Attorneys no longer need to defend their failure to have unmasked Maryland’s former longtime ballistics expert as a fraud in their effort to get their convicted clients a new trial, the state’s top court has ruled.
But lawyers must still show a significant possibility that their clients would have been found not guilty but for the trial testimony of Joseph Kopera, whose claimed education in firearms identification was found to be false in 2007 – but only after he had testified in cases for 20 years, the Court of Appeals said.
Kopera killed himself in March 2007 amid the mounting evidence – later confirmed – that he had lied about his credentials when testifying.
The high court’s decision resolved a recurring issue in “writ of actual innocence” appeals of pre-2007 convictions in which convicts argue they are entitled to a new trial based on the “newly discovered evidence” that the state’s expert, Kopera, was not an expert.
Lower courts have held that Kopera’s lack of expertise was not truly newly discovered because defense counsel could have discovered through “due diligence” that Kopera had falsified his resume.
In fact, it was a defense attorney who discovered that Kopera neither received engineering degrees from the Rochester Institute of Technology and the University of Maryland nor graduated from the FBI Academy in the field of firearms identification and gunpowder residues, as he had claimed.
But the Court of Appeals, in its 5-2 decision Monday, said lower courts should not be so judgmental of the many defense attorneys who were as duped as the prosecution by Kopera’s claimed and long-accepted expertise. Instead, the judges should presume the attorneys were diligent and proceed to address the likelihood of whether the verdict would have been not guilty but for Kopera’s testimony.
The only exception to this presumption of diligence would be if a defense attorney had disregarded “specific information” that should have spurred him or her to question Kopera’s credentials, the court said.
“Simply put, Kopera was, prior to the unearthing of his fraud, regarded widely as a trained and knowledgeable expert in ballistics who had been accepted to testify in courts throughout Maryland and several neighboring jurisdictions for decades before 2007,” Judge Glenn T. Harrell Jr. wrote for the court.
“We reject the implication that all of these attorneys, over a period spanning decades, failed to exercise due diligence,” added Harrell, a retired judge sitting by special assignment. “Simply put, the failure of anyone to unearth Kopera’s fraud prior to its fortuitous discovery, by an exceptionally diligent attorney working for the Innocence Project, who, apparently, had read transcripts from many earlier Kopera trials and noticed inconsistencies that set her on a path of deeper exploration of his claimed credentials, is evidence that it was not reasonable to expect that a hypothetical reasonable and competent attorney would have stumbled onto this discovery prior to 2007.”
The court said its decision does not excuse defense attorneys from their obligation to diligently examine the credentials of the prosecution’s experts in other cases.
“This is (hopefully) a unique class of cases,” Harrell wrote of Kopera’s testimony. “Parties in non-Kopera cases should be chary of transposing our reasoning in this case to other cases not similarly situated.”
The Court of Appeals stated it has no “firm figure” on how many convictions were potentially tainted by Kopera’s testimony but suggested it was “hundreds.”
In its decision, the high court revived convicted first-degree murderer Ronnie Hunt’s bid for a new trial.
A Baltimore City Circuit Court judge had rejected Hunt’s motion for a writ of actual innocence, saying Kopera’s fraud did not constitute newly discovered evidence because his trial counsel in 1991 could have discovered it through due diligence.
The intermediate Court of Special Appeals agreed, prompting Hunt to seek review by the Court of Appeals.
The high court remanded the case to the circuit court with instructions that it determine whether a significant possibility exists that Hunt would have been found not guilty but for Kopera’s testimony, in which case a new trial would be warranted.
“Mr. Kopera’s known misrepresentations – including both his falsified academic credentials and the more recent (2019) revelation that he also forged signatures on reports — put into question all of his claims and therefore warrants reconsideration of all the cases that he touched,” Hunt’s appellate attorney stated via email Wednesday.
“This reconsideration should be conducted by experts who are not from the departments that employed him for decades and relied on him to close cases and secure convictions,” added Assistant Maryland Public Defender Samuel Feder. “In recent years, Maryland courts have recognized the need to review large number of cases to correct injustices, such as the retroactivity of Unger v. State and in Baltimore City’s Gun Trace Task Force scandal. The cases involving Mr. Kopera deserve at least the same comprehensive consideration.”
The Maryland Office of the Attorney General declined to comment on the court’s ruling.
Harrell was joined in the opinion by Judges Robert N. McDonald, Michele D. Hotten, Joseph M. Getty and Brynja M. Booth.
In a separate opinion, Judge Jonathan Biran said the Court of Appeals’ presumption of diligence on the part of defense attorneys in the Kopera cases is as inappropriate as the lower courts’ presumed lack of diligence that the high court criticized.
Appeals should be decided on a case-by-case basis as to whether due diligence required the defense attorney to scrutinize Kopera’s credentials, Biran wrote in an opinion joined by Judge Shirley M. Watts.
“Neither presumption should be the basis for determining whether an attorney could have discovered the evidence of Kopera’s fabrications through the exercise of due diligence,” Biran wrote.
“Although Kopera’s fabrications may not vary from case to case, the circumstances that bear on a defense attorney’s decision not to investigate Kopera’s academic qualifications may well vary from case to case,” Biran added. “Based on those differences, the same judge hearing two Kopera-based actual innocence cases may decide the threshold diligence question differently in each case.”
Biran and Watts concurred in the court’s decision to revive Hunt’s appeal, stating that his trial counsel’s “failure to discover Kopera’s fabrications was not the result of a failure to exercise due diligence.”
The Court of Appeals rendered its decision in Ronnie Hunt v. State of Maryland, No. 21, September Term 2020.