7th Circuit Court Orders Issuance Of Writ Of Habeas Corpus For Convicted MurdererOlivia Covington for www.theindianalawyer.comThe full 7th Circuit Court of Appeals has ordered that writ of habeas corpus or a new trial be ordered for a man convicted of three murders and sentenced to death, finding that state courts incorrectly omitted a key piece of evidence in the defense’s case.In the case of Wayne Kubsch v. Ron Neal, 14-1898, Wayne Kubsch was convicted in the 1998 murders of his wife, Beth Kubsch, Rick Milewski and Aaron Milewski, Rick Milweski and Beth Kubsch’s son, in Mishawaka. Kubsch was sentenced to death as a result of his convictions.While the 7th Circuit Court wrote in its Friday opinion that the jury in the case had correctly relied on circumstantial evidence to convict Kubsch of the murders, the court also wrote that one piece of evidence that was omitted could have been used to prove Kubsch’s innocence. The evidence was a videotaped testimony of Amanda Buck, a 9-year-old girl who said in the video that she saw Aaron Milewski at 3:30 p.m. on the day of the murders, which would have undermined the state’s theory that the murders were committed between 1:53 p.m. and 2:51 p.m.Buck was called to testify at a second trial in the case in 2005, but she claimed to have no memory of the videotaped interview with police. Kubsch’s lawyer attempted to use the transcript of the interview to refresh Buck’s memory and later to impeach her, but the prosecution objected, and the court sustained the objections. The court also refused to permit the use of Buck’s interview as a recorded recollection.After direct appeals and post-conviction proceedings in state courts, Kubsch filed for habeas corpus relief in federal court. The district court and a panel of 7th Circuit judges found that the state court decisions passed muster, but that opinion was vacated when the full 7th Circuit Court decided to hear the case en banc.In its opinion handed down on Friday, the 7th Circuit Court wrote that the heart of Kubsch’s case went to whether the state had violated his rights to due process under the 14th Amendment by rendering a decision contrary to the U.S. Supreme Court’s decision in the case ofChambers v. Mississippi, 410 U.S. 284 (1973).In that case, the U.S. Supreme Court held that, “Few rights are more fundamental than that of an accused to present witnesses in his own defense. … 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.”In applying Chambers to Kubsch’s case, the 7th Circuit Court wrote that the excluded recording of Buck’s testimony was the strongest evidence in Kubsch’s defense based on actual innocence and, asChambers requires, was unusually reliable.If a jury had been allowed to hear Buck’s testimony or that of her mother, the circuit court wrote that they could have reasonably acquitted or convicted Kubsch.“All we are saying is that the jury should have been given the chance to evaluate the case based on all the evidence, rather than on the basis of a truncated record that omitted the strongest evidence the defense had,” the court wrote. “The facts of Kubsch’s case parallel so closely the facts of Chambers … that a failure to apply those cases here would amount to an unreasonable application of law clearly established by the Supreme Court.”The 7th Circuit Court reversed the district court’s judgment and remanded the case for the issuance of a writ of habeas corpus, unless the state takes steps to give Kubsch a new trial within 120 days.However, Judges David Hamilton, Frank Easterbrook and Diane Sykes dissented, writing in a separate opinion that the en banc majority had “crafted a new rule so narrow and case-specific as to be good apparently only for this case.”“The residual risk or error in capital cases is deeply sobering for all of us with roles in the criminal justice system,” Hamilton wrote. “That risk offers a powerful policy argument against the death penalty. It does not provide a reason to disregard rules of evidence that apply to both sides and have been designed to ensure fair and reliable evaluation of evidence.”St. Joseph County Prosecutor Ken Cotter told the Associated Press on Monday that he will consult with the victims’ families and review case files before determining how to proceed.Defense attorney Alan Freedman said Kubsch is relieved by the ruling and is awaiting the prosecutor’s decision.FacebookTwitterCopy LinkEmail
