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Oct 06 2015

Get It Right The First Time- Successful Appeals for Bad Lawyering are Rare

The Supreme Court’s first decision of its new term highlighted the rarity of winning an appeal based on ineffective assistance of counsel. In Maryland v. Kulbicki the Supreme Court overturned Maryland’s highest court in upholding the conviction of a man convicted almost exclusively on faulty scientific evidence. James Kulbicki was found guilty of killing his mistress by shooting her in the head at close range. Other than motive (they were locked in a bitter paternity suit that was coming up for a child support hearing) all the prosecution had was that a bullet fragment found in the defendant’s truck matched a bullet fragment removed from the victim. FBI Agent Ernest Peele testified as the State’s expert on Comparative Bullet Lead Analysis, or CBLA. Peele testified that the composition of elements in the molten lead of a bullet fragment found in Kulbicki’s truck matched the composition of lead in a bullet fragment removed from the victim’s brain; a similarity of the sort one would “‘expect’” if “‘examining two pieces of the same bullet.’” Pretty strong evidence – except that it was contrary to a research study Pele had done and contrary to a lecture he and other agents had given on CBLA. One of the many findings of the report was that the composition of lead in some bullets was the same as that of lead in other bullets packaged many months later in a separate box. Rather than conduct “further research to explain the existence of overlapping compositions,” the authors (including Peele) “speculated” that coincidence (or, in one case, the likelihood that separately packaged bullets originated from the same source of lead) caused the overlap. This research and additional later research established that CBLA is completely flawed junk science and CBLA has not been used since 2003.

courtroom_1_md[1]But Kulbicki’s defense lawyers never found the Peele report that contradicted his own testimony. In fact they admitted that they conducted no research into any of Peele’s past writings or lectures. None. Instead they only cross examined him on the accuracy of his findings of the similarities between the two samples. The Maryland Court of Appeals held that this deficiency deprived the defendant of his right to effective assistance of counsel. The Supreme Court in a per curiam opinion (meaning it was issued by the entire court in agreement with no one judge delivering the opinion) held that it was too much to expect a lawyer in the days before the Internet to have found the Peele report. But that’s just not so. Kulbicki’s lawyers had shown that the Peele report on CBLA was well-circulated and discussed in forensic scientific conventions. The court seemed to completely overlook that part of their brief. And even before the days of the Internet, you could go to a public library and look up articles and books by author’s last names. I crossed alot of experts back in the pre-web 90s using material I found in something called the card catalog and the Periodical Review, which listed every magazine article by subject and author’s name. My bosses would have hung me out to dry if I tried crossing an expert without doing some research to find out if he had written anything about the subject that would be useful in cross.

But the Supremes reminded us all that the Constitutional right to an effective lawyer does not mean you get a perfect lawyer or even an excellent lawyer. It only means you get an adequate lawyer. And just because your conviction was based on now-defunct junk science that was not subjected to any cross examination doesn’t change that. Its just the latest line in a string of cases from this court that narrowed what it means to have effective counsel.

Just this past week, I received a denial of my own appellate client’s ineffective assistance of counsel claim. The many failings of his trial lawyer were labeled “trial strategy” and my skewering of the stupidity of the strategy was defined as “hindsight.” In the three cases of wrongful conviction I have handled, poor lawyering was a key source of the wrongful conviction. Yet all three defendants (all of whom were later exonerated) appealed their convictions to courts that only paid casual lip service to the ineffective assistance of counsel claims.

So what’s the message? The initial trial, the initial lawyer – remains a defendant’s best shot. Counting on an appeal based on poor lawyering is a mistake. Litigants would be wise to spend time choosing the right lawyer first time around. Ask questions, interview as many as you can, get involved in your case and his strategy because its like that Billy Joel song says – “Get it right the first time, that’s the main thing.”

Follow me on twitter @oscarmichelen

4 comments

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  1. Gloria Wolk

    This is a sad story. There was no other evidence; Kulbicki was a police officer; he’s serving a life sentence without parole. Typical investigators, they stop investigating at the first suspect.

    The Justices have no direct experience with criminal defense. Not one.The nearest they came in their history is as prosecutors.

    Even Sotomayor, who one might expect to have compassion for someone like Kulbicki, at least remand for a new trial. But she was instrumental in rejecting the appeal of Jeffrey Deskovic, a teen sentenced to life and later, despite her bias in favor of upholding convictions, not only exonerated but today he uses his compensation and experience to help others who were wrongly convicted. Jeffrey Deskovic does more to aid society than all those on the Supreme Court..

    It depresses and angers me to hear about these appeals being rejected again and again. A poor family may sell their home and car (as did Bryan Banks; mother) and still get a raw deal. Perhaps she didn’t know how to screen lawyers.

    Most defendants are stuck with public defenders or assigned private counsel, often newbie lawyers who have little experience, no mentors, no support staff, and are overwhelmed with cases. Here in North Carolina, private assigned counsel are paid $55/hour. And most counties are not in the public defender system. there is no counsel other than PAC. Since most defendants are indigent, if they can’t pay bail, they are stuck in jail until they plead, just to get out.

    1. Oscar Michelen

      Here in NY assigned counsel get a whopping $75 per hour. The main point as you note is that access to a competent effective lawyer in the first place will help prevent wrongful convictions from occurring. Great comment Gloria thanks for posting.

      1. Terence A. Russell

        The state of pay for indigent defense is appalling everywhere. We get $70 per hour locally, flat fee for pleas, flat rate for trial days, and are limited to 10 hours of out of court time. There is no payment for the other court appearances in many jurisdictions. Here locally you get $70 for appearing in court, but that applies to a single case. If you are handing several matters on that same day, the $70 can be charged to only one of those cases. In contrast, in my CPS appointments, I am paid $300 per court appearance per case. It seems that Texas is more interested in protecting those who are destined to lose their kids to the state than those who will be losing their life or liberty.

        1. Oscar Michelen

          Terence – that is appalling especially the rule that only allows you to get $70 per day regardless of how many cases you are handling that day. The problem is no politician has the guts to fight for this issue because they know how their opponents use it to make them look “soft on crime.”

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