsch showed up at the house at 6:45
p.m., he found the house surrounded by police. The police
No. 14-1898 7
took Kubsch to the station, interviewed him, and then re-
leased him. The audio- and video-recording of that interview
shows Kubsch appearing to be under control, not distraught
or showing any emotion. He made no reference to his missing
wife. During the interview, Kubsch told the police that he and
Beth had planned to meet for lunch to celebrate her birthday,
but that he had called to cancel because he had been late for
work. He also said that he had gotten permission to leave
work early so that he could buy her a present. (He did not do
that until later in the day.) He told the police that he had gone
home at lunchtime but could not get in, because he had for-
gotten his key. He did not say that he had gone home a second
time, shortly after work, before heading to Michigan.
After the interview, according to testimony from Kubsch’s
friend Dave Nichols and Nichols’s ex-wife (Gina DiDonato),
Kubsch called them and, according to the state, said two
things that only the killer, or someone who had talked to the
killer, would have known at that point. The first was that Beth
was “gone.” Nichols interpreted this as meaning dead, not
missing, although the word is obviously ambiguous. They
also testified that Kubsch said that Rick and Aaron had been
shot, a fact the police learned only the next day. (Kubsch pre-
sented testimony that DiDonato had learned both of these de-
tails several months later from a “gossiping waitress” and
then relayed them to Nichols. Kubsch III, 934 N.E.2d at 1153.)
Around 9:00 p.m., the police discovered Beth’s body con-
cealed in the basement. She, too, had been stabbed multiple
times, and her head and body had been wrapped in duct tape.
The police immediately brought Kubsch back in for a sec-
ond interview that evening. He did not appear surprised to
learn of Beth’s death. Asked several times by the officers to
8 No. 14-1898
tell them what happened, Kubsch chose instead to invoke his
right not to speak without an attorney. The police did not ar-
rest him for the murder immediately. They did, however, find
some additional shreds of inculpatory evidence: the wrapper
of a roll of duct tape of the type found on Beth in Kubsch’s
car; a roll of duct tape at the top of the basement stairs with a
cloth fiber consistent with the carpet of Kubsch’s car stuck to
it; a receipt for the purchase of three rolls of duct tape; and a
wadded-up receipt in Kubsch’s car from Beth’s credit-union
deposit that morning. There was no evidence of how many
brands of duct tape there are, or if the type or types found
were common. Kubsch explained that he often kept duct tape
in his truck for use at his rental properties. Kubsch I, 784
N.E.2d at 915 n.4. Finally, the knives used for the murders
came from a set in the kitchen.
Despite all this, the police waited three months before ar-
resting Kubsch. One additional clue seems to have prompted
their action: a person named Tashana Penn Norman told
them that she and her boyfriend overheard a person saying
that he had “hurt[ ] a little boy,” and she identified Kubsch as
the speaker.
Kubsch was arrested on December 22, 1998, and charged
with all three murders. The state’s theory was that Kubsch
killed Beth at the house between 1:53 and 2:51 p.m., intending
to collect the insurance money, but that just as he was killing
Beth, Rick and Aaron showed up, and so he murdered them,
too. In that connection, in an attempt to explain the lack of any
blood or other physical evidence on Kubsch’s clothes or in his
truck, the state hypothesized that Kubsch showered and
changed his clothes at the house after committing the mur-
ders and then left for Michigan. Kubsch III, 934 N.E.2d at 1153.
No. 14-1898 9
Kubsch’s theory of defense was based on actual innocence.
As the Indiana Supreme Court noted in Kubsch I, he main-
tained that he “was in Michigan picking up his son at the time
of the murders and that Brad Hardy, a lifelong friend of
Kubsch, committed the murders.” 784 N.E. 2d at 912. This was
not a fanciful theory: Hardy was charged with assisting a
criminal and conspiracy to commit the three murders at issue
here. Id. at 912 n.1; Kubsch II, 866 N.E.2d at 731. The state
dropped the charges against Hardy after he testified under a
grant of immunity in Kubsch’s first trial. Kubsch II, 866 N.E.2d
at 731. Hardy’s lawyer was St. Joseph County Prosecutor Mi-
chael Dvorak, who was then in private practice, and who
prosecuted Kubsch’s second trial. The Indiana Supreme
Court rejected Kubsch’s argument that Dvorak had a conflict
of interest. The district court found this to be a reasonable out-
come, and Kubsch has not pursued the point in this court.
The federal district court judge who presided over
Kubsch’s habeas corpus proceeding described the case
against Kubsch as “entirely circumstantial. There was no eye-
witness, no DNA evidence, no fingerprint testimony, indeed
no forensic evidence at all that linked Kubsch to the mur-
ders.” Instead, there was what he called a “slow-moving ac-
cumulation of a glacier of circumstantial evidence,” princi-
pally “lies, inexplicable omissions, and inconsistencies” in
Kubsch’s own account of the event.
We have no doubt that a reasonable jury could have
viewed these facts as sufficient to convict Kubsch for the mur-
ders. The fact that the evidence was purely circumstantial is
of no moment: juries properly rely on circumstantial evidence
every day. But the jury never heard a critical additional piece
of evidence, which, if credited, would have permitted them to
10 No. 14-1898
find that the police had the wrong man. Because of its im-
portance, we now describe the omitted evidence in detail.
B
The critical evidence that was kept from the jury was vid-
eotaped testimony by a girl named Amanda (“Mandy”) Buck,
“who, according to the defense, would have testified that she
saw Aaron after 3:30 p.m. on the day of the murders.” Id. at
730. Mandy, who was nine years old at the time, was inter-
viewed immediately after the murders, on Tuesday, Septem-
ber 22, 1998. The interviewer was Detective Mark Reihl; the
interview took place in what appears to be a room in the po-
lice station. Mandy’s mother, Monica, was present through-
out and volunteered corroborating details from time to time.
We attach the full transcript of the interview as Appendix A
to this opinion.
After establishing some basic information, Detective Reihl
confirmed that Mandy was a fourth-grader at Lincoln School,
that she lived right across the street from Aaron and his dad
Rick, and that she and Aaron were “best friends.” She com-
mented that Aaron didn’t like Kubsch, because he would get
rough and punch too hard “and stuff like that.” She saw Aa-
ron frequently: “I always went over to his house. He always
came over to my house and like we like used to study for the
same spelling words. … And we would help each other on
homework and stuff.” When Reihl asked her when they got
out of school, she replied “two twenty.” She lived close to the
school, she said, just a five-minute walk away.
Detective Reihl then asked Mandy directly “Now, do you
remember last Friday,” meaning September 18, the day of the
murders. Mandy replied “yeah.” Reihl then asked her “did
No. 14-1898 11
they [meaning the Alphabet Academy, her daycare facility]
pick you up Friday?” Again, Mandy responded in the affirm-
ative, by nodding her head. Reihl then asked her to recount
what happened next. From there, Mandy said, her mother (as
she usually did) picked Mandy up to take her home,
“[b]etween three thirty and quarter to four.” Monica inter-
jected that on the day in question she “waited for [Monica’s]
mom and dad to get home, and I went and cashed my check
and came home.” Reihl then asked whether Monica noticed if
Rick was across the street. Monica replied “I didn’t pay no
attention. All I saw was Aaron.” Reihl repeated “You saw Aa-
ron?,” and Monica said “[m]mm hmm.” She did not remem-
ber if Rick’s truck was there.
Turning back to Mandy, Reihl asked again what time she
got home that day. Monica answered instead, repeating
“three thirty or quarter to four.” Mandy confirmed that she
saw Aaron then, and that she also saw “his dad,” who “was
coming from their living room into the kitchen to get some-
thing to drink.” She explained that she was able to see this
from her own house: “every day when I walk home I always
see Rick walk into the kitchen or walk into the restroom or
walk into his room.” Asked what kind of car Rick drove,
Mandy replied “[a] Chevy? He used to drive a Chevy until it
broke down.” She specified that it was a black, medium-sized,
“kinda short” truck. When Reihl asked “what was [Rick] driv-
ing Friday,” Mandy replied that because his truck had broken
down, he was driving a white truck that he had borrowed
from his brother, and that the white truck was at the house
when she got home from school that day.
Reihl next asked whether she saw Rick and Aaron leave
that afternoon. She answered, “Um, yeah, like I was on my
12 No. 14-1898
porch and, and they let me blow bubbles and I was blowin’
my bubbles, and I seen Rick pull out and leave.” She was not
sure what time they left, because she left her watch in her bag
after gym class, but she estimated it was a “medium” time af-
ter she got home. She then commented, without prompting,
that “it takes a pretty long time to get to [Aaron’s] mom’s
house.”
She then went into some detail about Aaron’s plans for the
weekend. “He said that he was going to his mom’s house Fri-
day, ‘cause he was gonna stay the night there to go to the field
trip Saturday. … You know he was, he—he wanted to go on
the field trip bad. … But by the time Saturday when we, when
we were on the bus and stuff, he was gonna be in our group,
and, um, he never showed up. He wasn’t there. And we didn’t
know why.” She went camping after the field trip and told
her grandmother after she returned that she had not seen Aa-
ron on the trip. On Sunday, she mentioned, her grandpa
“didn’t turn the [the TV] on … because he, he didn’t know it
was they got murdered Friday night.” Mandy learned about
the murders after a news crew came to her home while she
was at her karate lesson on Monday, the day before the inter-
view.
At that point, Reihl once again confirmed that he was ask-
ing Mandy about Friday: “So, Friday, after you got home,
they left just a little bit after when you got home, right?”
Mandy again said “yeah,” and confirmed that she saw the
two of them leave the house. No one was with them, she said,
and she explained that Rick “didn’t know if Aaron’s mom
was home yet so Rick was thinking if his mom’s not there,
then Wayne’s probably not there. So, he said, ‘I’ll just drive
you,’ and they just took off, pulled out and took off.”
No. 14-1898 13
Reihl then turned back to Monica and confirmed that she
cashed her paycheck on Friday, shortly after she came home
from work (around 3:50 p.m.). She said again that she had
seen Aaron, but not Rick, when she returned about 15 minutes
later, and (in response to Reihl’s question) she said that she
did not look to see if Rick’s truck was there. They discussed
what kind of truck Rick typically drove. By then, the inter-
view was winding down. Reihl asked Mandy yet again
whether she saw both Aaron and his father in the yard around
3:30 or 3:45 p.m., and she said yes. He asked whether “[t]hese
times that you’ve given me today, uh, these are pretty accu-
rate,” and Monica said, “Yeah, ‘cause I get off work at quarter
after three.” This was her daily routine. With that, the inter-
view ended.
A few days after Mandy’s interview, Reihl called Monica’s
place of employment and then her home, apparently in an at-
tempt to confirm yet again that both Mandy and Monica had
correctly recounted what happened and when it happened.
