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Supreme Court reinstates former Baltimore officer’s murder conviction

New interns run with a decision across the plaza of the Supreme Court in Washington in June. (AP Photo/Jacquelyn Martin)

New interns run with a decision across the plaza of the Supreme Court in Washington in June. (AP Photo/Jacquelyn Martin)

The U.S. Supreme Court on Monday reinstated a former Baltimore police sergeant’s murder conviction and life sentence in the shooting death of his mistress in 1993 while he was still on the force.

The justices, in an unsigned order, said Maryland’s top court was wrong to have overturned James Kulbicki’s conviction in August 2014 for ineffective assistance of counsel. To the contrary, the Supreme Court said, Kulbicki’s counsel acted appropriately in defending Kulbicki.

The Maryland Court of Appeals said Kulbicki’s counsel failed to cross-examine Ernest Peele, 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 the Supreme Court said flaws in CBLA did not fully come to light until after Kulbicki’s 1995 trial in Baltimore County Circuit Court, meaning defense counsel’s cross-examination was not constitutionally deficient.

“The Court of Appeals offered no support for its conclusion that Kulbicki’s defense attorneys were constitutionally required to predict the demise of CBLA,” the Supreme Court stated in its order. “Instead, the [Maryland] court indulged in the natural tendency to speculate as to whether a different trial strategy might have been more successful. To combat this tendency, we have adopted the rule of contemporary assessment of counsel’s conduct. Had the Court of Appeals heeded this rule, it would have judged the reasonableness of counsel’s challenged conduct … viewed as of the time of counsel’s conduct.”

Maryland Attorney General Brian E. Frosh, who urged the Supreme Court to reinstate the conviction, hailed the justices’ action.

“This unequivocal Supreme Court decision restores the integrity of an important murder conviction, and it sends a clear signal that the closure delivered to a family by a verdict should only be undone in exceptional circumstances,” Frosh said in a statement. “This case did not present those circumstances, as the court clearly noted.”

Kulbicki’s trial counsel, Patricia S. Hall, said the Supreme Court reached “the correct decision” in finding that her representation was constitutionally sound.

Hall added that her client’s conviction should have been overturned due to the discredited testimony of another expert witness for the prosecution. Joseph Kopera, who led the Maryland State Police’s firearms unit, killed himself in March 2007 amid mounting evidence that he often lied about his credentials when testifying in court, added Hall, of Levi, Franke & Hall in Parkville.

Kulbicki’s appellate counsel, Kannon K. Shanmugam, did not return a request for comment on the high court’s action. Shanmugam is with Williams & Connolly LLP in Washington, D.C.

Two trials

Nueslein’s body was found Jan 10, 1993, in Gunpowder Falls State Park in Baltimore County.

Kulbicki’s 1995 conviction for the execution-style slaying occurred on retrial. His 1993 conviction had been overturned by the intermediate Court of Special Appeals on procedural grounds.

The Court of Appeals, in overturning the 1995 conviction and ordering a third trial, said Peele’s CBLA testimony was “central” to the state’s case.

CBLA relied on the since-discredited theory that the lead source in each type of bullet is unique, much like a fingerprint, the court said in its 4-3 decision.

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.”

The Court of Appeals also noted 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.

Study not available

Judge Robert N. McDonald dissented, 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.

Frosh successfully appealed to the U.S. Supreme Court.

The case was docketed at the Supreme Court as Maryland v. Kulbicki, No. 14-848.