Maryland v. Kulbicki

In its first decision of the 2015-2016 term, the Court decided Maryland v. Kulbicki, released as a per curiam decision on October 5, 2015. Focused on the Sixth Amendment, specifically the intricacies of the right to trial counsel, the Supreme Court clarified the rules surrounding dismissing counsel as ineffective.

James Kulbicki, in 1993, shot and killed his mistress with whom he had been in a paternity dispute. Kulbicki was given a state-appointed lawyer, as provided by the Sixth Amendment and Gideon v. Wainwright. Kulbicki lost his case when state prosecutors used experts in the Comparative Bullet Lead Analysis (CBLA, for short), a type of testimony which used careful analysis of bullet fragments to determine their source. At the time, this was considered the most comprehensive school of thought in criminal prosecution of the sort, but it has since become antiquated. Kulbicki, who had filed a petition to secure relief from his conviction, added in 2006 to his petition that his defense attorney, who didn’t contest the CBLA theory, should be rendered as ineffective.

As decided in the 1984 case Strickland v. Washington, the Court can deem appointed counsel as ineffective, and thus effectively violating the defendant’s right to counsel, if the counsel is both deficient (meaning counsel made several egregious errors) and prejudicial (meaning counsel prevented the defendant from having a fair trial). While the lower state courts denied Kulbicki’s claims, the Court of Appeals of Maryland followed Kulbicki’s reasoning. While Kulbicki had abandoned the argument that his counsel was providing ineffective assistance by not challenging the CBLA, the Maryland Court of Appeals dove into the issue and found in favor of Kulbicki, deciding that the lawyer should have discovered a 1991 report by Agent Ernest Peele, who testified about CBLA against Kulbicki in the original case, that “presaged the flaws in CBLA evidence.” In other words, the Maryland Court of Appeals argued that Kulbicki’s lawyer was ineffective because he didn’t find a specific report that argued against CBLA by one of CBLA’s advocates. Granted, this would have been good lawyering. But is it necessary to satisfy the Sixth Amendment requirement of effective counsel?

The Supreme Court disagreed, 9-0. Kulbicki’s lawyers could have been better, to be sure. But that certainly does not render them ineffective. Effectiveness, the Supreme Court is essentially arguing, is a spectrum, and to not be on one end does not automatically place counsel at the other end. In 1995, the decision states, CBLA was a widely-believed theory. Further, the alleged 1991 report concluded that CBLA was effective. But that’s neither here nor there. Kulbicki’s lawyer wasn’t ineffective for not spending a lot of time trying to test a widely-accepted theory.

Additionally, the Court questioned whether the lawyer would be able to find the report. The Court of Appeals used one citation of the study which they found twenty years later in the age of Google. Hindsight is 20/20, especially when the past had limited information-searching technology. The report had be disseminated to various libraries in 1994, but that doesn’t necessarily make it very accessible, especially if the libraries were not close to the trial. And even then, they would have to search through a card catalogue, find the whole report, and comb through it, looking for any signs it might be “at odds with the scientific method.” The Court likens this approach to deciding to look for a needle in a haystack when one isn’t even sure there is a needle there in the first place. In other words, it wouldn’t have made sense.

The Court’s decision limits the Sixth Amendment, but only ever so slightly. This is the narrowest kind of decision; just a question about very specific instance that likely holds no precedent. In fact, just last year, the Court issued another decision on a very similar subject, but decided in the opposite direction. These cases have little to do with ideology but more about the specific merits of the case.

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