Ocean City Sailing Foundation offers classes beginning June 25, to teach kids and adults how to become sailors.(Courtesy Ocean City Sailing Foundation) By Maddy VitaleAll you need is a towel, a water bottle and a love of the water to start your journey to become a sailor.Classes begin June 25 and run through Aug. 25 at the Ocean City Sailing Foundation at the Bayside Center, 520 Bay Ave., where top instructors teach children and adults alike how to navigate the bays, the ocean and develop mariner skills that will last a lifetime.“We teach people ages eight to 80-plus,” said Director of the Ocean City Sailing Foundation Doug Mroz. “The great thing is, no experience is necessary.”Mroz, 33, of Ocean City, grew up sailing and racing, competing locally, regionally and nationally.Ocean City Sailing Foundation Director Doug Mroz gets some help with the mast from instructors and sisters Kailin Burns Cohen (left) and Reilly Burns Cohen.The foundation is a non-profit organization in existence since 2007. Mroz has been the director for three years, and at the foundation for five.Over the years, the program has grown, thanks to Mroz and his team. During a typical summer, the classes fill up to anywhere from 200 to 220 students.“The great thing is there is no experience necessary,” Mroz explained.The foundation offers a variety of boats to choose from, ranging from 6 feet to 18 feet, depending on a student’s interest and skill level.Mroz, who teaches business and special education at Cedar Creek High School in Egg Harbor City and is the assistant crew coach there, said he loves teaching sailing classes.He also thinks he’s found the right recipe to keep sailing students interested, most likely a skill he learned as a school teacher.Children forge friendships and come back for classes year after year. (Courtesy Ocean City Sailing Foundation)“You have to make sailing fun for kids to continue with it,” he said. “We really have tried to do that. We play a lot of games. Games and swimming have to be involved to make it fun.”In a typical class week, students are introduced to the boats and the water. They have lessons on both land and the water, do warmup activities and games.“Some kids are sailing on their first day,” Mroz noted.Sometimes a student gets to go out alone in a boat, depending on his or her skill level and experience and the weather conditions.Mroz stressed that in sailing, everything is weather dependent. Conditions are studied throughout the day.“Safety is our number one priority,” he said. “We go over proper boat handling skills and safety procedures with the staff and students.”Reilly and Kailin Burns Cohen, sisters and instructors, get some help from Pat Leonardo, a former director of the sailing foundation.Mroz added that the staff is great. In addition to Mroz, there are five instructors.There is also someone he considers a true asset, Pat Leonardo, of Ocean View. He was the director before Mroz.“I called him and asked him to come back to help out,” Mroz said.John Parker, former president of the Ocean City Sailing Foundation, said Mroz is doing a “super job” as director.“He continues to do what Pat (Leonardo) started. Doug has continued to grow this program on the junior side and the adults side,” Parker said. “It is amazing how many adults come and see how their kids are doing and say, ‘I used to sail as a kid. I’d like some lessons.’”Leonardo was helping Mroz and sisters Kailin and Reilly Burns Cohen, who are instructors, get the boats ready Tuesday.Adults also enjoy classes at the Ocean City Sailing Foundation. (Courtesy Ocean City Sailing Foundation)“It’s a wonderful sport for all kinds of reasons and for all ages,” Leonardo said. “You get to be out on the water. You see all different aspects of sailing.”He said it is amazing to see how sailing continues to grow in popularity and how the classes grow.The Burns Cohen sisters are from Monmouth County but live in Ocean City in the summers. They learned how to sail at around eight years old, at the Ocean City Yacht Club.They said they enjoy teaching children how to sail and every year they see kids coming back.“We play a lot of games with the kids on the water,” Kailin said, of keeping children interested in sailing. “We play tag where we throw balls into the boats and the kids have to get them in the other boats.”Reilly Burns Cohen ,19, (left) and her sister Kailin Burns Cohen, 18, have been sailing since they were very young.Reilly said it is a lot of fun teaching kids how to sail, especially the ones who have never been on the bay before.“The first day they get here they get a swim test,” she said. “They get in the water and then we go from there.”Like Mroz and Leonardo, the sisters said some of the students are so good they get out on the bay their first day.But first, they are taught about steering, safety and many other aspects of sailing.Reilly added, “It’s always interesting to see how kids want to learn more and how they make friends.”Lessons are held from 9 a.m. to 12 p.m. and from 1 p.m. to 4 p.m.Pricing and packages can be viewed at www.ocnjsailingfoundation.org or call (609) 418-3356.Ocean City Sailing Foundation Director Doug Mroz surveys the waters Tuesday morning.