Perjury fears throw cases into turmoil
Forensic expert's testimony in myriad criminal trials is suspect
By Jennifer McMenamin
April 22, 2007
With the name "Innocence Project" on her office door, it's not surprising that Michele Nethercott receives a lot of mail from people locked up in Maryland's prisons.
But in the past few weeks - as news spread that longtime police gun expert Joseph Kopera was found to have lied about his qualifications on witness stands across the state - the volume of letters has picked up.
So much so, in fact, that her plastic mailbox fell off the wall.
"It's been overflowing for about the last two weeks," said Nethercott, chief of the small unit of state public defenders who represent people they believe have been wrongfully convicted. "Some people write just because they read about it in the newspaper or they heard about it. And in some instances, people who asked us to review their cases months, or well over a year, ago are now writing back to say, 'Oh, by the way, Kopera testified in my case.'"
The first hearing to highlight Kopera's perjurious testimony in a challenge to a conviction will continue to unfold this week in a fifth-floor Baltimore County courtroom. In that case, defense lawyers are asking a judge to overturn former Baltimore police Sgt. James A. Kulbicki's murder conviction and life sentence, in part because of what they called Kopera's "inaccurate and exaggerated" ballistics analysis.
As the legal community closely watches those proceedings, prosecutors, police departments and defense attorneys across the state are taking steps to identify and review cases that the ballistics expert worked on during a career that spanned nearly four decades.
In the six weeks since state police announced that Kopera had killed himself after being confronted with evidence of his falsified credentials, Baltimore County prosecutors have begun reviewing the more than 70 cases that included Kopera's analysis, and have asked the county police crime lab to retest ballistics evidence in cases in which his analysis and testimony were deemed "material" to a conviction.
Baltimore City public defenders have identified 55 felony cases in which Kopera testified and have begun collecting the police reports, court transcripts and other documents needed to determine what role his analysis played in the defendants' convictions.
And state public defenders met Friday with Baltimore police officials to discuss a way to identify cases that Kopera worked on during his 21 years in the department's crime lab and find the "bench notes" that he made while examining bullets, weapons and other ballistics evidence.
"We're still very much at the beginning of all this," Nethercott said. "The question is how or what resources can be brought to bear to start on this. Because everywhere you go, it's a mammoth task."
As a firearms examiner - first in Baltimore and then with the Maryland State Police - Kopera collected and analyzed bullets, shell casings, weapons and other forensic evidence. A favorite witness of prosecutors, Kopera had an authoritative and engaging command of the material he was called upon to describe for jurors, lawyers said.
Questions regarding his credentials were raised this year by attorneys assigned to the state's Innocence Project. They discovered that Kopera not only claimed in court to have college degrees that he did not earn, but also forged at least one document that he offered to the lawyers to verify his qualifications.
Kopera, 61, died of a self-inflicted gunshot wound March 1 - the day his sudden retirement took effect.
Several police investigators and lawyers said then they were shocked to hear that Kopera, who was held in high regard in the law enforcement community, had lied about his credentials. Some said they doubted whether the discovery necessarily meant Kopera had been dishonest about his scientific findings.
Since then, additional perjured testimony has been discovered, defense attorneys say, including Kopera's claims that he taught at local colleges and that he was certified by a national association.
In court last week in Baltimore County, Kulbicki's attorneys told a judge that Kopera's perjurious testimony goes well beyond his listing of qualifications and into the substance of his testimony.
During two days of hearings that are expected to continue this week, defense expert witnesses said that Kopera's testimony in the case was inconsistent with his own reports and notes, and that his conclusions were incorrect.
One of those attorneys, Suzanne Drouet, said that recent retesting of the bullet fragments in Kulbicki's case turned up different results than Kopera reported.
Baltimore County prosecutor S. Ann Brobst, who is handling Kulbicki's case, declined to discuss the test results or release a copy of the examiner's report before it is introduced in court. Michael J. Thomas, the county police firearms examiner, is expected to take the witness stand tomorrow.
