Kulbicki v. State Dodges Due-Process Issues, Rules on Grounds That Weren’t Briefed
By Brad McCullough,
Last September, I previewed two cases that had the potential to be the Court of Appeals’ “next big case.” One of them was Kulbicki v. State, a case that demonstrates how oral argument can dramatically shape a case. In 1993, James Kulbicki was a 36-year-old married police officer with a 22-year-old mistress. After the mistress’s dead body was found with a bullet wound to the head, Kulbicki was convicted of murdering her. The prosecution’s case featured several expert witnesses, one who testified as an expert in comparative bullet-lead analysis, or “CBLA,” and another who testified as an expert in firearms identification. The Court of Special Appeals affirmed Kulbicki’s convictions and the Court of Appeals denied his petition for writ of certiorari. Kulbicki v. State, 102 Md. App. 376 (1995). Eleven years later, in Clemons v. State, 392 Md. 339 (2006), the Court of Appeals held that the conclusory aspects of CBLA are not admissible under the Frye-Reed test. Kulbicki also learned that the firearms identification expert had lied about his qualifications and that much of his trial testimony was simply false. Armed with this new information, Kulbicki sought post-conviction relief, but the circuit court denied his petition and the Court of Special Appeals affirmed.
The Court of Appeals granted Kulbicki’s petition for writ of certiorari, which presented three issues: (1) Does a conviction obtained through the use of scientific evidence that is later demonstrated to be unreliable, misleading, and inadmissible violate a defendant’s guarantee of due process?; (2) Does the use of perjured expert testimony by a State expert violate a defendant’s due-process rights when the perjured testimony involves the expert’s qualifications and background?; and (3) Does the failure of defense counsel to investigate or challenge the State’s scientific evidence and to object to the scope of the State’s closing arguments constitute ineffective assistance of counsel? The Court also granted the State’s conditional cross-petition, which urged that the State should not be charged with the knowing use of perjured testimony where the falsity was not known when the testimony was offered. Because of these issues (especially the due-process questions), I saw Kulbicki as a potentially fascinating case. In early August, fellow blog contributor Michael Wein noted that the Court – 10 months after oral argument – had still not issued an opinion and he surmised that the decision could be the “blockbuster” of the term. After all, a holding that a criminal defendant’s due-process rights are violated if scientific evidence used to obtain a conviction is later deemed unreliable could have far-reaching ramifications.
On August 27, 2014, the Court of Appeals issued its decision, Kulbicki v. State, No. 13, September Term 2013, which indeed proved to be fascinating, but not for the reasons I had anticipated. In a 4-to-3 decision, the Court of Appeals reversed the Court of Special Appeals, directing it to vacate Kulbicki’s convictions and remand the case for a new trial. What I find fascinating is that the Court based its decision on an issue that had not been argued before the Court of Special Appeals, had not been considered by that court, and had not been addressed in Kulbicki’s brief in the Court of Appeals. Indeed, in his dissenting opinion, Judge Robert McDonald remarked that the issue was “not briefed by either party in this appeal and [was] not among the questions on which we granted the writ of certiorari.” Dissent Slip Op. p. 1 (footnote omitted).
Writing for the majority, Judge Lynne Battaglia identified the issue seized upon by the Court, pronouncing “that Kulbicki’s attorneys rendered ineffective assistance when they failed to investigate and cross-examine the State’s CBLA expert, Agent Ernest Peele, based upon a report he co-authored in 1991, which presaged the flaws in CBLA evidence.” Slip Op. p. 6. After noting that the issue had not been presented to or considered by the Court of Special Appeals, and had not been briefed by Kulbicki before the Court of Appeals, Judge Battaglia acknowledged in a footnote that while an appellate court ordinarily “will not reach an issue that has not been argued by the parties,” it retains the discretion to do so, including where the issue is raised during oral argument. Id. n. 7 (citing Md. Rule 8-131; Braxton v. State, 123 Md. App. 599, 633 (1998)). The majority simply said it had the discretion under Rule 8-131 but did not provide any explanation why it exercised that discretion in this case.
