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Maryland’s Court of Appeals some years ago decided that Comparative bullet lead analysis (CBLA) evidence was unreliable and inadmissible. Testimony about CBLA was based on comparison of lead in bullets which supposedly came from the same distinctive vat of lead, which was used to posit that bullets that struck a victim came from the defendant’s weapon. In a recent unreported opinion in a case called Kulbicki v. State, Maryland’s Court of Special Appeals addressed the latest in a long line of appeals from a murder case involving such evidence.

Kulbicki had been convicted in 1995 of the murder of his ex-girlfriend. Without direct evidence tying him to the shooting, the prosecution relied on experts who testified about CBLA evidence linking the bullet that killed the victim to the defendant’s gun when she was shot in his truck. The State also called a ballistics expert, who was later found to have committed perjury in this and other cases in lying about his credentials. After several appellate decisions, the Maryland Court of Appeals in a 4-3 decision ruled that Kulbicki had been denied effective assistance of counsel under the sixth amendment, because his trial lawyer failed to discover scientific articles that discredited CBLA evidence and failed to effectively cross-examine the State’s experts.

The majority also found that there was a “substantial possibility” that the outcome of the trial would have been different had defense counsel acted appropriately. The U.S. Supreme Court actually took the case, and ruled that the defense lawyer’s supposed failures were not ineffective assistance of counsel. The Maryland Court of Appeals sent the case back to the trial court, specifically noting that Kulbicki could file for a writ of actual innocence.

The Maryland Rules of Criminal Procedure provide that a person convicted of a crime may file a petition for writ of actual innocence based on newly discovered evidence since the trial. Kulbicki did that, but the trial judge denied the request. The Court of Special Appeals reversed, holding that since the majority of the Court of Appeals had held that there was substantial possibility that overcoming the CBLA evidence would have led to an acquittal, a writ of actual innocence should be granted. The trial court will now decide whether to dismiss the case, or order a new trial without that evidence.

Thomas Patrick Ryan is a partner in the Rockville law firm of McCarthy Wilson, which specializes in civil litigation.

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