Reihl spoke to Mandy’s grandfather (“Lonnie”) and asked
him to find out if Mandy and Monica were certain about their
story. Lonnie called Reihl back and told him that the events
that Mandy and Monica had described had taken place on
Thursday, September 17, not on Friday, which had been the
exclusive focus of Reihl’s interview.
The prosecutors recounted at Kubsch’s trial that Monica
told the police that “her father was at her house on that Thurs-
day, and he later reminded her that it was Thursday instead
of Friday.” She said that she—Monica—had confused the
dates because she was so busy; she offered no reason why
Mandy would have confused them. Nor was there any effort
to explain away Mandy’s detailed comments about the timing
14 No. 14-1898
of the Saturday field trip and her subsequent camping trip,
karate lesson, and so on. At that early time, not a week after
the field trip, it would have been easy to confirm with the
school whether the trip took place on Saturday, September 19,
or Friday, September 18. (And even the trial evidence shows
Rick picking up Aaron at school between 2:20 and 2:35 p.m.
on Friday, strongly suggesting that there was no field trip that
day, and also undermining the state’s theory that the murders
were committed between 1:53 and 2:51 p.m., particularly if
the state’s theory that Kubsch had time to shower and change
clothes before leaving by 2:51 p.m. is credited.) In addition, it
would have been relatively easy to confirm when Monica was
paid and made her deposit, just as evidence had shown when
Beth visited her own bank.
Mandy was called to testify at the second trial, but she had
almost nothing to say. She claimed to have no memory of talk-
ing to the police or being interviewed by them in 1998. When
Kubsch’s lawyer attempted to use the transcript of the inter-
view to refresh her recollection and later to impeach her, the
prosecution objected and the court sustained the objections.
The court also refused to permit the use of the videotaped in-
terview as a recorded recollection, despite Mandy’s asserted
inability to recall anything about the interview.
II
The Indiana Supreme Court set aside Kubsch’s conviction
after his first trial; it affirmed the conviction and sentence
reached at the second trial, which took place in March 2005,
and so that is what is now before us. Kubsch had one and only
one defense to the three murder charges: actual innocence.
For the most part, his lawyers pursued this in the only way
they could, by attempting to impeach the state’s witnesses.
No. 14-1898 15
They also tried to call Mandy as a witness, either to testify
about her independent recollection of the events of September
18, 1998, or to provide a basis for the introduction of the vid-
eotape of her interview with Detective Reihl as a recorded rec-
ollection admissible under Indiana Rule of Evidence 803(5).
But they hit a brick wall. Mandy, by then 16 years old, testified
that she had no recollection either of seeing Rick and Aaron
on the afternoon of the murders, or even of being interviewed
by the police the following Tuesday. The trial court permitted
her to review the video recording of her interview, but she
maintained that this did not refresh her recollection. Kubsch’s
lawyers never tried to use Monica to provide foundation for
the recording, nor did they call her as a witness.
Indiana Rule of Evidence 803, like its federal counterpart,
sets out exceptions to the ordinary rule under which hearsay
evidence is not admissible. The exception that Kubsch’s law-
yers wanted to use was for recorded recollections. Rule 803(5)
provided at the time for the admissibility (for the truth) of:
[a] memorandum or record concerning a matter about
which a witness once had knowledge but now has in-
sufficient recollection to enable the witness to testify
fully and accurately, shown to have been made or
adopted by the witness when the matter was fresh in
the witness’s memory and to reflect that knowledge
correctly … .
In Kubsch II, the Indiana Supreme Court held that the final
element—that the recording reflects the witness’s knowledge
correctly—was the only one at issue, and that Kubsch had
failed to meet it. It interpreted the rule to require the witness
to be able to “vouch for the accuracy of the prior statement,”
citing Gee v. State, 389 N.E.2d 303, 309 (Ind. 1979). 866 N.E.2d
16 No. 14-1898
at 734. Mandy could not do so, given her asserted inability to
recall the interview at all. Id. at 735.
Kubsch’s lawyers also wanted to use the video to impeach
one statement that Mandy made at trial, namely, that “I prob-
ably didn’t see [Aaron], because I go straight [from] home to
the day care, and then I would go home afterwards.” Id. That
testimony directly contradicted her statements to the police in
the videotaped interview, and the Indiana Supreme Court
held that Kubsch should have been allowed to impeach her
on that matter. It found the error to be harmless, however, be-
cause it thought that other evidence would have supported
her version at trial (i.e. Lonnie’s testimony that she had the
days mixed up).
We have no reason to disagree with the state court on the
harmless nature of this failure to admit impeachment evi-
dence. Nor do we take issue with the holding that, as a matter
of Indiana law, Mandy’s inability to vouch for the accuracy of
her prior statement meant that it could not be admitted for the
truth under Indiana Rule of Evidence 803(5). But the last word
does not belong to state law; it belongs to the Due Process
Clause of the Fourteenth Amendment to the U.S. Constitu-
tion. The central question before us is thus whether, in these
circumstances, the state court rendered a decision contrary to,
or unreasonably applying, the Supreme Court’s decision in
Chambers.
III
The clash between ordinary evidence rules and constitu-
tional due process that the Supreme Court addressed in
Chambers is functionally identical to the one now before us.
Like our case, the issue arose in a murder prosecution. Like
No. 14-1898 17
our case, it involved the state’s hearsay rule as well as a sec-
ond rule—in Chambers the state’s voucher rule for witnesses,
in our case the state’s rule requiring vouching before recorded
recollections may be introduced. And like our case, the evi-
dence that was excluded pursuant to the state evidentiary rule
was vital to the defense, and the circumstances provided am-
ple assurance that the evidence was reliable. A closer look at
Chambers demonstrates these similarities.
On Saturday evening, June 14, 1969, in Woodville, Missis-
sippi, two policemen—James Forman and Aaron Liberty—
entered a local bar to execute a warrant for the arrest of a
young man named C. C. Jackson. The arrest did not go well;
a hostile crowd of 50 or 60 people tried to impede their work.
Liberty removed his riot gun while Forman radioed for assis-
tance. Three deputy sheriffs arrived, but Forman and Liberty
were once again stymied in their efforts to arrest Jackson.
During the commotion, five or six shots were fired. Forman
saw that Liberty had been shot several times in the back. He
died of his wounds, but before that, he managed to fire both
barrels of his riot gun into an alley. The second shot hit Leon
Chambers. Chambers fell and for a while was presumed
dead.
The general chaos made it hard to see who was shooting
whom. Forman could not tell, from his vantage point. One of
the deputies testified that he saw Chambers shoot Liberty; an-
other said that he saw Chambers “break his arm down” just
before the shots were fired. Shortly after the shootings, three
of Chambers’s friends realized that he was still alive and got
him to the hospital. Chambers was later charged with Lib-
erty’s murder. He pleaded not guilty and steadfastly main-
tained his innocence.
18 No. 14-1898
One of the people who helped Chambers get to the hospi-
tal was Gable McDonald. He left Woodville shortly after the
bar incident and moved to Louisiana. He later returned to
Woodville, however, where he confessed under oath to
Chambers’s attorneys that he was the one who shot Liberty.
He had also told a friend, James Williams, that he shot Lib-
erty. He was arrested based on these statements, but at a pre-
liminary hearing a month later, he repudiated his confession.
At the trial, Chambers pursued two lines of defense. First,
he tried to show that he was not the person who shot Liberty.
Second, and pertinent here, he tried to show that McDonald
was the guilty party. He was thwarted, however, in his efforts
to put before the jury all the evidence supporting that defense.
One witness testified that he saw McDonald shoot Liberty,
and another witness testified that he saw McDonald with a
gun immediately after the shooting. But Chambers wanted to
introduce much more powerful evidence: McDonald’s own
confessions. McDonald had admitted responsibility on four
separate occasions: in his sworn statement to Chambers’s
counsel, and three other times in private conversations with
friends. As the Supreme Court put it, Chambers failed be-
cause of “the strict application of certain Mississippi rules of
evidence.” 410 U.S. at 289. The first was Mississippi’s party-
witness or voucher rule, under which a party is not permitted
to impeach his own witness; the second was Mississippi’s
hearsay rule. Id. at 294. The Supreme Court found that these
rules, in combination, deprived Chambers of his federal due-
process right to present a defense.
The Court’s discussion of the hearsay rule guides us here.
The rule is based on “the notion that untrustworthy evidence
should not be presented to the triers of fact.” Id. at 298. Out-
No. 14-1898 19
of-court statements typically lack “conventional indicia of re-
liability,” such as the witness’s being under oath, being avail-
able for cross-examination, and being present so that the jury
is able to assess demeanor and credibility. Id. (Some cases
have questioned whether demeanor evidence is such a good
sign of truthfulness. See United States v. Pickering, 794 F.3d
802, 804–05 (7th Cir. 2015); Consolidation Servs., Inc. v. KeyBank
Nat. Ass’n, 185 F.3d 817, 821 (7th Cir. 1999). We leave that de-
bate for another day.) Exceptions to the hearsay rule exist
where reliability concerns are not present.
Significantly, the Chambers Court did not rest its holding
on any criticism of Mississippi’s rules of evidence, either the
voucher rule or the hearsay rule. Instead, it looked at the evi-
dence Chambers was proffering and found that “[t]he hearsay
statements involved in this case were originally made and
subsequently offered at trial under circumstances that pro-
vided considerable assurance of their reliability.” Chambers,
410 U.S. at 300. It highlighted the following facts: McDonald’s
confessions had been made spontaneously to close acquaint-
ances shortly after the murder; each statement was corrobo-
rated by other evidence; the sheer number of independent
confessions had some weight; they were self-incriminatory;
and McDonald was present in the courtroom and under oath.
Id. at 300–01.
The Court concluded with the following passage:
Few rights are more fundamental than that of an ac-
cused to present witnesses in his own defense. … In the
exercise of this right, the accused, as is required of the
State, must comply with established rules of procedure
and evidence designed to assure both fairness and re-
liability in the ascertainment of guilt and innocence.
20 No. 14-1898
Although perhaps no rule of evidence has been more
respected or more frequently applied in jury trials than
that applicable to the exclusion of hearsay, exceptions
tailored to allow the introduction of evidence which in
fact is likely to be trustworthy have long existed. The
testimony rejected by the trial court here bore persua-
sive assurances of trustworthiness and thus was well
within the basic rationale of the exception for declara-
tions against interest. That testimony also was critical
to Chambers’ defense. In these circumstances, where
constitutional rights directly affecting the ascertain-
ment of guilt are implicated, the hearsay rule may not
be applied mechanistically to defeat the ends of justice.
We conclude that the exclusion of this critical evi-
dence, coupled with the State’s refusal to permit
Chambers to cross-examine McDonald, denied him a
trial in accord with traditional and fundamental stand-
ards of due process.
Id. at 302.
Chambers was not a one-and-done opinion from the Su-
preme Court. To the contrary, the rule requiring state eviden-
tiary rules to yield to the defendant’s fundamental due-pro-
cess right to present a defense has arisen in many later cases.