Judge Battaglia did, however, explain why the majority believed that the issue was nonetheless properly before the Court. During oral argument, “after the State argued that the admission of CBLA evidence was not a due-process violation because Kulbicki’s attorneys should have been able to test the flawed assumptions upon which CBLA was based at trial, questions were raised by the Court regarding ineffectiveness of counsel.” Id. p. 5. In other words, by arguing that Kulbicki’s due-process rights had not been violated because the defense could have attacked CBLA’s reliability, the State opened the door to an ineffective-assistance-of-counsel challenge.
The majority recognized that the CBLA evidence “was central to the State’s case,” and while the defense had tried to undermine the witness’s conclusions, counsel had not attacked a pivotal fundamental assumption of CBLA. In other words, the defense challenged the witness’s application of the methodology but did not challenge the reliability of the methodology itself. The Court concluded that a failure to “investigate the State’s forensic evidence and challenge the State’s expert on cross-examination regarding a scientific method used to implicate the defendant may be a predicate upon which a claim for ineffective assistance of counsel may prevail.” Id. p. 14. Although the circuit court had ruled that trial counsel’s failure to attack CBLA could not be viewed as “ineffective assistance” because “questions concerning the reliability of that science didn’t even surface until long after Mr. Kulbicki’s trial,” Judge Battaglia and her colleagues in the majority rejected that view. Id.
Judge Battaglia explained that while Clemons was not decided until 2006, questions concerning CBLA had begun to surface years earlier. Four years prior to Kulbicki’s trial, Agent Peele and five other agents “had published a report which presaged the very flaw that ultimately lead us to conclude in Clemons that CBLA evidence was invalid and unreliable – the faulty assumption that bullets produced from different sources of lead would have a unique chemical composition.” Id. p. 14. The majority concluded that had Kulbicki’s lawyers “investigated and discovered the 1991 Peele Report, they would have had a potent challenge to Agent Peele’s” testimony that a bullet fragment taken from the victim matched a bullet fragment found in Kulbicki’s truck and that the bullet taken from the victim was similar to a bullet taken from Kulbicki’s handgun. Id. p. 18. The Court held that the failure to investigate that 1991 Report and the failure “to conduct an adequate cross-examination rendered Kulbicki’s counsel’s performance inadequate.” Id. p. 19 (footnote omitted). The Court further held that Kulbicki was prejudiced by his counsel’s ineffective representation and it therefore ordered a new trial.
Judge McDonald’s dissent was forceful and scathing. He asserted that the majority had vacated Kulbicki’s convictions because his trial counsel had failed to anticipate that – more than a decade after trial – the prosecution’s forensic evidence would be found to be unreliable. Dissent Slip Op. p. 1. Judge McDonald noted that the only “basis on which the Majority opinion finds trial counsel ineffective relates to a single research paper co-authored by six analysts from the FBI’s laboratories,” including Agent Peele. Id. p. 5. Yet, “it is not entirely clear that the FBI study was readily available outside the FBI at the time of the 1995 trial, even to the most diligent researcher.” Id. p. 6. Moreover, Judge McDonald asked, “Of course, assuming trial counsel could even locate the FBI research paper, what would they have done with it? The FBI study does not criticize the use of CBLA as a forensic tool.” Id. p. 7. While the study could have provided fodder for a line of cross-examination, the study largely supported the purported science underlying CBLA. According to the dissent, the majority’s reasoning could be summarized as follows: “Mr. Kulbicki’s trial counsel should have discovered and unraveled the flaws in CBLA analysis before anyone else did by locating and using and using an obscure research paper – a paper that actually endorsed the use of CBLA to link a defendant to a crime involving a firearm, including murder cases in particular.” Id. p. 12. Judge McDonald concluded that was “simply not a basis on which to find that Mr. Kulbicki’s trial counsel were deficient.” Id. Finally, the dissent also concluded that, given the quantity and quality of the other evidence introduced at trial, Mr. Kulbicki had not shown that, but for counsel’s allegedly deficient performance, there was a substantial possibility that the result of his trial would have been different. Id.
