Hell Hath No Fury
By Robert Kubat and Dolores Kennedy
Editor, Kira Caywood
"What is surprising is this court's reticence to recognize and correct an egregiously unfair proceeding in which this defendant was sentenced to death with legal assistance that would border on the comical if only it were make believe..." Statement of Justice Seymour Simon in his dissenting Illinois Supreme Court decision.
On June 18, 1980, Robert J. Kubat was sentenced to death for a crime he did not commit. Nine years later, his death sentence was overturned by the Illinois Federal Appeals Court because of erroneous instructions to the jury and ineffective assistance of counsel during the penalty phase. On May 25, 1990, Bob was re-sentenced in Lake County to 60 years for the charge of murder. He is scheduled for release in 2009, at which time he will be 74 years old.
I first learned about Bob Kubat a dozen years ago when he was still on death row. Several people told me that Bob was innocent of the crime for which he was to pay with his life. They also said he was a kind and gentle man and well liked by those who knew him. When I began to write for Justice Denied, I thought of Bob because of his compelling story of injustice. Last year, Bob was denied clemency following a hearing that emphasized his innocence and the fine record he has built in his 20-year incarceration. I asked Bob to help me tell his story. Here is his account of the events that led to his conviction:
On November 2, 1979, a bartender named Lydia Hyde was kidnapped by a man and a woman from a restaurant and bar near Kenosha, Wisconsin, called "The Coffee And." Her body was later found along the shoulder of old Route 41 in Illinois. She had been shot in the back of the head.
At about 10:00 p.m. on the day before the murder, I was stranded with my car at a gas station in Indiana about 20 miles east of Chicago. The manager of the gas station, Margie Elea, could have testified to this if my public defender had called on her during my trial. I was with Mrs. Elea for four hours until I got my car started. I then drove a woman hitchhiker to a party before returning home to Chicago. I spent November 2, from about 8:00 a.m. through the evening, with my girlfriend, Francine Bejda, and there were four other witnesses available to testify to this. Again, my defense attorneys failed to locate these witnesses.
My trial began in 1980. I attempted to fire my court-appointed public defenders three times because they were not producing the alibi witnesses I told them about. Margie Elea spent two days at court before being told by my own lawyers that her testimony would not be used.
I was sentenced to death for the murder of Lydia Hyde after a trial that a judge termed "comical."
My only connection to the murder of Lydia Hyde was the testimony of Carolyn Sue Quick. Carolyn was my ex-wife and a known liar. Twice before she had tried to implicate me in crimes I had nothing to do with. She was positively identified as the woman who helped kidnap Lydia Hyde and she voluntarily testified to the FBI in South Bend, Indiana, that I was with her and I was the one who killed Lydia Hyde. Carolyn was extremely jealous of my relationship with Fran Bejda and had, in fact, threatened to kill me over this affair. As it turned out, the state almost did it for her.
Following are just a few of the many inconsistencies in this case:
• Two witnesses saw a blue-gray car, which they identified as a 1976 Chevrolet Monte Carlo, leaving the parking lot of the bar and throwing gravel in its haste. I owned a white 1977 Impala station wagon at the time.
• It has been established that a tire track found near the victim's body and introduced as prosecution evidence -- a tire track that almost certainly was left by the killer's car -- was not left by my 1977 Chevrolet station wagon, which the prosecution claimed was used in the crime. This tire track was a key point in the prosecution's argument against me.
They argued that I "deep-sixed" the tires on my station wagon at the time of the murder so they could not be matched with tracks left at the crime scene. However, I reported to Allstate Insurance Company that my tires had been slashed. An insurance adjuster verified the damage and approved a settlement. The adjuster made a report identifying the tires as Uniroyals. The prosecution stipulated to the fact that the tire tracks found alongside Lydia Hyde's body were not left by Uniroyal tires.
Peter McDonald, one of the country's foremost forensic tire experts, compared the tread design on that type of Uniroyal tire with a scale photograph of the tire track left on U.S. 41. Mr. McDonald concluded that, "There is no doubt that the tire print depicted in the photograph could not have been made by any Uniroyal tire." This information was never presented to the jury. My counsel never even investigated whether the tire tracks could have been made by my tires.
In March of 1989, the Milwaukee Journal investigated my case, interviewing more than 35 people and uncovering new evidence that had been withheld from my lawyers and me. Investigative notes compiled by the Kenosha Sheriff's Department showed that they originally suspected that the murder of Lydia Hyde was linked to organized gambling and the precarious financial state of the tavern. It was believed that someone wanted to remove Lydia Hyde, who had been making very high, unorthodox payments for the tavern out of her own pocket. Because the Illinois drinking age had been raised, and because of the strategic location of the tavern on the Wisconsin border, it was very valuable property. Detective Dale Crichton wrote:
"At this writing, I believe the motive for removing Lydia Hyde from the scene is to cause Julie Lewis (the tavern owner) to go under financially, and to obtain the business and tavern license. This would be worth quite a few bucks over the next few years."
This theory was never presented to the jury as a possible motive for the murder and was withheld from my lawyers and me until 1989. Also included in the reports was a note from Detective Crichton to Sergeant Roger Doom, cautioning Doom against putting the reports in the general file because of their "sensitive nature."
Carolyn Sue Quick is the only person who links me to this crime. There was no physical evidence, and the weapon used to kill Lydia Hyde has never been recovered. I was sentenced to death on the word of a woman who was proven to be a liar in court, who had willingly participated in this heinous crime, and who hated me and wanted nothing more than to see me dead. Carolyn resented my relationship with Fran Bejda and constantly sought revenge.
