by Brandon L. Garrett, Justice Thurgood Marshall Distinguished Professor of Law, University of Virginia School of Law. Last fall, Harvard University Press published his new book, Too Big to Jail: How Prosecutors Compromise with Corporations.
Yesterday, the Supreme Court issued a per curiam ruling in Kulbicki v. Maryland. The ruling was brief but unusual; the Court does not often take certiorari to review state habeas rulings. Here, the Maryland Court of Appeals had granted habeas to a prisoner whose trial lawyer had utterly failed to challenge an FBI agent’s testimony about Comparative Bullet Lead Analysis, or CBLA. The FBI agent did not find an “exact” match but sufficient similarity to conclude that the bullet that killed the murder victim came from Kulbicki’s weapon (and also matched a fragment in his truck). The problem was that this CBLA bullet analysis was flawed science. The National Academy of Sciences concluded in a 2004 report that "The available data do not support any statement that a crime bullet came from a particular box of ammunition.” Fundamental flaws in the assumptions and empirical basis for CBLA analysis led Maryland courts to reject CBLA evidence 15 years later, and the FBI to itself later disavow and discontinue use of the technique in 2005.
Should Kulbicki’s lawyer have known back in 1995, at the time of the trial, that this was flawed science? Kulbicki argued that a report co-authored by the analyst showed how the FBI analyst had doubts even in 1991 “that bullets produced from different sources of lead would have a unique chemical composition.” The Court rejected the notion, saying that “At the time of Kulbicki’s trial in 1995, the validity of CBLA was widely accepted, and courts regularly admitted CBLA evidence until 2003.” Further, “Given the uncontroversial nature of CBLA at the time of Kulbicki’s trial,” it would be asking lawyers to "go looking for a needle in a haystack” to search for such evidence that the forensics were flawed.
Compare the Court’s ruling in Kulbicki to last year’s per curiam opinion in Hinton v. Alabama, another case examining a lawyer’s failure to adequately develop forensic evidence at trial, including firearms and tool mark analysis. The outcome was different. In Hinton, a death penalty case, the Court found the lawyer to have been constitutionally ineffective. (On remand, Hinton’s conviction was vacated). From the beginning, the tone in the two per curiam opinions could not have been more different. In Hinton, the Court correctly stated the Strickland v. Washington constitutional standard for ineffective assistance of counsel as asking “if his trial attorney’s performance falls below an objective standard of reasonableness and if there is a reasonable probability that the result of the trial would have been different absent the deficient act or omission.” In Kulbicki, the Court oddly misstated the standard as “meaning his errors are ‘so serious’ that he no longer functions as ‘counsel,’ and prejudicial, meaning his errors deprive the defendant of a fair trial.” That description of the Strickland test was, at the very least, a casual and imprecise one.