As alluded to earlier, one of the interesting things about this case is how it was shaped by oral argument and the Court’s reactions to counsel’s arguments. As Kulbicki’s counsel wanted to establish a due-process violation, he urged that trial counsel could not have effectively challenged CBLA’s reliability at the 1995 trial. For example, early in his argument, Kulbicki’s counsel argued that Kulbicki’s due-process rights had been violated because CBLA had been later found to be unreliable and misleading, but that, at the time of Kulbicki’s trial, the flaws were unknown and could not have been discovered. Judge Battaglia, who had authored Clemons, interjected, disagreed, and said that there were concerns at that time about the reliability of CBLA. Judge Harrell likewise noted that as early as 1991 there had been published articles and studies questioning CBLA’s reliability. When counsel acknowledged that questions had been raised about CBLA, but noted that the conclusion that CBLA was not reliable was not reached until much later, Judge Battaglia pointed out that questions and concerns about the test’s reliability should have been enough to provide a basis for cross-examination. From that point, the focus of the CBLA issue shifted. The focus became whether there was sufficient information available that would have allowed defense counsel to cross-examine Agent Peele about the reliability of CBLA’s methodology and assumptions. Given the direction of the Court’s questioning, Kulbicki’s counsel, toward the end of his argument, said that the CBLA issue could be subsumed within the ineffective-assistance-of-counsel argument.
During the State’s argument, counsel argued that there was no due-process violation because trial counsel had sufficient opportunity to challenge the reliability of the science. Judge Adkins asked how defense counsel could have gone about challenging the evidence. Moments later she asked if, realistically, counsel could have obtained enough information to show that CBLA was not reliable. Counsel for the State replied that defense counsel absolutely could have done so. After additional argument and questioning, Judge Adkins mused that, if counsel could have shown that CBLA was ineffective but did not do so, wasn’t counsel then ineffective? Ironically, much of the argument made by the State supported the conclusion that Kulbicki’s trial lawyers had not provided adequate assistance of counsel, while much of the argument made on Kulbicki’s behalf rebutted that notion. In short, given the twist in the case resulting from the Court’s questions, many of the points made in the majority opinion vacating Kulbicki’s conviction were consistent with the State’s oral argument, while points made by the dissent mirrored Kulbicki’s oral argument.
One additional observation is in order. Had the Court held that a defendant’s due-process rights are violated if it is later learned that scientific evidence introduced at trial is unreliable, the ramifications could have been very significant. Potentially, defendants could have been entitled to new trials by showing that the unreliable evidence had contributed to the defendant’s conviction. I have no idea how many defendants could have been affected by such a holding, but the State might have been faced with a flurry of post-conviction petitions similar to that created by the holding in Unger v. State, 427 Md. 383 (2012). By instead simply holding that this particular defendant received inadequate representation, and that the inadequate representation prejudiced him, the Court avoided having to decide the due-process issue.
 Judge McDonald’s dissent was joined by Judge Glenn Harrell and retired Judge Lawrence Rodowsky, who was specially assigned.
 Judge Battaglia also authored the opinion in Clemons. In Kulbicki, she was joined by Judges Clayton Greene and Sally Adkins and retired Judge John Eldridge, who was specially assigned.
 The ineffective-assistance-of-counsel issue generated during oral argument, and which formed the basis of the Court’s opinion, dealt with the failure to cross-examine Agent Peele regarding the flaws and faulty assumptions underlying his CBLA analysis. The ineffective-assistance-of-counsel argument raised in the Court of Special Appeals, on the other hand, dealt more broadly with counsel’s failure to consult with “scientific experts to investigate and challenge the State’s ballistics and DNA evidence” and their failure to object to improper closing argument. Kulbicki v. State, 207 Md. App. 412, 450 (2012).
 Because the Court held that Kulbicki was entitled to a new trial on the basis of ineffective assistance of counsel, it did not reach his remaining two questions or the State’s conditional cross-petition. Slip Op. p. 4, n. 6. Thus, the Court did not discuss the effect of the perjured testimony provided by the prosecution’s other firearms expert, Joseph Kopera, who had lied at trial about his credentials. Mr. Kopera committed suicide prior to the post-conviction hearing in circuit court. Kulbicki v. State, 207 Md. App. 412, 430 n. 9 (2012). Nor did the Court address the argument that “Kopera’s and Peele’s ‘false and misleading’ expert ballistic testimonies violated his right to a fair trial.” Id.at 443.
 The webcast of the oral argument is archived on the Maryland Courts website and may be accessed and viewed at http://www.courts.state.md.us/coappeals/webcasts/webcastarchive2013term.html#october2013.