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Kulbicki waits for Supreme Court action on state’s appeal

A former Baltimore police sergeant has waived his right to reply to Maryland’s request that the Supreme Court reinstate his first-degree murder conviction and life sentence in the shooting death of his mistress in 1993 while still on the force.

By deciding to waive, James Kulbicki has essentially opted to wait and see if the high court has enough interest in hearing the state’s appeal to ask him to respond.

The justices have said when they will rule on the state’s request for their review in Maryland v. Kulbicki, No. 14-848.

Kulbicki is being represented on appeal by attorney Kannon K. Shanmugam, of Williams & Connolly LLP in Washington.

In papers filed with the Supreme Court last month, Maryland Attorney General Brian E. Frosh argued that the state’s top court erroneously overturned James Kulbicki’s conviction in August based on ineffective assistance of counsel.

In its 4-3 decision, the Court of Appeals said Kulbicki’s trial attorney had failed to cross-examine the state’s ballistics expert on flaws underlying the “Comparative Blood Lead Analysis” theory upon which he linked Kulbicki to the alleged crime scene and gun used to kill-22-year-old Gina Nueslein.

But Frosh argued to the Supreme Court that the flaws in Comparative Bullet Lead Analysis did not fully come to light until after Kulbicki’s 1995 trial in Baltimore County Circuit Court.

The limited criticism of CBLA in 1995 included an obscure report the prosecution’s own expert witness, Ernest Peele, had co-written four years before the trial — a study which the Court of Appeals erroneously faulted Kulbicki’s counsel for not having found, Frosh wrote in the petition for Supreme Court review.

The Court of Appeals found the 1991 report through an Internet search, “a methodology unavailable at the time of Kulbicki’s trial,” Frosh’s petition adds.