Maryland v. Kulbicki – New US Supreme Court Decision Helps Define Ineffective Assistance

Maryland v. Kulbicki, No. 14-848 (2015), a recent US Supreme Court decision, helps to further define the concept of ineffective assistance of counsel for purposes of Sixth Amendment claims.  The case is important for anyone considering a motion for post-conviction relief in State court or a habeas petition in Federal court based upon an argument that their attorney did not perform properly.

In 1993, Kulbicki shot his paramour in the head at close range.  His trial commenced in Maryland state court in 1995.  The prosecutor called an FBI agent as an expert witness to testify on the subject of Comparative Bullet Lead Analysis (“CBLA”).  At the time of trial, CBLA was accepted by the relevant scientific community as valid.  The expert testified that the composition of elements in the molten lead of a bullet fragment located in Kulbicki’s truck matched the composition of lead in a bullet fragment removed from the victim’s brain, and that one would expect to find such a similarity when examining two pieces of the same bullet.  The expert also testified that a bullet taken from Kulbicki’s gun did not exactly match the two fragments, but was sufficiently similar to conclude that the two bullets probably came from the same package.  In light of this and other evidence, Kulbicki’s jury convicted him of first-degree murder.

Kulbicki subsequently filed a petition for post-conviction relief, which he amended in 2006 to include a claim that defense counsel was ineffective for failing to question the legitimacy of CBLA.  Between the time of the conviction and 2006, CBLA had fallen out of favor, was no longer generally accepted by the scientific community, and was therefore inadmissible.

Kulbicki later abandoned his CBLA claim, but the Court of Appeals of Maryland ultimately vacated his conviction on that ground alone.  According to the Maryland court, Kulbicki’s defense counsel should have located a 1991 report coauthored by the State’s CBLA expert which discussed, among other things, potential technical flaws in CBLA evidence.  Counsel should have used this report to cross-examine the State’s expert on these flaws, and the failure to do so rendered counsel’s representation constitutionally deficient.

The US Supreme Court reversed.  The Court noted that in 1995, CBLA was widely accepted and courts regularly admitted the type of CBLA evidence presented at Kulbicki’s trial.  The Court recalled its rule that the reasonableness of counsel’s conduct must be assessed at the time of the challenged conduct.  In the Court’s view the Maryland Court of Appeals did nothing more than merely speculate as to whether a different trial strategy might have yielded a different result.  The Court observed further that given the pre-internet, “card catalog” method of locating such materials, it would have been almost impossible for defense counsel to even find the report.  Kulbicki’s attorneys did what reasonable attorneys should have done in 1995 – knowing that CBLA evidence was accepted under then-prevailing norms, they cross-examined based upon what was then viewed as an understanding of the field.  Finally, the Court stated that the Maryland court apparently demanded perfect advocacy, as opposed to the reasonable competence guaranteed by the Sixth Amendment.

This case makes three important points for defendants asserting ineffective assistance claims.  First, defense counsel’s  challenged conduct will be assessed in light of what was reasonable given the surrounding facts and circumstances in effect at the time the conduct occurred.  Next, the fact that a particular trial strategy does not yield the desired result will not automatically render counsel’s conduct constitutionally deficient.  Any number of attorneys can decide to adopt different strategies.  They can all be reasonable under the circumstances, even if only one of them would ultimately lead to a “not guilty” verdict.  Finally, the Constitution does not guarantee perfect performance by a defense attorney; rather, it guarantees reasonably competent performance under the circumstances.

James S. Friedman LLC tracks the law governing ineffective assistance of counsel claims, and represents clients seeking post-conviction relief in New Jersey state court, and habeas relief in federal court.  If you or someone you know wants to file a motion for post-conviction relief in a New Jersey trial court, or a petition for habeas relief in Federal district court, contact the firm immediately for a consultation.

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