Sometimes the Court has granted relief on that basis, and
sometimes it has found no due-process violation. Westlaw
shows that Chambers has been cited in 33 Supreme Court de-
cisions since it was handed down. We highlight only a few of
them to show how the rule as established in Chambers has
been applied over the years.
No. 14-1898 21
Six years after Chambers was decided, the Court decided
Green v. Georgia, 442 U.S. 95 (1979), by a per curiam opinion.
Like Chambers, Green was a murder case; like our case, it was
one in which the petitioner was under a sentence of death. At
the sentencing stage, the state court refused on hearsay
grounds to admit the testimony of Pasby, a witness who had
testified at Green’s co-defendant’s trial that the co-defendant
had killed the victim. The state then argued to the jury that in
the absence of direct evidence of the crime, it could infer that
Green participated directly in the murder from the fact that
more than one bullet entered the victim’s body. This applica-
tion of the state’s hearsay rule, the Court ruled, violated
Green’s due process rights:
The excluded testimony was highly relevant to a criti-
cal issue in the punishment phase of the trial … . [S]ub-
stantial reasons existed to assume its reliability. … The
statement was against interest … . Perhaps most im-
portant, the State considered the testimony sufficiently
reliable to use it against [the co-defendant], and to base
a sentence of death upon it.
Id. at 97. With that, the Court vacated the sentence and re-
manded for further proceedings.
Crane v. Kentucky, 476 U.S. 683 (1986), was another murder
case in which the Court found that the exclusion of evidence
pursuant to a state evidentiary rule violated the defendant’s
due process rights. This time it was not the hearsay rule; it
was a Kentucky rule under which, once a confession has been
found to be voluntary, the evidence supporting that finding
may not be introduced for any other purpose—in particular,
credibility. After acknowledging its traditional reluctance to
impose constitutional constraints on ordinary evidence rules,
22 No. 14-1898
and its recognition of the power of the states to exclude evi-
dence “through the application of evidentiary rules that
themselves serve the interests of fairness and reliability,” the
Court reaffirmed the due-process limitations on those princi-
ples and held that “the blanket exclusion of the proffered tes-
timony about the circumstances of petitioner’s confession de-
prived him of a fair trial.” Id. at 689–90. It went on as follows:
Whether rooted directly in the Due Process Clause
of the Fourteenth Amendment, Chambers v. Mississippi,
supra, or in the Compulsory Process or Confrontation
clauses of the Sixth Amendment, … the Constitution
guarantees criminal defendants “a meaningful oppor-
tunity to present a complete defense.” … We break no
new ground in observing that an essential component
of procedural fairness is an opportunity to be
heard. …That opportunity would be an empty one if
the State were permitted to exclude competent, reliable
evidence bearing on the credibility of a confession
when such evidence is central to the defendant’s claim
of innocence.
Id. at 690 (citations omitted). The Court came to the same con-
clusion the next year, in Rock v. Arkansas, 483 U.S. 44 (1987), in
which it held, in a manslaughter case, that Arkansas’s per se
rule excluding all hypnotically refreshed testimony infringed
impermissibly on the defendant’s right to testify on her own
behalf. Id. at 55–56, 61.
The last case we mention in which the Chambers rule was
applied to overturn the exclusion of critical evidence is Holmes
v. South Carolina, 547 U.S. 319 (2006), yet another murder pros-
ecution in which a sentence of death was imposed.
No. 14-1898 23
This time the Court considered a state evidence rule,
whose source was the decision in State v. Gregory, 16 S.E.2d
532 (S.C. 1941), under which a defendant may not introduce
proof of third-party guilt if the prosecution had introduced
“strong evidence” of the defendant’s guilt, including forensic
evidence. Holmes, 547 U.S. at 323–24. The state’s theory was
that in these circumstances the evidence suggesting a third
party’s guilt was not enough to raise a reasonable inference of
the defendant’s innocence. Id. at 324. The Court recognized,
as it had before, that “[s]tate and federal rulemakers have
broad latitude under the Constitution to establish rules ex-
cluding evidence from criminal trials.” Id. (citation omitted).
Nevertheless, it wrote, “[t]his latitude … has limits.” Id. It con-
tinued:
Whether rooted directly in the Due Process Clause of
the Fourteenth Amendment or in the Compulsory Pro-
cess or Confrontation Clauses of the Sixth Amend-
ment, the Constitution guarantees criminal defendants
a meaningful opportunity to present a complete de-
fense. … This right is abridged by evidence rules that
infringe upon a weighty interest of the accused and are
arbitrary or disproportionate to the purposes they are
designed to serve.
Id. (citations and quotation marks omitted). After reviewing
some of the cases, including Chambers, Rock, and Crane, in
which due process was violated by the exclusion of evidence
in the name of a state rule, the Court contrasted cases where
the state rule did not have the forbidden effect: “[W]ell-estab-
lished rules of evidence permit trial judges to exclude evi-
dence if its probative value is outweighed by certain other fac-
24 No. 14-1898
tors such as unfair prejudice, confusion of the issues, or po-
tential to mislead the jury.” Id. at 326. The South Carolina rule
before it, the Court concluded, was arbitrary and could not be
used to exclude the petitioner’s evidence. Id. at 331.
The cases in which Chambers has not required a state evi-
dence rule to be overridden fit the general pattern described
in Holmes. Thus, in Montana v. Egelhoff, 518 U.S. 37 (1996), the
Court considered a Montana rule limiting the use of volun-
tary intoxication evidence. The respondent, charged with
homicide, wanted to introduce evidence of his extreme intox-
ication. He did introduce it, but the jury was instructed that it
could not consider his condition in determining whether he
had the mental state required by the statute. Justice Scalia,
writing for a plurality, rejected the proposition that no rele-
vant evidence may ever be kept out of a trial. He found the
state’s rule to be consistent with the common law, and then
added some remarks about Chambers, which he labeled
“highly case-specific error correction.” Id. at 52. (plurality
opinion). Justice Ginsburg concurred in the judgment on the
ground that the state had redefined the mental-state element
of the offense. Id. at 57. (Ginsburg, J., concurring) Had it
adopted a rule to keep out relevant, exculpatory evidence, she
would have found that it offended due process. Id. Justices
O’Connor, Stevens, Souter, and Breyer would have found a
due-process violation. Id. at 61 (O’Connor, J. dissenting).
In Clark v. Arizona, 548 U.S. 735 (2006), the question con-
cerned an Arizona rule that was more substantive than pro-
cedural. Arizona had a rule restricting consideration of de-
fense evidence of mental illness and incapacity to its bearing
on a claim of insanity; it thus eliminated the significance of
this evidence for mens rea. As it had done in Egelhoff, the Court
No. 14-1898 25
(this time through a majority) held that the state rule did not
violate due process. Chambers was peripheral to its reasoning.
It quoted from Holmes, noting that while the Constitution pro-
hibits the exclusion of evidence under rules that serve no le-
gitimate purpose or are disproportionate to legitimate ends,
it does permit the exclusion of evidence if its probative value
is outweighed by factors such as prejudice, confusion, or po-
tential to mislead. Id. at 770. In so doing, the Court noted that
evidence of mental disease and capacity “is not being ex-
cluded entirely”; rather, the rule restricted the use of evidence
for a limited reason which satisfied “the standard of funda-
mental fairness that due process required.” Id. at 770–71.
Lastly, the Court found Chambers to be inapplicable in Ne-
vada v. Jackson, 133 S. Ct. 1990 (2013) (per curiam), in which
the question was whether a state statute that generally pre-
cludes the admission of extrinsic evidence of specific in-
stances of a witness’s conduct for purposes of attacking cred-
ibility could be applied. The Court found no constitutional
problem, either under the Due Process Clause or the Confron-
tation Clause, with the application of the state’s rule. Id. at
1992–94. Notably, the defendant’s crime in Jackson was sexual
assault, not murder.
We glean a number of lessons from the Chambers line of
cases. First, as Chief Justice Rehnquist pointed out in Gilmore
v. Taylor, 508 U.S. 333 (1993), the cases in which the Chambers
principle has prevailed “dealt with the exclusion of evidence
… or the testimony of defense witnesses, … [not] a defend-
ant’s ability to present an affirmative defense.” Id. at 343 (em-
phasis added). Second, we think it no accident that the cases
in which the Court has applied Chambers—Green, Crane, Rock,
26 No. 14-1898
and Holmes—have involved murder and often the death pen-
alty. Third, the proffered evidence must be essential to the de-
fendant’s ability to present a defense; it cannot be cumulative,
impeaching, unfairly prejudicial, or potentially misleading.
Fourth, as the Court put it in Chambers itself, the evidence
must be reliable and trustworthy. One, though not the only,
way that reliability and trustworthiness can be demonstrated
is to show that the evidence closely resembles evidence that
would be admissible under the state’s rules. Finally, the rule
cannot operate in an arbitrary manner in the case at hand. Ar-
bitrariness might be shown by a lack of parity between the
prosecution and defense; the state cannot regard evidence as
reliable enough for the prosecution, but not for the defense.
But that does not exhaust the ways of satisfying this criterion.
A refusal to consider corroborating circumstances, an unex-
plained departure from an established line of decisions, or an
assumption about the relative weight of evidence (as in Crane)
might also suffice.
IV
A
Although the Indiana Supreme Court did not have much
to say about Kubsch’s Chambers argument in its opinion on
direct review from his conviction at the second trial, it did
reach the merits of his claim. After finding that the videotaped
evidence was inadmissible under Indiana Rule of Evidence
803(5) because Mandy had not vouched for its accuracy, and
finding that the error in excluding it for impeachment pur-
poses was harmless, the Court dropped this footnote:
The availability of this testimony [i.e. that of Reihl
and Monica to the effect that they had mixed up Thurs-
day and Friday] is also the reason why Kubsch’s claim
No. 14-1898 27
that he was denied his federal constitutional right to
present a defense fails. See Chambers v. Mississippi, 410
U.S. 284, 302 (1973) (protecting defendant’s due pro-
cess right by recognizing an exception to application of
evidence rules where evidence found to be trustwor-
thy).
Kubsch II, 866 N.E.2d at 735 n.7. That is enough to trigger the
familiar AEDPA deference to the state court’s conclusion.
Kubsch’s application for a writ of habeas corpus must be de-
nied unless, as applicable here, the adjudication in state court
“(1) resulted in a decision that was contrary to, or involved an
unreasonable application of, clearly established Federal law,
as determined by the Supreme Court of the United States … .”
28 U.S.C. § 2254(d)(1).
The Supreme Court has elaborated on what this means.
