On remand from SCOTUS, Maryland Court of Appeals summarily affirms CSA in Kulbicki
By Steve Klepper (Twitter: @MDAppeal)
We have a breaking update in our coverage of the long-running Kulbicki case. Ten weeks ago, the Supreme Court summarily reversed the decision of the Court of Appeals of Maryland in Kulbicki v. State, 440 Md. 33 (2014), which had found ineffective assistance of counsel on grounds that the Court of Appeals raised sua sponte. Read More…
In Reversing Kulbicki v. State, How Did the U.S. Supreme Court Review the Record?
By Michael Wein
Last week, as noted by Blog Editor-in-Chief Steve Klepper, the U.S. Supreme Court issued a short four-page summary reversal of the Maryland Court of Appeals’ decision in Kulbicki v. State. The reversal followed three relists for the case at the end of the last term, a circumstance I covered in a post in June. Both posts noted a likelihood of some written decision being issued, either a summary reversal or an opinion regarding denial of certiorari.
Supreme Court Summarily Reverses Maryland Court of Appeals in Kulbicki
By Steve Klepper (Twitter: @MDAppeal)
Today the Supreme Court of the United States issued a per curiam ruling summarily reversing the four-to-three Court of Appeals decision in Kulbicki v. State, 440 Md. 33 (2014). Interestingly, the Supreme Court never issued an order calling up the state court record (see, for instance, the docket in Martinez v. Illinois) – even though Maryland is not a state where the record is available online.
It took the Supreme Court just 4½ pages to unanimously reverse. Read More…
Kulbicki Still Awaiting Supreme Court Cert Decision
By Michael Wein
The Maryland case of Kulbicki v. State, involving the post-conviction relief appropriate for those convicted with help from the now thoroughly discredited FBI “comparative bullet lead analysis” (“CBLA”), was one of the “blockbuster” cases of last year, as noted by fellow Blog editor Brad McCullough in a post discussing how the case unexpectedly did not decide larger issues and by myself on a list of some of the “longest pending cases” in the 2013-2014 Term (Kulbicki being the longest). The 4-3 Court of Appeals decision and majority opinion by Judge Lynne Battaglia, instead of dealing with potentially more sweeping issues that could have also been addressed in the case, concentrated more narrowly on Kulbicki’s entitlement to a post-conviction remedy under a regular ineffective-assistance-of-counsel analysis, despite that potential error not being earlier presented in the certiorari petition. As Judge Robert McDonald’s dissent noted, the case “reverses Mr. Kulbicki’s conviction on the basis that his trial counsel failed to anticipate [that CBLA would one day be deemed inadmissible] and thereby provided ineffective assistance of counsel in their cross-examination of the prosecution’s CBLA forensic expert – a ground not briefed by either party in this appeal and not among the questions on which we granted the writ of certiorari in this case.”
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.
Seventeen Days to Go and Two Potential Blockbuster Maryland Court of Appeals Cases Left to Decide!
By Michael Wein
It’s time for the Annual* “Blockbuster” Court of Appeals decision watch. Three years ago, with about one week to go before the Maryland Court of Appeals’ self-imposed deadline of August 31st for deciding all cases in the term, the Court had only four cases left to decide. Two years ago, with two weeks before the Court’s deadline, there were 11 decisions left undecided. With a little more than two weeks to go before this year’s deadline, nine (9) decisions remain undecided, per the “Pending Cases” page on the Court of Appeals’ web site, with four (4) of those cases related to the topic of juvenile life sentences (that will likely involve some form of consolidated opinion, or opinions that will cross-reference each other). Of these 9 cases, one is civil, five are criminal, and three involve an Attorney Grievance matter. A listing of these cases’ Questions Presented from the Court of Appeals’ website, can be found at the bottom of this post.
Fifteen Days to Go, and an Avalanche — 15 — Maryland Court of Appeals Cases Left to Decide!
By Michael Wein
Last year, with about one week to go before the Maryland Court of Appeals’ self-imposed deadline for deciding all cases in a September term by the following August, the Court had only four cases left to decide. Per the “Pending Cases” page on the Court of Appeals’ web site, with two weeks to go before this year’s deadline, 15 decisions are left to decide. Of these 15 cases, seven are civil, six are criminal, one is an Attorney Grievance matter (which the oral arguments indicate was, interestingly, remanded back to the trial judge for additional findings and re-argued in the same term), and one is a Bar application case.
Appellate Documents of Officers Charged in Freddie Gray Death Published Online
By Michael Wein
In the past two weeks, some of the officers charged in the death of Freddie Gray have sought appellate and injunctive relief. Before officer Caesar Goodson was to go on trial last week, fellow officer William Porter, a potential witness in that case, challenged the trial court’s decision to — despite his own pending retrial after a hung jury — admit his testimony from that trial with use and derivative-use immunity in accordance with the U.S. Supreme Court’s decision in Kastigar v. United States, 406 U.S. 441 (1972). See also United States v. Oliver North, 910 F.2d 843 (D.C. Cir. 1990) (requiring full Kastigar hearing on use of non-immunized testimony and possible taint thereof). On January 12, Porter, proposing an expedited appellate schedule, had his request granted by the Court of Special Appeals, with abbreviated briefing and oral arguments in March.
One Week, Four Court of Appeals Cases, One Potential Blockbuster
By Michael Wein,
Well, we’re one week away until the Maryland Court of Appeals’ self-imposed deadline of Monday, August 31, 2015, for deciding all cases in the September Term. Per the “Pending Cases” page on the Court of Appeals’ website, four, count that, only four, decisions are left, one from April (State v. Dykes), one from May (State v. Waine), and two from June (State v. Westray and Wicomico County Department of Social Services v. B.A.). The two from June may not reflect any particular disagreements between the judges, but are pending simply because they were the most recently argued, or, in the case of Westray, because it will be decided in tandem with the Dykes case from April, as both involve issues about the right to discharge counsel. The “Questions Presented,” as posed on the Court of Appeals’ web page, for all remaining cases are listed below.
One Month to Go, Only Seven Cases Left! (With One Potential Blockbuster)
By Michael Wein
[EIC’s Update, 8/27/2014: The Court this morning decided Kulbicki, along with Spacesaver, and Brooks. It decided Raynor this afternoon.]
[EIC’s Update, 8/18/2014: The Court has since decided Chesapeake Bay, Peters, and NIHC. We’re still waiting on Spacesaver, Raynor, Brooks, and, notably, Kulbicki.]
As a follow up on previous posts by myself and members of this Blog, the Court of Appeals, under the helm of Chief Judge Mary Ellen Barbara, appears to be smoothly finishing work for the remaining cases from the 2013 Term by the self-imposed deadline of August 31, 2014. Per the handy “Pending Cases” link on the Court of Appeals’ website, discussed previously here, only seven cases from the term remain on the Court of Appeals’ docket. Read More…
Maryland Appellate Blog 