The Kulbicki hearings are significant and provide something of a test case for defendants hopeful that they might win new trials because of the Kopera revelations. But the decision of the judge considering Kulbicki's request to overturn his conviction will not have a binding effect on those other cases.
"I don't believe the legal landscape right now is entirely clear in terms of what a defendant would have to show [to receive a new trial]," Nethercott said. "Is it going to be sufficient to show that [Kopera] lied about his credentials? I would think probably not."
As was the case with the Kulbicki murder investigation, most criminal cases are built on a variety of evidence, such as suspect confessions, eyewitness accounts and the testimony of the medical examiners who conduct autopsies and the forensic scientists who analyze blood, hair, fingerprints and other physical evidence. Ballistics evidence is rarely, if ever, the only piece of the puzzle presented to judges and juries at trial.
Since the discoveries about Kopera's falsified credentials, attorneys across the state predicted a sweeping review of his work, perhaps forcing new trials for some of the hundreds of people he helped convict in his long career.
That review is now under way.
A spokeswoman for the U.S. attorney's office in Maryland said federal prosecutors have reviewed cases that involved Kopera's work but have not needed to take any action.
In Baltimore County, where the Police Department has for years operated its own crime lab, prosecutors sifted through old cases to find those in which county detectives were still relying on Kopera and the State Police for ballistics analysis.
Robin Coffin, a Baltimore County deputy state's attorney, said her staff identified 72 such cases and sent letters to each of those defendants, their attorneys and the public defender's office.
"We're sort of jogging their memories for them," she said. "We are taking that step of informing them, 'We have identified you, Mr. Defendant, as someone whose case Mr. Kopera testified in.'"
In some of those cases, Coffin said, prosecutors determined that Kopera's testimony did not play a pivotal role. She mentioned, for instance, cases that included a confession and cases in which Kopera testified simply to identify the caliber of bullets or the kind of weapon used in a shooting but did not link that evidence to the defendant.
In cases in which Kopera's testimony was deemed "material" to obtaining a conviction, prosecutors asked police to find and retest the ballistics evidence, Coffin said. Of the four cases resubmitted so far, only tests in the Kulbicki case are complete, she said.
In Baltimore City, the number of cases involving Kopera's work easily stretches into the thousands, Nethercott said.
Police officials, public defenders and the director of the city's criminal justice coordinating council discussed Friday the Police Department's logs of its firearms examiners' work. By manually checking those records, which date to 1970, police should be able to compile a list of every case in which Kopera conducted any ballistics testing or analysis, Nethercott said.
That list can then be used to manually sift through archived police files to find Kopera's reports, bench notes and other documents - all of which will be compared with his courtroom testimony for possible inconsistencies, she said. Where Kopera's testimony contributed to a conviction, defense attorneys will try to locate the physical evidence to submit it for new testing.
Taking the review beyond the city's borders, the chief public defender for Maryland sent letters last month to every state's attorney's office, asking for their help in identifying cases Kopera worked on and, if possible, tracking down reports and bench notes from those files.
"That is such an overwhelming task," Nancy S. Forster, chief of the state public defender's office said then. "To be realistic, we will probably end up prioritizing as much as we can."
Despite the tedious work inherent in such a review, Forster said, the legal community has no choice.
"With all due respect to the Kopera family, because I think this is a tragedy for them and I feel terrible for them that this is how Mr. Kopera might be remembered, but this is not just about puffing a resume," she said. "This is a person who, on case after case over the course of 30 years, committed perjury.
"It seems to me that if you're willing to lie to that extent about something that absolutely would have been easily verifiable, one has to wonder how many other things you've lied about. That's why just getting a transcript doesn't satisfy us. That's why we want to see the bench notes and reports. That's why we need to compare them to his testimony."
Sun reporter Matthew Dolan contributed to this article.
||Truth in Justice