There are two ways in which the “contrary to” part might be
violated: a state-court decision might arrive at a conclusion
opposite to that which the Supreme Court reached on a ques-
tion of law; or the state court might “confront[] a set of facts
that are materially indistinguishable from a decision of [the
Supreme Court] and nevertheless arrive[] at a result different
from [its] precedent.” Williams v. Taylor, 529 U.S. 362, 406
(2000). Under the “unreasonable application” clause, the writ
may not issue simply because the federal court concludes that
the state court erred. Woodford v. Visciotti, 537 U.S. 19, 24–25
(2003). Rather, the applicant must demonstrate that the state
court applied the Supreme Court’s precedent in an objectively
unreasonable manner. Id. at 25. “[A] state prisoner must show
that the state court’s ruling on the claim being presented in
federal court was so lacking in justification that there was an
28 No. 14-1898
error well understood and comprehended in existing law be-
yond any possibility for fairminded disagreement.” Harring-
ton v. Richter, 562 U.S. 86, 103 (2011). For good measure, the
Court added “[i]f this standard is difficult to meet, that is be-
cause it was meant to be.” Id. at 102.
On the other hand, the Court has never insisted on virtual
identity between its precedent and the new case. In Williams
v. Taylor, for instance, it said that “a state-court decision also
involves an unreasonable application of this Court’s prece-
dent if the state court either unreasonably extends a legal
principle from our precedent to a new context where it should
not apply or unreasonably refuses to extend that principle to
a new context where it should apply.” 529 U.S. at 407 (empha-
sis added). Panetti v. Quarterman, 551 U.S. 930 (2007), made
much the same point. The Court there held:
AEDPA does not require state and federal courts to
wait for some nearly identical factual pattern before a
legal rule must be applied. … Nor does AEDPA pro-
hibit a federal court from finding an application of a
principle unreasonable when it involves a set of facts
different from those of the case in which the principle
was announced. … The statute recognizes, to the con-
trary, that even a general standard may be applied in
an unreasonable manner.
Id. at 953 (citations and quotation marks omitted).
B
Our only remaining task is to apply the relevant law and
standards of review to Kubsch’s case. First, this case deals
with the total exclusion of relevant evidence, not with a limi-
tation on the way the evidence can be used. Second, this was
No. 14-1898 29
a murder case—indeed, one in which the death penalty was
being sought—and so the defendant’s interest in the evidence
was at its zenith. Third, the excluded evidence was easily the
strongest evidence on Kubsch’s only theory of defense—ac-
tual innocence. It was not cumulative, unfairly prejudicial,
potentially misleading, or merely impeaching. Finally, as
Chambers requires and as we now discuss in more detail, it
was unusually reliable.
Professors Wright and Graham identify four dangers that
have traditionally been thought to arise from hearsay evi-
dence: (1) defects in the declarant’s perception; (2) defects in
the declarant’s memory; (3) defective narration, on the part of
either the declarant or the witness; and (4) lack of sincerity or
veracity on the declarant’s part. 30 Charles Alan Wright &
Kenneth W. Graham, Jr., Federal Practice and Procedure
§ 6324 (1997). None of these is present to any significant de-
gree in Mandy’s video. As the transcript at Appendix A illus-
trates, Detective Reihl questioned her carefully and thor-
oughly, checking several times that she and her mother, Mon-
ica, had the right times and making it clear that his questions
pertained to Friday. See Appendix A, infra at 43 (“Okay. And
this is about what time again?”); at 51 (“Well, just so I got this
right then, Mandy, you got home at about three thirty, quarter
of four and you saw Aaron and his dad and that white truck
at his house?”); at 52 (to Monica) (“These times that you’ve
given me today, uh, these are pretty accurate?”). There is no
reason to think that Mandy and her mother would not have
been able to perceive events occurring in the house just across
the street from theirs, where Mandy’s friend “best friend” Aa-
ron lived.
30 No. 14-1898
The interview took place just four days after the murders,
on Tuesday, September 22, 1998, at 3:00 p.m. The chance of
identical defects in Mandy’s and Monica’s memories is close
to zero over that short time, and there is no reason to think
that they had coordinated their stories. It is also worth point-
ing out that their accounts throughout the interview corrobo-
rate one another on many critical details: the fact that Monica
picked Mandy up from the Alphabet Academy at the usual
time (between 3:30 and 3:45 p.m.); the fact that both of them
saw Aaron after they got home (and Mandy saw Rick, too);
and the fact that all this happened after Monica left work at
3:15 p.m.
No defect in narration—that is, the ability of the witness
to communicate her recollections of some past perception to
the trier of fact—exists, because the video ensured that the
trier of fact would have heard exactly what Mandy and Mon-
ica said. If there were defects in their original account, the
state would have had every opportunity to introduce evi-
dence to punch holes in their account. (Kubsch, of course, had
no reason to do this; he takes the position that their account is
accurate.) The state could, for instance, have subpoenaed
Monica’s bank to see when she made the deposit to which she
referred. If she did so on Friday, September 18, the accuracy
of the dating would have been corroborated. If, as the state
has speculated throughout these proceedings, she did so on
Thursday, September 17, that would have been powerful im-
peachment evidence for the state. The state could also have
secured evidence from Lincoln School that would have
pinned down the date of the field trip Mandy highlighted
during the interview. Mandy said that Aaron had told her
that “he was going to his mom’s house Friday, ‘cause he was
gonna stay the night there to go to the field trip Saturday.”
No. 14-1898 31
But, she continued, “by the time Saturday when we … were
on the bus and stuff, he was gonna be in our group, and … he
never showed up.” There is no hint in this that Aaron was also
going to go to his mother’s on Thursday.
Finally, no one has ever said that Mandy and Monica
lacked sincerity or veracity. The most the state, using Lonnie’s
evidence from the next week, ever said was that they were
mistaken. Had the evidence come in, the state would have
had a number of ways to demonstrate mistake, using the ob-
jective evidence we have just described.
The question in the end is not whether the Mandy vide-
otape was 100% reliable. If 100% reliability were the standard,
eyewitness testimony would never be used, Evidence Rule
803 would have to be repealed in its entirety, and prosecutors
could never prove their case beyond a reasonable doubt. Nor
is the question whether it was enough to require acquittal as
a matter of law. As we said earlier, even with this evidence in
the record, a rational jury could either acquit, if it found
Mandy’s and Monica’s accounts persuasive, or it could con-
vict, based on the circumstantial evidence chronicled in the
state court’s opinion. All we are saying is that the jury should
have been given the chance to evaluate this case based on all
the evidence, rather than on the basis of a truncated record
that omitted the strongest evidence the defense had.
In this regard, the fact that the video missed qualifying for
admission under Indiana Evidence Rule 803(5) by just a hair
is also important. All that was missing was Mandy’s recollec-
tion of the interview. No one argued that she was not the girl
depicted on the video; no one argued that there had been tam-
pering of the video. It is troublesome that the Indiana Su-
32 No. 14-1898
preme Court appeared to demand more in the way of vouch-
ing here than it has required in other cases. In Small v. State,
736 N.E.2d 742 (Ind. 2000), it upheld the trial court’s decision
to allow the prosecution to read relevant portions of a wit-
ness’s deposition even though, at trial, the witness could not
remember the answers she had given during the deposition,
and after reviewing the transcript still could not recall her
statements. Id. at 745. See also Impson v. State, 721 N.E.2d 1275,
1282–83 (Ind. Ct. App. 2000) (affidavit admitted where signed
shortly after attack, consistent with what affiant told another
person, even though affiant denied any memory of the attack
at trial); Flynn v. State, 702 N.E. 2d 741, 744 (Ind. Ct. App. 1998)
(recorded, out-of-court statement admitted under Rule 803(5)
because state showed at trial that declarant lacked recollec-
tion, that she had personal knowledge of the events in the
statement, and that she had made a full and complete state-
ment of the events according to an officer who took her state-
ment). Even if the record of Kubsch’s trial does not show a
lack of “parity” in the application of Rule 803(5) within
Kubsch’s own trial, these cases suggest a troubling lack of
consistency in the application of the rule.
One might criticize the video for lack of corroboration, but
that overlooks the fact that Monica’s statements corroborate
Mandy’s statements. If the state had wanted to undermine
their accounts, evidence was readily available to it (and we
can assume that it would promptly have turned to that evi-
dence, had the court allowed the video to be introduced). De-
tective Reihl was courteous to both Mandy and Monica, but
he circled back a number of times to ensure that their accounts
were consistent. Neither Mandy nor Monica was under oath,
but they gave their account in an official setting, at the police
department, knowing that it was being recorded. While this
No. 14-1898 33
might not be quite the assurance of truthfulness that a formal
oath might provide, it was a close substitute. Both Mandy and
Monica knew that they were being questioned in connection
with a triple murder and that their statements were testimo-
nial. We accept that Mandy was not available to be cross-ex-
amined, because she claimed to have no recollection either of
the event or of the interview with Detective Reihl. But hearsay
evidence typically involves a situation in which the out-of-
court declarant cannot be cross-examined. Nevertheless, the
Supreme Court in Chambers and the cases following it has said
that when hearsay is otherwise reliable, is critical to the theory
of the defense, and the case involves a murder prosecution,
due process requires its admission.
V
Chambers was decided 46 years ago; only ten years ago, in
Holmes, the Supreme Court reconfirmed its rule: “the Consti-
tution guarantees criminal defendants a meaningful oppor-
tunity to present a complete defense. … This right is abridged
by evidence rules that infringe upon a weighty interest of the
accused and are arbitrary or disproportionate to the purposes
they are designed to serve.” Holmes, 547 U.S. at 324 (citations
and quotation marks omitted). In other words, due process
demands that evidence rules must be overridden in a narrow
set of circumstances. The facts of Kubsch’s case parallel so
closely the facts of Chambers, Green, Crane, and Holmes, that a
failure to apply those cases here would amount to an unrea-
sonable application of law clearly established by the Supreme
Court.
Nothing that the Supreme Court has said, and nothing we
say, means that the hearsay rule will never bar the admission
of video evidence. In the years since Chambers, neither the
34 No. 14-1898
hearsay rule nor the other evidentiary rules the Court has con-
sidered have wound up in the wastebasket. Only if all of the
factors the Court has specified, and we have described, come
together must the evidence rule yield. Due process requires
no less.
We thus conclude that the Indiana Supreme Court’s con-
clusion that Chambers did not require the admission of this
critical evidence was either contrary to, or an unreasonable
application of, the Chambers line of Supreme Court precedent.
We therefore REVERSE the judgment of the district court and
REMAND for issuance of the writ of habeas corpus, unless the
state within 120 days takes steps to give Kubsch a new trial.
No. 14-1898 35
APPENDIX A
Transcript of Police Interview with Monica and Mandy Buck
September 22, 1998
Det. Mark Reihl: [Inaudible] stepped out for a minute. I’ll go
ahead and start asking you a couple questions. Okay, and the
time is now three o’clock PM. And, today is September the
twenty-second, nineteen ninety-nine—nineteen ninety-eight.
And Mandy, is it M-a-n-d-y?
Mandy: Uh huh.
Reihl: M-a-n-d-y. Buck. B-u-c-k?
Mandy: Uh huh.
Reihl: And you’re how old?
