Robert M. Kubat: Key evidence of innocence withheld at trial

This story is the twenty-first in a series, Unrequited Innocence, that looks at cases where people were sentenced to die and have not been exonerated despite significant evidence of innocence.

In June, 1980, a Lake County, Illinois jury sentenced a truck driver named Robert M. Kubat, who had been in and out of prison for years, to death after convicting him of the murder of Lydia C. Hyde, 63.

The body of Hyde, a Kenosha, Wisconsin bartender, was found seven months earlier on the side of a highway a mile south of the state line dividing Illinois and Wisconsin, shot to death.

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Unrequited Innocence

Kubat was arrested a few weeks after Hyde was killed once his ex-wife Carolyn Quick, told South Bend, Indiana, police that she had accompanied her ex-husband on visits to a number of bars before they stopped at the Coffee And bar in Kenosha, where Hyde was alone. As Quick described it to authorities, Kubat demanded that Hyde empty the cash register and then forced her to drive them in Kubat’s station wagon. After they crossed the state line, Quick said, Kubat ordered Hyde to stop and get out of the car, after which he killed her.

Police detectives went to the bars that Quick said the two had stopped at before the murder and showed a photo array that included Kubat. When three different patrons of one bar said they recognized Kubat as someone they had seen the night of the murder, police filed capital murder charges against him.

Robert M. Kubat

Chicago Lawyer

Robert M. Kubat

Quick was charged with kidnapping, but those charges were dropped in return for her testimony. The prosecutors relied, in addition to her testimony, on the three bar patrons who had identified Kubat, as well as a forensic scientist who testified that hair “consistent” with Hyde’s was found in Quick’s station wagon after his arrest.

Prosecutors also presented evidence that Kubat had changed the tires on his station wagon days after the killing, arguing to the jury that he had done so to ensure that tire marks near where Hyde’s body was found did not match the treads on his station wagon.

Lake County public defender George Pease presented evidence that Hyde was vindictive and had falsely accused her ex-husband. He presented evidence that Kubat had spent that weekend in a Chicago motel with his new girlfriend, who contended that she had picked up a rent-assistance check the morning of the murder, and cashed it, in Kubat’s presence, at a suburban Chicago bar that afternoon.

The jury was not persuaded.

The Illinois Supreme Court affirmed Kubat’s death sentence in January 1983, writing the evidence “overwhelmingly” supported the jury’s verdict.

But after the conviction, significant evidence developed. Rob Warden — a co-founder of Injustice Watch, back then the editor of Chicago Lawyer — published an article raising significant doubts about Kubat’s guilt, as well as about the quality of the defense Kubat received.

The Chicago Lawyer reported that Allstate Insurance records documented that the tires were changed after they had been slashed — contrary to what the jury heard. Furthermore, a forensic expert concluded that the slashed tires were not a match for the tire tracks found at the scene.

The article also noted potential witnesses who could have supported the alibi — including the new girlfriend, who was sitting in the courtroom. The prosecution, in closing, suggested to the jury that she did not take the stand because she would not have supported Kubat’s alibi; the woman later submitted an affidavit saying that was untrue.

That affidavit was part of a post-conviction petition filed by Kubat challenging the representation he received from Pease, who went on to become a circuit judge. Kubat had failed to call the girlfriend as well as two other witnesses who would have testified in support of Kubat’s alibi. Nor did Pease seek to introduce evidence that two witnesses at the Coffee And bar told investigators that they saw a grey Monte Carlo pull out of the parking lot at the time Hyde was kidnapped — not a white station wagon as Quick contended.

But Illinois courts brushed aside Kubat’s claim for a new trial. A majority of the Illinois Supreme Court agreed in 1986 Kubat had not established his attorney was ineffective; but in dissent, Justice Stanley Simon wrote that Kubat had identified “some 20 instances” of ineffectiveness by Pease. “Counsel’s performance was patently deficient,” he wrote, and there “is a reasonable probability” Kubat would have been acquitted had he been properly represented. “Justice does not permit the execution of a defendant who was effectively rendered no legal assistance at all,” Simon wrote.

Kubat turned to the federal courts, raising again the quality of his representation as well as the reliability of the photographic lineup.

Though U.S. District Court Judge Nicholas J. Bua stated that “the seeds of ineffectiveness had been sown before the trial even commenced,” he affirmed Kubat’s conviction but vacated the death sentence, holding that Pease’s failure to present any evidence in mitigation at sentencing was clearly ineffective.

The Seventh Circuit U.S. Court of Appeals affirmed Bua’s decision in 1989. The appellate court wrote that “we disapprove” of the lineup procedures, but concluded the lineup was not so flawed as to violate Kubat’s constitutional right. And the court wrote that Kubat’s representation at sentencing fell woefully short. “We view this failure of counsel as a ‘breakdown in the adversarial process,’” upholding Bua’s decision to vacate the death sentence.

Kubat remained in prison another 20 years, paroled in 2009. He died four years later. The Illinois death penalty was abolished in 2011.