When it seemed that I might win my appeal, Carolyn accused me of murdering a man named Robert Janek in 1976. An FBI agent and a Sheriff's Deputy from DuPage County visited me in prison and concluded that I could not have committed the crimes of which Carolyn was now accusing me.
For the past 20 years, I have sought to right this injustice through the court system, but to no avail. It is infinitely more difficult to prove one's innocence after being convicted of a crime. I must bear the burden of proof without money for legal assistance from behind prison walls. There are a few people who know that I am innocent and have stood by me for many years. They have offered their testimony to the courts, again to no avail.
"Justice does not permit the execution of a defendant who was effectively rendered no legal assistance at all." -- Justice Seymour Simon
In 1983, Rob Warden, then editor of the Chicago Lawyer, was contacted by friends of Bob Kubat. They asked that he investigate the events surrounding Bob's conviction as they were convinced of his innocence. In December of that year, Warden authored an article entitled "Quick and the Dead," in which he revealed that "a forensic report commissioned by the Chicago Lawyer contradicts a major contention made by the prosecution in a murder trial that ended in a death sentence for a man named Robert Kubat."
Warden revealed that the report issued by the nation's leading expert on tires firmly stated that the tires which were on Kubat's car at the time of the murder did not match the tracks left at the scene of the crime -- information which should have been gathered by Kubat's defense attorney. The prosecution contended that Kubat had "deep-sixed" his tires after the murder to avoid detection. In truth, Kubat's tires had been slashed, he had filed a claim with Allstate Insurance Company and replaced the tires with Uniroyal tires, standard for a 1977 Chevrolet station wagon. Warden also revealed that witness descriptions of the car driven by the kidnappers did not match the Chevy driven by Kubat and that crucial witnesses who could have identified Kubat as the man in the Chicago bar at the time he was supposedly kidnapping Lydia Hyde in Wisconsin, were never called by Kubat's defense lawyer.
Six years later, the Milwaukee Journal initiated a ten-week investigation into the Kubat conviction, interviewing some 35 witnesses and gaining access to police records that revealed the following:
Twenty-four pages of police records had been withheld from Kubat, his lawyers and the jury -- documents that suggested a motive and killers entirely different from those offered by the prosecution. The papers were found in case files at the Kenosha County Sheriff's Department headquarters. The file also contained a memo from a Kenosha detective to his superiors urging that the documents be left out of the case file, cautioning that the reports were "of a sensitive nature ... do not place them in the general file as yet."
Identification of Kubat by various witnesses was based only on photographs as opposed to line up, and Kubat was described as a much heavier man than he was at that time. In fact, a sketch made from witness descriptions more closely resembled Raymond Flatoff, Carolyn Quick's boyfriend at the time of the murder.
Kubat had been positively identified as the man in the Chicago bar, which would have placed him in Illinois instead of at the site of the Wisconsin killing.
Shortly after the killing, Carolyn Quick turned herself into the FBI, claiming that she had been Kubat's unwilling accomplice in the kidnapping and murder of Lydia Hyde. She was told that charges of aggravated kidnapping against her would be dismissed in exchange for her testimony about Kubat's involvement in the crime. The Milwaukee Journal reporter also interviewed Carolyn Quick at her home in Chicago. Quick, who had a reputation for lying, made contradictory statements to the reporter:
In her first statement, Quick said she did not know that Kubat planned to rob a tavern in Kenosha. In a subsequent statement, she said Kubat told her before they left Chicago that he planned to rob a tavern on the trip to Kenosha;
In her first statement, Quick said she and Kubat took a direct route to The Coffee And from another tavern in Kenosha. In the second statement, she said she and Kubat followed a more complicated path that included a circular drive of about three miles.
In her first statement, Quick said Kubat fell asleep the night of the crime with the murder weapon in his hand. Subsequently, she has repeatedly said that she stayed with Kubat the night of the crime at an Illinois motel because he was armed with the .38. During the Journal interview in her apartment, Quick offered information that undercut the idea that Kubat used fear to keep her at the motel. According to that statement, she had the gun in her possession during the stay at the motel.
The Journal also discussed letters Quick sent to Kubat in prison, in which she wrote that she had cancer of the spine and was undergoing chemotherapy. Yet she told the Journal that she had never had any major illnesses. She also told Kubat that she was no longer living with Flatoff because he had been sentenced to 10 years in prison in Indiana. However, Indiana prison officials said no one named Raymond Flatoff had ever been sentenced for crimes in their state.
Despite a conviction that rested entirely on the testimony of a known liar who had stated that she wanted to see him dead, Bob Kubat remains in prison. Kubat, who had a criminal record that included armed robberies, talked about his life:
"I'm not proud of my past, and I shouldn't be, but I never made any effort to hide it. I never tried to cover it up. I admitted my guilt and took my punishment. It took me a long time to realize that I was playing the fool. After a while, I realized there wasn't anything better than cutting the grass like a normal person at that little house. When I was arrested, I was making good money -- $25,000 a year. I had no reason to do a robbery.
"Also, I'm more than just a little bitter. If all the evidence had been presented at one time to a jury, I know that I'd have been found innocent. They don't want to admit they made a mistake."
For further information, contact Dolores Kennedy at DeeKay925@aol.com or write to Robert Kubat, P.O. Box 1200, #A50466, Dixon, IL 60121.
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