Mandy: Nine.
Reihl: Your birthdate is?
Mandy: Ninety-eight. Nineteen ninety-eight. Oh, nineteen
eighty-nine.
Reihl: This is nineteen ninety-eight.
Mandy: Nineteen eighty-nine.
Reihl: What month were you born?
Mandy: February.
Reihl: February. What day?
Mandy: Eighth.
Reihl: Nineteen eighty-nine.
Mandy: Yeah.
36 No. 14-1898
Reihl: Alright.
Mandy: But you can ask my mommy on that. I think so.
Reihl: Oh, I’m pretty sure, all right? You’re pretty intelligent.
I think you know.
Mandy: Yeah, I think that, yeah yeah yeah.
Reihl: Mandy was born February the eighth?
Monica: Yeah.
Reihl: Nineteen eighty-nine?
Monica: Mmm hmm.
Reihl: Okay.
Mandy: Cool, I got it right.
Reihl: See, you got it right. Okay. And your mother’s name
is Monica?
Mandy: Uh huh.
Reihl: M-o-n-i-c-a? Correct me?
Monica: Yeah.
Reihl: Buck. And you live at thirteen twenty East Indiana in
South Bend.
Mandy: Uh huh.
Reihl: And your home phone is two three three, seven seven
three seven?
Mandy: Two three three seven seven three seven. Yep.
Reihl: Right. And you go to Lincoln School?
Mandy: Yeah.
Reihl: And you’re in which grade? Fourth?
No. 14-1898 37
Mandy: Yeah.
Reihl: Okay. How’s school this year?
Mandy: Umm, good, even though I have the teacher that, um,
is the Wicked Witch of the West, she’s fine. She’s okay.
Reihl: Well sometimes they gotta be like that so you kids will
listen.
Mandy: Yeah.
Reihl: Okay. Well, the reason you’re here is that you live right
across the street—
Mandy: From Aaron?
Reihl: From Aaron and his dad Rick.
Mandy: Yeah.
Reihl: Okay. And you and Aaron were pretty good friends,
huh?
Mandy: Best friends, yeah.
Reihl: Best friends?
Mandy: [Nods head]
Reihl: How long have you known Aaron?
Mandy: I don’t know. I think he moved there in like the be-
ginning of May I think. Just beginning. I don’t know. I never
kept track of it. I don’t know. ‘Cause he told me one day and
then I just forgot.
Reihl: Oh, that’s okay.
Mandy: I can’t remember I think—
38 No. 14-1898
Reihl: Time just goes by so fast, doesn’t it? And you said that
Aaron used to talk sometimes about things that made him
sad?
Mandy: Mmm hmm. [Nods head]
Reihl: Made him upset?
Mandy: Right, and like he, he he wished his mom didn’t
break up with his dad and like go with Wayne. He was like,
he didn’t like Wayne.
Reihl: Aaron didn’t like Wayne?
Mandy: No.
Reihl: Well how come?
Mandy: Um because, like, he would get rough with him and
stuff and punch him too hard and stuff like that.
Reihl: Was it because—did he ever say was it because Wayne
was mad at him or were they just playing?
Mandy: He never said, he never said why he didn’t like him
he just said like, he just said he just didn’t like him because
Wayne was just like too rough and stuff.
Reihl: Okay. Did he ever say if Wayne ever was rough with
his mom?
Mandy: No.
Reihl: You didn’t talk about that?
Mandy: No.
Reihl: Okay. What else did you guys talk about?
Mandy: Um, we talked about like, why he moved here and
like what we wanted to be when we got older and, um, who
No. 14-1898 39
are our friends and where we used to live and, like, and I in-
troduced him to my parents; he introduced me to his dad.
Then we just became best friends.
Reihl: That’s great.
Mandy: I always went over to his house. He always came
over to my house and like we like used to study for the same
spelling words. He’d give me my spelling words and I would
give him his spelling words. And we would help each other
on homework and stuff. We were pretty good friends.
Reihl: That’s, that’s wonderful.
Mandy: We got along really good.
Reihl: He’s a pretty good kid, huh?
Mandy: Mmm hmm. [Nods head]
Reihl: Smart?
Mandy: Uh huh. [Nods head] He knew, he knew his times
pretty good. He could, he could just do ‘em in a flash. He
was pretty good at ‘em. He’s a lot better than me.
Reihl: Did you, did you say you used to walk to school with
him sometimes?
Mandy: Uh no, I never walked.
Reihl: Oh, you never did.
Mandy: No. I see—I seen him walk to school.
Reihl: Uh-huh.
Mandy: I never walked to—I never walked to school or to my
house alone.
Reihl: Okay, and how would he get home?
40 No. 14-1898
Mandy: Um, usually some, if he wasn’t grounded from his
bike would ride his bike home. He would walk home. His
dad would come and pick him up when he had his truck. Um,
Rick would walk to school and pick up Aaron. They would
walk back home together.
Reihl: Mmm hmm. And, and you guys get out of school at
what time?
Mandy: Two twenty.
Reihl: Two twenty. And how long does it take him to get
home do you think?
Mandy: Mmm probably like—we don’t live too far from Lin-
coln. All you gotta do is go straight and turn and you’re there.
Reihl: Oh.
Mandy: Probably like five minutes to get there.
Reihl: Uh-huh. Okay.
Mandy: If he was riding his bike it would only take him like
two minutes. But if he was walking it would probably take
him a pretty long time.
Reihl: Mmm hmm. Now, do you remember last Friday?
Mandy: Yeah.
Reihl: Okay. And you told me earlier that you go to the Al-
phabet Academy?
Mandy: Uh huh. [Nods head]
Reihl: And that they usually pick you up at school, right?
Mandy: Uh huh. [Nods head]
Reihl: Okay. And did they pick you up Friday?
No. 14-1898 41
Mandy: Uh huh. [Nods head]
Reihl: And you went straight to the Alphabet Academy?
Mandy: Uh huh. [Nods head]
Reihl: And say then you what, your mom picks you up from
there?
Mandy: Uh huh. [Nods head]
Reihl: Okay. And you said you picked her up about what
time?
Monica: Between three thirty and quarter to four.
Reihl: Okay. And you went straight home? Or where’d you
go?
Monica: I usually call down there and I watch her walk from
there down to our house. And then I waited for my mom and
dad to get home, and I went and cashed my check and came
home.
Reihl: Okay, when you got home at three thirty, um, did you
notice if Rick was at home across the street?
Monica: I didn’t pay no attention. All I saw was Aaron.
Reihl: You saw Aaron?
Monica: Mmm hmm.
Reihl: You don’t remember if Rick’s truck was there?
Monica: No.
Reihl: Okay. And, then Mandy you were telling me that
when you got home that was about what time?
Monica: From day care?
Reihl: Yeah.
42 No. 14-1898
Monica: That was around three thirty, quarter to four.
Reihl: Okay, and that’s when you saw Aaron?
Mandy: Uh huh. [Nods head]
Reihl: And you saw his dad?
Mandy: Uh huh. [Nods head] His dad, he, his dad was com-
ing from their living room into the kitchen to get something
to drink.
Reihl: Did you go over to Aaron’s house or you just saw him
from your house?
Mandy: I, I, um, when I walked, when I, every day when I
walk home I always see Rick walk into the kitchen or walk
into the restroom or walk into his room.
Reihl: I mean, did you see him from outside looking in or did
you actually go into the house?
Mandy: No, I um seen it from the outside ‘cause when ‘cause
I seen him go into the kitchen. When he came back he had a
drink in his—he had, um, some um—I don’t know what it
was. He had a drink in his hand but it was in a cup.
Reihl: Okay.
Mandy: Like usually pop, ‘cause they like, they like Storm a
lot. So, probably Storm.
Reihl: What, uh, what does Rick drive?
Mandy: A Chevy? He used to drive a Chevy until it broke
down.
Reihl: A Chevy what?
Mandy: [Eyes searching, no verbal response]
No. 14-1898 43
Reihl: Is it a car or a truck?
Mandy: Truck.
Reihl: What color?
Mandy: Black.
Reihl: Okay.
Mandy: It’s like, kinda short. I mean like it—did you see my
mom’s truck? Um, well, uh my mom’s truck, my mom’s
truck’s pretty big. His is probably a medium truck, you know.
Kinda short.
Reihl: What was he driving Friday? Did you see that?
Mandy: Um, his truck broke down before that. He was
drive—driving a white truck which was his brother’s. And
his brother had a car so his brother let Rick use the truck.
Reihl: Okay. Was that white truck at Rick’s house Friday?
Mandy: Yeah.
Reihl: When you got home from school?
Mandy: Yeah.
Reihl: Okay. And this is about what time again?
Monica: Three thirty, quarter to four.
Reihl: Okay, so between three thirty and quarter to four—
Mandy: Yeah.
Reihl: You saw—
Mandy: Aaron and Rick.
Reihl: Okay, at the house. Did you ever see ‘em leave?
44 No. 14-1898
Mandy: Um, yeah, like I was on my porch and, and they let
me blow bubbles. And I was blowin’ my bubbles, and I seen
Rick pull out and leave.
Reihl: Okay. Now how long, how long after—and this might
be hard to guess at—‘cause you probably don’t wear a watch,
do you?
Mandy: Well, until my watch, well, yeah I did but my watch
is in my bag and I—‘cause I had to take it off when we had
gym. I just take it off.
Reihl: So, about what time do you think they left their house,
if you had to guess?
Mandy: Um—
Reihl: I know it’s gotta be a hard question.
Mandy: Um—
Reihl: Was it very long after you got home?
Mandy: Mmm, medium. Because his mom lives pretty far
away, you know. And you know but I think it was like—I
don’t know.
Reihl: Okay.
Mandy: It was probably in like medium because you know it
takes a pretty long time to get to his mom’s house.
Reihl: Well why was he going to his mom’s house. I think he
told you, didn’t he?
Mandy: Um, I guess to just visit her.
Reihl: Okay, did he talk about going to his mom’s house?
Mandy: He said that he was going to his mom’s house Friday,
‘cause he was gonna stay the night there to go to the field trip
No. 14-1898 45
Saturday. So it was probably why, and Rick probably wanted
to stay a little while to talk. You know, he was, he—he wanted
to go on the field trip bad. So, they were gonna leave pretty
early to get to the school on time to go. But by the time Satur-
day when we, when we were on the bus and stuff, he was
gonna be in our group, and, um, he never showed up. He
wasn’t there. And we didn’t know why. But Saturday—Sun-
day when we got home with my cousins, um, ‘cause we go
camp—we went camping after the field trip, we just went, we
came back from the field trip, and my mom drove her truck
back to the, back up to our house and up to the camper and,
and my grandma goes, “Did you see Aaron?” and I’m like,
“No, he was supposed to be in our group, he wasn’t there.”
