Hearing a test of forensic results
Expert's lapses fuel retrial bid
By Jennifer McMenamin
March 10, 2007
Defense attorneys for James A. Kulbicki offered a string of alibi witnesses, and he flat-out said he didn't do it. He was, after all, a Baltimore police sergeant, and, he insisted, not a killer.
But prosecutors built their murder case on a pickup truck, blood and what might have been fragments of skull, and Kulbicki was sentenced to life in prison without parole. A state police ballistics expert named Joseph Kopera helped convict the officer by saying that bullet fragments found in his truck and in his mistress' head could have come from his gun - testimony that is now being questioned.
Responding to news that Kopera recently killed himself after being confronted with evidence that he lied about his credentials, defense lawyers said this week that the revelation could force new trials for some of the hundreds of people he helped convict in his long career.
The Kulbicki case - scheduled for a court hearing next month to consider his request for a new trial - could well provide the first test.
His attorneys challenged Kopera's findings and assertions in court papers filed last year, arguing that the firearms examiner's testimony did not match his notes. And that was before they discovered that Kopera claimed to have degrees that he never earned.
"We had major questions before about the reliability of his results and the conclusions he came to," assistant public defender Suzanne Drouet said of Kopera's testimony in the Kulbicki case. "Now that we see he has taken liberties with respect to his own background, we think it's reasonable to assume that he was not particularly bound to the truth with respect to his ballistics testimony either."
Questions regarding Kopera's credentials were raised several weeks ago by state public defenders, including Drouet, working with the Innocence Project, a small unit of lawyers who represent defendants they believe have been wrongfully convicted. Michele Nethercott, chief of the unit, said Kopera not only claimed in court to have degrees that he did not earn but also forged at least one document that he offered to the Innocence Project attorneys to justify his qualifications.
State police investigators learned while looking into the circumstances surrounding Kopera's death that the lawyers had confronted him. Kopera, 61, died from a self-inflicted gunshot March 1 - the day his sudden retirement took effect.
He had been married for more than 30 years, and the couple had two adult children and a grandchild, a longtime family friend said yesterday.
Kopera worked for 21 years in the Baltimore Police Department's crime laboratory before joining the state police in 1991. He was promoted nine years later to supervisor of the firearms and toolmarks unit, a civilian division responsible for collecting and then analyzing bullets, shell casings, weapons and other forensic evidence.
On Thursday afternoon, after verifying that Kopera had lied about his credentials, state police officials began notifying prosecutors and public defenders in each of Maryland's 24 jurisdictions as well as lawyers in the state attorney general's office, the U.S. attorney's office for Maryland and prosecutors' offices in Delaware, Pennsylvania and Virginia.
Area prosecutors said they had been told of the discovery, and both the top prosecutor in Baltimore County and the U.S. attorney for Maryland indicated they would review their case files that involved Kopera's analysis or court testimony.
But many lawyers cautioned that while many cases might need to be reviewed, questions about Kopera's testimony in a case would not necessarily be enough to overturn a conviction and warrant a new trial.
"As tempting as it may be - and I'm a defense lawyer now - to say, 'My God, every case he ever touched is going to go away because he very clearly lied about his educational background,' I don't think that's how it's going to happen," said Brian Murphy, who knew and worked with Kopera in the 1980s when he was a Baltimore police firearms examiner and Murphy was prosecuting murders and shootings in the city.
But like other lawyers interviewed this week, Murphy acknowledged that Kopera's lies about college degrees - something he did not need for his job with the state police or to be qualified in court as an expert witness - could call into question his credibility on issues of greater importance.
"Falsus in uno, falsus in omnibus," the Baltimore criminal defense attorney said, quoting a Latin phrase often found in lawyers' legal briefs. "If he lied about one thing, maybe he lied about everything. That's the rub."
Kopera's testimony in the 1993 and 1995 murder trials of Kulbicki was significant, say attorneys now representing the former police sergeant in his quest for a third trial.
Gina Marie Neuslein, 22, a Royal Farms Store employee, was found dead Jan. 10, 1993, in Gunpowder Falls State Park, near the archery range.
Kulbicki, a married father and a 10-year police veteran, was arrested and charged with murder after investigators discovered that he had had an affair with Neuslein and was involved with her in a paternity dispute over an 18-month-old child.
The state argued at trial that Kulbicki picked up the woman the afternoon of Jan. 9, shot her while she was sitting in the front passenger seat of his pickup truck and dumped her body in the state park, according to court records. Prosecutors built their case with ballistics evidence, blood and DNA testing and the testimony of a woman who told detectives that she spotted the police sergeant driving through the park the evening before Neuslein's body was found there.
Defense attorneys summoned witnesses from a shoe repair store, dry cleaners, an electrical contractor's house and a hardware store to confirm that they had seen Kulbicki at those locations during the time when prosecutors said he was likely killing Neuslein and disposing of her body, according to court records.
Testimony of Kopera and other forensic experts helped shift the weight of evidence, say lawyers now representing Kulbicki.
"It was a significant part of their evidence," Drouet said of prosecutors. "They're the ones who said the bullets were a major link," Drouet said.
Baltimore County prosecutor S. Ann Brobst, who is handling the Kulbicki post-conviction proceedings, could not be reached for comment yesterday. Reached by phone, Neuslein's sister, Jennifer Getz, declined to comment.
Kopera told jurors that he could neither conclusively link nor exclude bullet fragments - one found in the officer's pickup truck and another collected during an autopsy from Neuslein's head - to Kulbicki's off-duty police weapon, a .38 caliber Smith and Wesson revolver.
But measurements of the bullet markings recorded in Kopera's notes should have decisively excluded the Smith and Wesson as the source of the bullet fragment found during the victim's autopsy, according to a defense attorneys' motion for a new trial. And his testimony during trial did not match the notes he made on his "bullet work sheet" during his examination of the evidence, according to the court filing.
Kopera's testimony was supplemented by an FBI examiner who connected the bullet fragments to unspent cartridges removed from Kulbicki's revolver through a test that defense attorneys say has since been discredited and is no longer used by the FBI. [For more information regarding this test -- bullet lead-matching -- see http://truthinjustice.org/paglia.htm, http://truthinjustice.org/FBI-ballistics.htm, http://truthinjustice.org/FBI-ballistics2.htm, and http://truthinjustice.org/judges-junk.htm]
In court documents, prosecutors noted that Kopera's analysis of the bullet fragments was limited by their mutilated condition. Their document also included an affidavit from Kopera signed in September.
Sun reporter Nick Shields contributed to this article.
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