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Appeals court overturns murder conviction of former Baltimore cop

Maryland’s top court Wednesday overturned the first-degree murder conviction and life sentence of a former Baltimore police sergeant who stood accused of having shot his mistress to death in 1993 while still on the force.

In ordering a new trial, the Court of Appeals ruled 4-3 that James Kulbicki’s trial counsel failed to cross-examine the state’s ballistics expert on flaws underlying the science upon which he linked Kulbicki to the alleged crime scene and gun used to kill 22-year-old Gina Nueslein.

Her body was found Jan 10, 1993, in Gunpowder Falls State Park in Baltimore County.

The high court said Kulbicki’s attorney provided constitutionally deficient counsel by failing to question expert Ernest Peele’s damning “Comparative Bullet Lead Analysis,” particularly in light of Peele’s own criticism of CBLA in a report he co-wrote four years before the 1995 murder trial in Baltimore County Circuit Court.

Peele’s CBLA testimony was “central” to the state’s case and relies on the largely discredited theory that the lead source in each type of bullet is unique, much like a fingerprint, the court said. Peele specifically testified at trial the bullet fragments removed from Nueslein’s body and Kulbicki’s vehicle contained the same or similar lead compositions as bullets taken from a handgun in Kulbicki’s home, the court added.

“Kulbicki’s attorneys’ failure to appropriately investigate the 1991 Peele Report and to challenge the state’s scientific evidence on cross examination at trial … fell short of prevailing professional norms,” Judge Lynne A. Battaglia wrote for the majority.

“Given the serious nature of the charges Kulbicki was facing, along with the fact that CBLA was so persuasively used to connect Kulbicki to the alleged murder scene and murder weapon, it was incumbent on Kulbicki’s attorneys to subject the state’s theories to the rigors of adversarial testing,” Battaglia added. “Having failed to research what Agent Peele had published about the forensic evidence about which he was testifying and having also failed to conduct an adequate cross-examination rendered Kulbiciki’s counsels’ performance inadequate.”

The high court also noted that it later barred the admission of CBLA evidence, in its 2006 decision Clemons v. State, after concluding the science behind the analysis was not generally accepted by the scientific community.

Baltimore County State’s Attorney Scott D. Shellenberger said no decision has yet been made regarding whether Kulbicki will be retried.

“We have to pull the 13 boxes out of storage and take a look at what witnesses are still around and available and them make a decision about retrial,” Shellenberger said. “We will be looking at the case under current scientific principles and not those that existed several decades ago.”

Edwin J. Kilpela Jr., Kulbicki’s appellate attorney, hailed the high court for recognizing that the trial was ‘fundamentally flawed” due to the failure of trial counsel to cross examine Peele and the 1991 report.

“The court’s decision vindicates that fight” waged by Kulbicki, said Kilpela, of Carlson Lynch Ltd. in Pittsburgh. “The state will now be required to give Mr. Kulbicki a new and fair trial.”

Kulbicki’s trial counsel was Patricia S. Hall, of Levi, Franke & Hall in Parkville, according to Maryland Judiciary Case Search records. Hall did not return telephone messages seeking comment on the high court’s decision.

Judge Robert N. McDonald dissented from the decision, saying the determination of whether trial counsel was ineffective must be based on what the attorney knew at the time of trial and not what was later learned about CBLA.

“At the time of Mr. Kulbicki’s trial in 1995, CBLA had been used in criminal trials for nearly 30 years without serious challenge,” McDonald wrote. “Indeed, at the time of Mr. Kulbicki’s trial, the individual widely credited with blowing the whistle on the failings of CBLA — former FBI examiner William Tobin — was still employed by the FBI, was three years away from retirement, and had yet to publish his doubts concerning that analysis.”

As for the 1991 report, McDonald said the study apparently was not readily available in 1995 “even to the most diligent researcher” outside of the Federal Bureau of Investigation, where Peele worked. The report, while somewhat critical of the analysis, nevertheless concluded that CBLA was a useful forensics tool, McDonald added.

Therefore, “a defense attorney who happened to locate the FBI study might reasonably decide that using it would be counter-productive to any effort to refute the CBLA evidence in Mr. Kulbicki’s case,” McDonald wrote.

Kulbicki’s 1995 conviction by a Baltimore County Circuit Court jury was on retrial.

His 1993 conviction for the execution-style slaying of Nueslein earlier that year was overturned by the Court of Special Appeals on procedural grounds.

Battaglia was joined in her opinion by Judges Clayton Greene Jr., Sally D. Adkins and John C. Eldridge.

Judges Glenn T. Harrell Jr. and Lawrence F. Rodowsky joined McDonald’s dissent.

Eldridge and Rodowsky, retired jurists, were sitting by special assignment in place of Chief Judge Mary Ellen Barbera and Judge Shirley M. Watts. Neither Barbera nor Watts publicly disclosed the reasons for their recusals.

BATTAGLIA 

WHAT THE COURT HELD

Case:

James Kulbicki v. State of Maryland, CA No. 13, Sept. Term 2013. Reported. Opinion by Battaglia J. Dissent by McDonald, J. Argued Oct. 3, 2013. Filed Aug. 27, 2014.

Issue:

Did defense counsel provide ineffective assistance in failing to cross examine and investigate prior report by state ballistics expert regarding his “comparative bullet lead analysis” that led to the defendant’s conviction?

Holding:

Yes; defense counsel’s failures “fell short of prevailing professional norms.”

Counsel:

Edwin J. Kilpela Jr. petitioner; Mary Anne Ince for respondent

RecordFax #14-0827-20 (43 pages)