And then Sunday, um, my um, my day care teacher said they
showed it on TV but my grandpa didn’t get, my grandpa
didn’t turn it on there because he, he didn’t know it was they
got murdered Friday night. So, I mean, and then Monday, um,
Monday, Monday News Center 16 came to my house, and I
was at karate ‘cause I, I had practice. When we came home
my grandma said News Center 16 just, just came to our house
like, probably a while ago.
Reihl: So you didn’t get a chance to talk to him then, huh?
Mandy: No.
Reihl: So, Friday, after you got home, they left just a little bit
after when you got home, right?
Mandy: Yeah.
Reihl: And you saw ‘em leave?
Mandy: Yeah. He pulled out.
46 No. 14-1898
Reihl: And they were just together, Rick and Aaron, nobody
else with ‘em?
Mandy: No one else was with them, just Aaron and Rick.
Reihl: Okay.
Mandy: ‘Cause Rick, ‘cause Aaron’s mom— He didn’t know
if Aaron’s mom was home yet so Rick was thinking if his
mom’s not there, then Wayne’s probably not there. So, he
said, “I’ll just drive you,” and they just took off, pulled out
and took off.
Reihl: Okay.
Mandy: And—
Reihl: Monica, Monica, I’m sorry.
Mandy: And Fri— and Thur—and when I was playing with
them—
Reihl: Mmm hmm.
Mandy: There was, he had some clothes laying on his, laying
on his on their swing on the front porch. Um, he had a whole
bunch of clothes laying on there and I, I didn’t know what
they were for. You know, I thought he was gonna spend the
night there Saturday and Sunday, come home Monday. Um,
Sunday’s rolling around and he wasn’t there. Saturday, Sat-
urday the field trip, he wasn’t there.
Reihl: Monica, you said something back at your house when
I was talking to you about um, you said you’d cashed your
check.
Monica: Yeah.
Reihl: Friday?
No. 14-1898 47
Monica: Yeah.
Reihl: And that was about what time? Was that after you
come home from work?
Monica: Shortly after I came home from work.
Reihl: Okay. And, what time do you think that was?
Monica: Let’s see. Probably about ten minutes till four.
Reihl: Okay. So then you got home then about—how long
were you gone to cash the check?
Monica: Probably about fifteen minutes.
Reihl: Okay, and when you got home, that would have put it
a little after four o’clock? And was Rick still at the house then?
Monica: I didn’t pay no attention. Like I said, all I saw was
Aaron. I really didn’t look to see if Rick’s truck was there.
Reihl: Well, Aaron was still there when you got back after
you cashed your check?
Monica: Yeah.
Reihl: Okay. And you don’t remember if that truck was in
the—
Monica: Nuh uh, I didn’t pay no attention.
Reihl: Okay, um— You said something, too, didn’t you about
you overheard something one time a couple months ago.
Monica: Yeah. I don’t, like I said, I don’t know who the
woman was. But he was standing, they were standing in their
driveway. And, well he was standing in the driveway. She
was sitting in the truck. And, uh, I couldn’t hear what she was
saying, but he was, you know, he was saying the F-word, and
48 No. 14-1898
F him, he don’t scare me, and he was just going on and on and
on. And then he, then she left, and he just went into the house.
Reihl: This truck, what did it look like?
Monica: It was a, it was a little black truck.
Reihl: Do you know, do you know your vehicles? Do you
know the difference between a—
Monica: Well, the lettering on the back was kinda, on the back
of it was kinda like, rusted like, and you couldn’t really tell
what kind of car it was—
Mandy: Um—
Monica: —what kind of truck.
Mandy: Aaron’s dad’s truck had Chevy right there. It was
just printed beautifully. It was gold and it was just right on
there. You could just read it, so it couldn’t have been Aaron,
Aaron’s dad’s truck, ‘cause Aaron’s dad’s truck was, but, it
was still there where he, it broke down. I mean Aaron’s
truck’s, dad’s truck was just beautiful. The Chevy was just—
Reihl: But was this was this his ex-wife? Was this—
Monica: I don’t know.
Reihl: —Elizabeth?
Monica: I don’t know who she was. Like I said, all I saw, all
I, I never seen the woman. You know, I, I just know that she
had blonde hair. Well, I seen her face, but she had blonde hair.
Reihl: Was she a passenger in the truck?
Monica: No. She was driving it.
Reihl: Okay.
No. 14-1898 49
Monica: And this was, then I saw her once a little while after
that. You know, like a, I don’t know, a couple weeks later.
And that was the last time I seen her.
Reihl: What was she driving then?
Monica: Same thing.
Reihl: This truck?
Monica: Mmm hmm. I don’t know, I don’t, like I said I don’t
know who she was.
Mandy: Aaron’s mom’s, mom has um, blonde hair.
Reihl: Mmm hmm. I was just trying to see if maybe you could
describe this truck. Was there anything, was it, was it a pickup
truck where it has the open bed in the back or was it all closed
up?
Monica: Uh, let me think. I think it was open. See, ‘cause the
one that that, ah, Aaron’s dad used to drive had the little
things that went down the side.
Reihl: Mmm hmm.
Monica: But it wasn’t all closed in. It just had like little, I don’t
know what you’d call ‘em, it went from the top all the way to
the back of the truck, and it was just a short thing. This one
was all open, I believe. I think it was.
Reihl: It was just like a regular pickup truck.
Monica: Yeah.
Reihl: Okay. So it wasn’t like a little sport utility vehicle?
Monica: No.
Reihl: Like you see like one of those Suzuki Samurais or
something like that?
50 No. 14-1898
Monica: No. It was—
Reihl: Kids drive a lot.
Monica: It was pretty rusted.
Reihl: Okay. All right. But you don’t know whether or not
that was his—
Monica: No I have no idea.
Reihl: His ex-wife Elizabeth or not? All right.
Monica: I just know that he was highly upset that day.
Reihl: Oh.
Monica: And she didn’t look too happy, and she left and he
went into the house.
Reihl: Okay.
Monica: Yeah, I don’t even, I don’t know who his ex-wife is.
I mean, it could have been her, but I, I don’t know.
Reihl: Okay. Was there anything else? I can’t remember ex-
actly what all we talked about at the house but, did you say
that, uh, I was thinking that you said that Aaron had made
some comments to you before, too, about—
Monica: Oh, he just told me the once.
Reihl: Oh.
Monica: He just told me one time that he doesn’t like his step-
dad. But, I just figured he was just being a kid.
Reihl: Yeah.
Monica: You know, “My mom and dad’s divorced but I really
don’t like this guy. I don’t want Wayne really to be with my
mom. I’d rather, you know, him and my mom be together—”
No. 14-1898 51
Reihl: Mmm hmm.
Monica: “—than my stepdad,” kinda thing. That’s all I
thought it was. So I just really didn’t pay no attention to it.
Reihl: Okay. Okay. All right. Well, just so I got this right then,
Mandy, you got home at about three thirty, quarter of four
and you saw Aaron and his dad and that white truck at his
house?
Mandy: Yes.
Reihl: And then, Monica, you got home from cashing that
check around four o’clock or a little after, and you saw them
both at the house, or at least you saw Aaron?
Monica: Yeah, I saw Aaron.
Reihl: Okay. But you never saw ‘em leave.
Monica: No. I was in the house by the time they left.
Reihl: Okay, and Mandy, you did see ‘em leave, but you don’t
know exactly when it was that they left?
Mandy: Yeah. I seen ‘em leave, but, you know I didn’t see no,
I didn’t see no bags in the truck. And when, when they left,
the clothes were still there.
Reihl: Okay. On the swing?
Mandy: Um, yeah. ‘Cause when his grandparents were there,
they picked up the clothes and just threw ‘em in the box.
Reihl: Okay.
Mandy: And we thought that he was moving, like he didn’t
like the neighborhood so he was moving. What we thought,
and I don’t know if it, I didn’t know if Rick and Aaron Friday
were gonna go look for a new house or go to his mom’s. I
52 No. 14-1898
didn’t know, I thought they were going to look for a new
house and then come back, and you know, and go. Like, then
go to his mom’s. But, I didn’t, I didn’t know.
Reihl: Okay. These times that you’ve given me today, uh,
these are pretty accurate?
Monica: Mmm hmm. Yeah, ‘cause I get off work at quarter
after three. And with the traffic and that, and sometimes the
South Shore comes by and you gotta wait for that.
Reihl: Mmm hmm.
Monica: So, yeah, pretty well.
Reihl: It’s pretty much a routine that you do every day?
Monica: Yeah.
Reihl: Every day that you work, that is?
Monica: Yeah. Sometimes on, sometimes I have to stay a cou-
ple minutes after, so, I get home a little later. And that was
just so happen to have been one of the days that was a little
bit later.
Reihl: Okay. All right. I, I don’t have any more questions that
I can think of at the moment. Do you have anything else that
you can think of? Maybe I overlooked, that I have over-
looked?
Monica: No. Do you?
Mandy: [Shakes head]
Reihl: I thank you very much for coming down. I’ll take you
back home now. The time is, uh, three twenty PM. [Pause] I
told you that would take you about fifteen, twenty minutes.
Mandy: [Pointing to ceiling] Is that your camera?
No. 14-1898 53
Reihl: It’s up there.
Mandy: Oh, there it is. I thought it was—it’s in that vent right
there.
[END OF INTERVIEW]
54 No. 14-1898
HAMILTON, Circuit Judge, joined by EASTERBROOK and
SYKES, Circuit Judges, dissenting. The Indiana courts ex-
cluded as evidence an unsworn, ex parte interview of a nine-
year-old witness who later disclaimed any memory of the in-
terview. That decision did not violate petitioner Kubsch’s con-
stitutional rights. The exclusion certainly was not an unrea-
sonable application of “clearly established Federal law, as de-
termined by the Supreme Court of the United States.” 28
U.S.C. § 2254(d)(1).
To overturn Kubsch’s three murder convictions, the en
banc majority has crafted a new rule so narrow and case-spe-
cific as to be good apparently only for this case: “Only if all of
the factors the Court has specified, and we have described,
come together must the evidence rule yield.” Ante at 34. That
qualification is a red flag signaling a decision in conflict with
§ 2254(d)(1). True, the majority has built its argument from
texts in the volumes of the United States Reports, working from
Chambers v. Mississippi, 410 U.S. 284 (1973), and its progeny.
But that line of cases requires careful balancing of many case-
specific factors, which the majority says must all point in the
same direction for a rule of evidence to yield. I disagree with
the majority’s new, case-specific rule, but the decisive point in
this habeas case is that that new rule is not compelled by those
precedents. Fair-minded judges can disagree with it.
While habeas relief does not require “virtual identity” be-
tween the current case and a Supreme Court decision, the
problem here actually runs much deeper. The majority has not
identified any case in any American jurisdiction where such
an unsworn, ex parte witness statement would even be admis-
sible as substantive evidence, let alone that the state courts’
No. 14-1898 55
exclusion of the statement here violated clearly established
constitutional law. I respectfully dissent.
