The Supreme Court’s first decision of its new term highlighted the rarity of winning an appeal based on ineffective assistance of counsel. In Maryland v. Kulbicki the Supreme Court overturned Maryland’s highest court in upholding the conviction of a man convicted almost exclusively on faulty scientific evidence. James Kulbicki was found guilty of killing his mistress by shooting her in the head at close range. Other than motive (they were locked in a bitter paternity suit that was coming up for a child support hearing) all the prosecution had was that a bullet fragment found in the defendant’s truck matched a bullet fragment removed from the victim. FBI Agent Ernest Peele testified as the State’s expert on Comparative Bullet Lead Analysis, or CBLA. Peele testified that the composition of elements in the molten lead of a bullet fragment found in Kulbicki’s truck matched the composition of lead in a bullet fragment removed from the victim’s brain; a similarity of the sort one would “‘expect’” if “‘examining two pieces of the same bullet.’” Pretty strong evidence – except that it was contrary to a research study Pele had done and contrary to a lecture he and other agents had given on CBLA. One of the many findings of the report was that the composition of lead in some bullets was the same as that of lead in other bullets packaged many months later in a separate box. Rather than conduct “further research to explain the existence of overlapping compositions,” the authors (including Peele) “speculated” that coincidence (or, in one case, the likelihood that separately packaged bullets originated from the same source of lead) caused the overlap. This research and additional later research established that CBLA is completely flawed junk science and CBLA has not been used since 2003.
But Kulbicki’s defense lawyers never found the Peele report that contradicted his own testimony. In fact they admitted that they conducted no research into any of Peele’s past writings or lectures. None. Instead they only cross examined him on the accuracy of his findings of the similarities between the two samples. The Maryland Court of Appeals held that this deficiency deprived the defendant of his right to effective assistance of counsel. The Supreme Court in a per curiam opinion (meaning it was issued by the entire court in agreement with no one judge delivering the opinion) held that it was too much to expect a lawyer in the days before the Internet to have found the Peele report. But that’s just not so. Kulbicki’s lawyers had shown that the Peele report on CBLA was well-circulated and discussed in forensic scientific conventions. The court seemed to completely overlook that part of their brief. And even before the days of the Internet, you could go to a public library and look up articles and books by author’s last names. I crossed alot of experts back in the pre-web 90s using material I found in something called the card catalog and the Periodical Review, which listed every magazine article by subject and author’s name. My bosses would have hung me out to dry if I tried crossing an expert without doing some research to find out if he had written anything about the subject that would be useful in cross.
But the Supremes reminded us all that the Constitutional right to an effective lawyer does not mean you get a perfect lawyer or even an excellent lawyer. It only means you get an adequate lawyer. And just because your conviction was based on now-defunct junk science that was not subjected to any cross examination doesn’t change that. Its just the latest line in a string of cases from this court that narrowed what it means to have effective counsel.
Just this past week, I received a denial of my own appellate client’s ineffective assistance of counsel claim. The many failings of his trial lawyer were labeled “trial strategy” and my skewering of the stupidity of the strategy was defined as “hindsight.” In the three cases of wrongful conviction I have handled, poor lawyering was a key source of the wrongful conviction. Yet all three defendants (all of whom were later exonerated) appealed their convictions to courts that only paid casual lip service to the ineffective assistance of counsel claims.
So what’s the message? The initial trial, the initial lawyer – remains a defendant’s best shot. Counting on an appeal based on poor lawyering is a mistake. Litigants would be wise to spend time choosing the right lawyer first time around. Ask questions, interview as many as you can, get involved in your case and his strategy because its like that Billy Joel song says – “Get it right the first time, that’s the main thing.”
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