The Supreme Court repeatedly reminds the lower federal
courts in habeas corpus cases that we must allow state court
decisions to stand unless “the state court’s ruling on the claim
being presented in federal court was so lacking in justification
that there was an error well understood and comprehended
in existing law beyond any possibility for fairminded disa-
greement.” Harrington v. Richter, 562 U.S. 86, 103 (2011). Ac-
cord, e.g., Woods v. Etherton, 578 U.S. —, 136 S. Ct. 1149 (2016)
(summary reversal; reasonable judges could disagree on
whether appellate counsel was ineffective); White v. Wheeler,
577 U.S. —, 136 S. Ct. 456 (2015) (summary reversal; reasona-
ble judges could disagree on whether judge properly excused
juror for cause); Lopez v. Smith, 574 U.S. —, 135 S. Ct. 1 (2014)
(summary reversal; Supreme Court case law did not clearly
establish right to relief).
The majority’s narrow rule conflicts with both specific
rules limiting hearsay evidence and the general principles
that underlie those rules. Most hearsay is inadmissible be-
cause it is less reliable than live testimony and therefore less
relevant in the search for truth. See Anderson v. United States,
417 U.S. 211, 220 (1974) (“The primary justification for the ex-
clusion of hearsay is the lack of any opportunity for the ad-
versary to cross-examine the absent declarant whose out-of-
court statement is introduced into evidence.”). As explained
below, the Chambers ruling itself was narrow and case-spe-
cific. The broader principles that underlie that ruling give
broad deference to authors of rules of evidence, but allow for
rare constitutional exceptions to those rules under compelling
circumstances. The guidance from those principles is general,
56 No. 14-1898
though, and does not compel a ruling in a particular case like
this one.
Note that the Supreme Court itself has never relied on the
Chambers line of cases to grant habeas relief. That fact alone
suggests that the majority’s result is not dictated by Supreme
Court precedent. Instead, the Court has summarily reversed
a grant of habeas relief where the court of appeals, like the
majority here, read Chambers too broadly. Nevada v. Jackson,
569 U.S. — 133 S. Ct. 1990 (2013). We should affirm the denial
of relief here.
On September 18, 1998, petitioner Wayne Kubsch mur-
dered his wife Beth, her ex-husband Rick Milewski, and their
son Aaron Milewski. Beth had been stabbed eleven times. Her
face and head were covered with duct tape. Her hands and
feet were also bound with duct tape. Aaron and Rick had also
been stabbed, and each had been shot in his mouth.
The case against Kubsch was circumstantial but powerful.
He had motive and opportunity. Numerous items of evidence
pointed in his direction. The murders were committed in the
basement of Kubsch’s home, which was locked after the mur-
ders. The only people who had keys were Kubsch, Beth, and
her other son who found Rick’s and Aaron’s bodies. The mur-
ders were committed with a knife from the kitchen. The duct
tape binding Beth matched a tape package in Kubsch’s car.
Cloth fiber from the tape roll matched the carpet of Kubsch’s
car. A receipt for purchase of the duct tape, dated three days
before the murders, was also found in Kubsch’s car. A kitchen
pan had Beth’s blood on it. It is not plausible that the killer
was a stranger who counted on tools found in the Kubsch
home—the knife, the pan, and the duct tape—to carry out the
murders.
No. 14-1898 57
In addition to this physical evidence, “most damning to
Kubsch was a series of lies, inexplicable omissions, and incon-
sistencies in what Kubsch told the police and later testified on
the witness stand, and these statements—in conjunction with
a few pieces of circumstantial evidence—are what almost as-
suredly got Kubsch convicted.” Kubsch v. Superintendent, No.
3:11CV42-PPS, 2013 WL 6229136, at *1 (N.D. Ind. Dec. 2, 2013).
Kubsch spoke with the police a few hours after the murders.
At that time, the bodies of Aaron and Rick had been discov-
ered, but Beth was still missing. Kubsch was calm. He ex-
pressed no concern about his missing wife’s safety. Before her
body was found, he told a friend and his wife that Beth was
“gone,” which both understood to mean that Beth was dead.
Even the police did not know that yet. And even if Kubsch’s
use of the word “gone” could be explained away as ambigu-
ous, Kubsch also told his friend that Aaron and Rick had been
stabbed and shot. Authorities did not find the gunshot wounds
until autopsies were conducted the next day.
As the district court summarized, Kubsch’s account of his
movements and communications the day of the murders
changed repeatedly. Every time the police confronted him
with new evidence contradicting his earlier stories, he con-
cocted new versions. (More detailed accounts of those
changes and contradictions can be found in the panel opinion,
Kubsch v. Neal, 800 F.3d 783, 790–92 (7th Cir. 2015), and in the
district court’s careful opinion, Kubsch, 2013 WL 6229136, at
*5–6.)
The jury convicted Kubsch of all three murders and rec-
ommended the death penalty. The judge sentenced Kubsch to
death. The Indiana Supreme Court affirmed on direct appeal.
58 No. 14-1898
The state courts denied post-conviction relief; the district
court denied habeas relief, as did the appellate panel.
The en banc majority now reverses the convictions and or-
ders a new trial for Kubsch based solely on the exclusion of
Amanda Buck’s recorded interview with the police four days
after the murders. Amanda’s statement was exculpatory. If the
statement were factually accurate, then Kubsch would be in-
nocent. The majority agrees that Amanda’s statement was not
admissible under Indiana evidence law. But Amanda’s rec-
orded interview is the only available information tending to
corroborate Kubsch’s claim of innocence. The majority finds
not only that its exclusion deprived him of his right to due
process of law, but also that no fair-minded judge could disa-
gree on the basis of U.S. Supreme Court decisions.
I find no error in the exclusion of Amanda’s statement, let
alone a violation of constitutional law clearly established by
Supreme Court decisions. Chambers and its progeny do not
show that the state court’s decision was “beyond any possibil-
ity for fair-minded disagreement,” Richter, 562 U.S. at 103.
Amanda’s statement was not under oath, not subject to cross-
examination, and not corroborated. 1
Chambers itself is the Supreme Court case closest to this
one, but the differences are so pronounced and important that
they belie the majority’s claim that Chambers clearly required
admission of Amanda’s statement. The issue in Chambers was
the admissibility of witness McDonald’s four confessions to
1
Amanda’s statement was disclosed to Kubsch and his attorneys. As
important as it now turns out to be for the majority, it is remarkable that
Kubsch’s first team of able and capital-qualified lawyers did not even try
to admit it during his first trial, in 2000.
No. 14-1898 59
the fatal shooting of Officer Aaron Liberty. One confession
was written and under oath. The other three were spontane-
ous statements to three different friends. McDonald testified
at trial and was available for cross-examination. McDonald’s
confessions were also corroborated by other witnesses. One
testified that he saw McDonald fire the fatal shot. Another
saw McDonald with a gun immediately after the fatal shot,
and a third knew that McDonald owned the type of gun used
in the murder. The state court had stopped Chambers from
impeaching McDonald, invoking the old “voucher rule” that
barred a party from impeaching his own witness. McDonald’s
confessions to his three friends were excluded as hearsay.
The Supreme Court reversed Chambers’ convictions,
holding that the combined effect of the voucher and hearsay
rules violated Chambers’ right to due process. 410 U.S. at 302–
03. The Court noted that declarations against interest have
long been treated as sufficiently reliable to qualify for an ex-
ception to the hearsay rule. Id. at 298–99. The Court also found
that the excluded confessions “bore persuasive assurances of
trustworthiness” that brought them “well within the basic ra-
tionale of the exception for declarations against interest” and
were “critical to Chambers’ defense.” Id. at 302. The Court
concluded: “In these circumstances, where constitutional
rights directly affecting the ascertainment of guilt are impli-
cated, the hearsay rule may not be applied mechanistically to
defeat the ends of justice.” Id. The combination of the limits
on impeachment and exclusion of the confessions led the
Court to hold that “under the facts and circumstances of this
case the rulings of the trial court deprived Chambers of a fair
trial.” Id. at 303.
60 No. 14-1898
That narrow “facts and circumstances” language indicates
that “Chambers was an exercise in highly case-specific error
correction.” Montana v. Egelhoff, 518 U.S. 37, 52 (1996) (plural-
ity opinion of Scalia, J.). There was a deeper principle at work,
but the principle is too general to mandate habeas relief in this
case. The principle was best articulated in Rock v. Arkansas:
rules of evidence restricting the right to present a defense can-
not be “arbitrary or disproportionate to the purposes they are
designed to serve.” 483 U.S. 44, 56 (1987). The Court later ex-
plained that it has struck down as “arbitrary” those re-
strictions that “excluded important defense evidence but that
did not serve any legitimate interests.” Holmes v. South Caro-
lina, 547 U.S. 319, 325 (2006).
This general standard does not readily decide individual
cases, let alone dictate their results so clearly as to support ha-
beas relief. The Chambers line of cases also recognizes that
“‘state and federal rulemakers have broad latitude under the
Constitution to establish rules excluding evidence from crim-
inal trials.’” Jackson, 133 S. Ct. at 1992 (summary reversal of
habeas relief), quoting Holmes, 547 U.S. at 324, quoting in turn
United States v. Scheffer, 523 U.S. 303, 308 (1998).
While the majority correctly identifies some similarities
between Chambers and this case, there are critical differences
on points the Court emphasized in Chambers itself. These dif-
ferences should foreclose habeas relief. Even if one can look
past the Court’s reliance on the combined effects of the voucher
and hearsay rules in Chambers, see 410 U.S. at 302–03, the reli-
able out-of-court confessions of witness McDonald are readily
distinguishable from Amanda’s recorded statement here.
Amanda’s statement lacked meaningful corroboration, and
she was not subject to cross-examination about her statement.
No. 14-1898 61
The unusual extent of corroboration was central to the rea-
soning in Chambers. McDonald’s four independent confes-
sions corroborated each other. They were also corroborated
by the testimony of other witnesses: one who saw McDonald
shoot the officer, another who saw him with a gun immedi-
ately afterward, and yet another who knew he had owned a
gun like the murder weapon and later replaced it with an-
other similar gun. Id. at 293 n.5, 300.
In this case, there is essentially no corroboration of
Amanda’s statement on the critical point, which is whether
Aaron and Rick were at their home alive and well between
3:30 and 3:45 p.m. on the day they were murdered. While
Amanda’s mother initially indicated that she also saw Aaron
at home that afternoon, she later corrected her statement. It is
easy to understand how Amanda and her mother could have
mixed up their dates. The sight of a neighbor at his house is
not the kind of unusual event likely to stick clearly in one’s
memory. In any event, the mother’s statement was never even
offered as evidence. It also could not have been admitted as
substantive evidence to corroborate Amanda’s statement. The
absence of meaningful corroboration of Amanda’s recorded
statement distinguishes this case from Chambers. See also Rice
v. McCann, 339 F.3d 546, 550 (7th Cir. 2003) (affirming denial
of habeas relief in part because state court found hearsay was
not corroborated).
The availability of cross-examination was also central to
Chambers: “if there was any question about the truthfulness of
the extrajudicial statements, McDonald was present in the
courtroom and was under oath. He could have been cross-ex-
amined by the State, and his demeanor and responses
weighed by the jury.” 410 U.S. at 301.
62 No. 14-1898
In this respect, as well, this case is quite different. Unlike
the declarant in Chambers, Amanda was unavailable for cross-
examination. She took the stand at trial briefly but testified
that she did not remember being interviewed by the police or
what she said to them. “A declarant is considered to be un-
available as a witness if the declarant … testifies to not re-
membering the subject matter[.]” Ind. R. Evid. 804(a)(3); Fed.
R. Evid. 804(a)(3).
Other circumstances here do not serve as a substitute for
cross-examination. During the recorded interview, Amanda
was never pushed on the critical details—the date and time
she saw Aaron and Rick at their home—or the possibility that
she might be mistaken. The interviewing officer was simply
taking her account as she spoke in an interview in the early
stages of the investigation. Amanda was not under oath, and
the interviewer did not test her story to see how certain and
accurate she might have been. His gentle questioning, which
was surely appropriate for his purpose at the time, was not
remotely like cross-examination of the sole alibi witness in a
triple-murder trial with stakes of life and death.
By way of comparison, when a witness is unavailable,
even former testimony is admissible under the rules of evi-
dence only if it is offered against a party who had both an op-
portunity and a similar motive to develop that witness’s testi-
mony by direct, cross-, or redirect examination. Ind. R. Evid.
804(b)(1); Fed. R. Evid. 804(b)(1).
If the State decides to undertake the daunting task of a
third trial of Kubsch nearly twenty years after the murders,
the majority’s decision will require that Amanda’s recorded
statement be admitted. The State will not be able to test its
No. 14-1898 63
accuracy through meaningful cross-examination. The prose-
cutor will have to question a witness who, as early as 2005,
did not even remember making the statement. See Fed. R.
Evid. 804(a)(3) advisory committee note (“the practical effect”
of lack of memory “is to put the testimony beyond reach”); 2
McCormick on Evidence § 253 (7th ed.) (declarant who does not
remember the subject matter of her testimony “is simply un-
available by any realistic standard”).
In short, Amanda’s unsworn, uncorroborated, and ex parte
statement simply is not comparable to the McDonald confes-
sions that were excluded improperly in Chambers. And the
critical point in this habeas case is that even if a reader might
be persuaded that Chambers did not actually depend on the
corroboration and opportunity for cross-examination that the
Chambers Court itself emphasized, these differences show that
the majority’s extension of Chambers to this case is not beyond
fair-minded disagreement.
The majority also finds supposedly “close parallels” in the
Supreme Court’s decisions in Green v. Georgia, Crane v. Ken-
tucky, and Holmes v. South Carolina, but all are easy to distin-
guish. They do not support habeas relief in this very different
case.
In Green v. Georgia, 442 U.S. 95, 96–97 (1979), defendant
Green had been convicted of capital murder. At sentencing,
he offered his co-defendant’s hearsay admission that the co-
defendant had actually killed the victim. That same statement
had been admitted as reliable enough to justify the co-defend-
ant’s death sentence. In Green’s case, though, the state courts
excluded the same statement. The Supreme Court rejected
this unfair asymmetry, but there is no such unfair asymmetry
64 No. 14-1898
here. The prosecution could not have used Amanda’s rec-
orded statement if it had been inculpatory. Cf. Crawford v.
Washington, 541 U.S. 36, 68–69 (2004) (confrontation clause vi-
olated where prosecution used witness’s testimonial state-
ment “despite the fact that [defendant] had no opportunity to
cross-examine her”).
Crane v. Kentucky, 476 U.S. 683, 691 (1986), offers no addi-
tional support for the majority. Defendant Crane presented
evidence about the length and manner of the interrogation
that led to his confession. He wanted to show that the circum-
stances made his confession unreliable. The evidence was
competent and properly admissible, except for one unusual
substantive rule of state law. After a court had found a confes-
sion voluntary, the rule excluded otherwise competent and
admissible evidence about the circumstances of the confes-
sion. The violation of the defendant’s rights was so clear that
the Court could not decide whether to base its ruling directly
on the due process clause under Chambers or on the compul-
sory process or confrontation clauses of the Sixth Amend-
ment. Id. at 690. The Court emphasized that the evidence was
“competent, reliable evidence bearing on the credibility of a
confession.” Id. That ruling on otherwise admissible evidence
is not comparable to the state court ruling here, which applied
a common rule of evidence to exclude hearsay.
The majority also finds a “close parallel” with Holmes v.
South Carolina, 547 U.S. 319, 330 (2006), where the defendant
used the familiar tactics of attacking the reliability of the
state’s forensic evidence and offering evidence that someone
else committed the murder. The state courts applied a unique
rule of state law that barred the defendant from introducing
No. 14-1898 65
evidence of third-party guilt when the prosecution had intro-
duced forensic evidence that, if credited, was strong proof of
the defendant’s guilt. That circular logic had been applied to
bar the defense from offering otherwise admissible evidence.
The Supreme Court held that the unique rule was arbitrary
and unconstitutional. Id. at 331. At the same time, however,
the Court made clear how unusual the case was, noting that
“[s]tate and federal rulemakers have broad latitude under the
Constitution to establish rules excluding evidence from crim-
inal trials.” Id. at 324, quoting Scheffer, 523 U.S. at 308, and cit-
ing Chambers and Crane.
The odd and unfair state-court rules in Green, Crane, and
Holmes simply are not comparable to the Indiana court’s rou-
tine application of Rule 803(5) in Kubsch’s case, a rule that is
consistent with federal law and many other states’ rules of ev-
idence. Again, the majority has not identified any case in any
American court that has admitted such an unsworn and ex
parte interview as substantive evidence when the witness was
not available for cross-examination.
Toward the end of its opinion, the majority makes two ob-
servations about Indiana evidence law that warrant brief com-
ment. First, the majority suggests that the video recording of
Amanda’s interview “missed qualifying for admission under
Indiana Evidence Rule 803(5) by just a hair.” Ante at 31. The
video “missed” because Amanda was unable to vouch for its
accuracy, where at least her claim of accuracy would have
been subject to cross-examination. The vouching requirement
is not a technicality. It ensures that the hearsay exception does
not swallow the rule. Cases should be decided based on testi-
mony to the jury, not recorded ex parte interviews.
66 No. 14-1898
After this en banc decision, however, trial courts in Indi-
ana and elsewhere may hesitate to enforce the hearsay bar
and other settled evidentiary rules when confronted with po-
tentially exculpatory but plainly inadmissible evidence. De-
fense counsel now have a solid argument, that such evidence
should be placed before the jury on expanded Chambers
grounds. Trial judges reading the majority’s opinion might
say no on the theory that the ruling here is so narrow and
case-specific. But that’s what the Supreme Court said in Cham-
bers, too. If cautious trial courts accept the new defense argu-
ment based on Kubsch, the integrity of the criminal trial pro-
cess will be undermined. Trials should be decided based on
admissible evidence from the witness stand, not ex parte state-
ments by non-parties in low-pressure settings, especially
where those non-parties are not available for later cross-ex-
amination.
The majority also suggests the Indiana courts treated
Kubsch unfairly based on a “troubling lack of consistency in
the application” of Rule 803(5). Ante at 32. The cases the ma-
jority cites do not support the criticism. The only Indiana Su-
preme Court decision cited, Small v. State, 736 N.E.2d 742, 745
(Ind. 2000), allowed admission of the witness’s deposition tran-
script. Such use of prior testimony is routine. See Fed. R. Evid.
804(b)(1) (allowing use of former testimony of unavailable
witness when offered against party who had opportunity and
similar motive to develop testimony); Ind. R. Evid. 804(b)(1)
(same). Small relied on Rule 803(5), but there was no indica-
tion that the witness lacked a memory of giving the deposi-
tion (as Amanda lacks a memory of her recorded interview).
No. 14-1898 67
Rather, like many witnesses, the witness in Small did not re-
member her specific deposition answers. 2
In another interesting rhetorical device, the majority at-
tempts to shift to the State the burden of disproving Amanda’s
statement, suggesting for example that the State could have
subpoenaed the mother’s bank for her deposit records. Ante
at 30. With respect, that was not the State’s burden when the
defense could not support the admissibility of the unsworn,
uncorroborated, ex parte witness interview. If the majority’s
decision stands, the State will now have to dig into those de-
tails nearly twenty years after the fact.
Finally, it is clear that the majority’s decision is driven in
large part by the life-and-death stakes in this case. See ante at
2, 28–29, 34. The stakes may make this case hard on judges,
but they do not change the rules of evidence, nor do they jus-
tify a departure from ordinary deference under § 2254(d)(1).
See White v. Wheeler, 577 U.S. at —, 136 S. Ct. at 462 (“this
Court again advises the Court of Appeals that the provisions
2 The majority also cites Impson v. State, 721 N.E.2d 1275, 1282–83 (Ind.
App. 2000), a pre-Crawford case that dealt with statements by a victim of
domestic violence who was a reluctant witness. Her earlier statements
bore such strong indications of reliability that the state court found no
prosecutorial misconduct in efforts to impeach her exculpatory testimony
in her husband’s trial. The majority also cites Flynn v. State, 702 N.E.2d
741, 744–45 (Ind. App. 1998), another pre-Crawford case where a witness—
a passenger in the defendant’s getaway car—gave statements to police at
the scene of the defendant’s arrest. The defendant had the opportunity to
cross-examine her in her deposition, in a pretrial hearing, and at trial. Un-
der those circumstances, the state court held that a taped statement by the
witness was admissible under Rule 803(5). The indicia of reliability in
Flynn were plainly not present here. In any event, the rulings in both cases
would need further consideration after Crawford.
68 No. 14-1898
of AEDPA apply with full force even when reviewing a con-
viction and sentence imposing the death penalty”).
Exclusion of reliable, critical, and admissible evidence is
improper even if the result is “only” years or a lifetime in
prison. By the same token, exclusion of inadmissible evidence
is proper even when—especially when—the stakes are higher.
Exclusion of such evidence is proper no matter which side of-
fers it.
The rules of evidence, whether in codes or case law, inevi-
tably pose a risk of excluding some reliable and probative ev-
idence in some cases. Our criminal justice system is not infal-
lible, but the rules of evidence have evolved to try to improve
accuracy and fairness. The residual risk of error in capital
cases is deeply sobering for all of us with roles in the criminal
justice system. That risk offers a powerful policy argument
against the death penalty. It does not provide a reason to dis-
regard rules of evidence that apply to both sides and have
been designed to ensure fair and reliable evaluation of evi-
dence. The majority’s new, narrow, and case-specific excep-
tion is not compelled by Supreme Court precedent and does
not support habeas relief here.