Baltimore Sun


DNA test said to counter Kulbicki
But ex-officer convicted of killing his mistress disputes its validity, says he's due third trial

By Jennifer McMenamin, Sun reporter
September 12, 2007

New DNA testing of bone fragments found in the pickup truck of a former Baltimore police sergeant convicted of killing his mistress has revealed that they came from the victim, Baltimore County prosecutors wrote in a new court filing.

Prosecutors said the new round of testing counters James A. Kulbicki's continuing claims of innocence. But defense attorneys say the new analysis is meaningless because the bone fragments were mishandled and contaminated when they were first collected 14 years ago.

The lawyers representing the former police officer have challenged his murder conviction and asked for a new trial, in part because of what they characterized as faulty scientific evidence.
Read the Motions [pdf format]

State's Motion

Kulbicki's Response

Some of the forensic evidence presented at Kulbicki's 1995 trial came from Joseph Kopera, the state police ballistics expert who killed himself in March after being confronted with evidence that he had falsified his credentials. Kulbicki's was the first case to use Kopera's perjured testimony in an attempt to overturn a conviction.

Kopera testified that bullet fragments found in Kulbicki's truck and in his mistress' head could have come from his gun -- testimony that a gun expert for the defense contradicted in April. Kopera did not participate in the analysis of the bone fragments found in Kulbicki's truck.

Previous testing of that evidence indicated that they were most likely human bone -- evidence that the veteran police officer explained at trial could have unknowingly been transferred from the scene of a homicide he was investigating to his clothes and then his truck.

But the new tests, prosecutors say, conclusively link the bone fragments to Gina Nueslein, the 22-year-old woman with whom Kulbicki had a three-year adulterous affair. Her body was found Jan. 10, 1993, in Gunpowder Falls State Park.

"I would like to hear an innocent explanation for how he has her skull fragment in his car," said prosecutor S. Ann Brobst, who ordered the new tests in April during five days of hearings on Kulbicki's request for a new trial. She said she received the test results Monday.

Defense attorneys say the new testing is irrelevant because the original bone fragments were irreparably contaminated when the analyst testing them handled a sample from the victim and the sample being tested in the same work space.

"The initial mishandling of the evidence so tainted these purported bone fragments that it doesn't matter if you test it once or twice or 50 times. If you test an unreliable sample, you get an unreliable result," said Suzanne Drouet, a defense attorney handling Kulbicki's case.

Kulbicki, 50, was twice convicted and sentenced to life in prison without parole in the fatal shooting of Nueslein.

Attorneys representing him now have asked Baltimore County Circuit Judge Kathleen G. Cox to grant him a third trial, in part, because of Kopera's perjurious testimony. The veteran state police firearms examiner killed himself after being confronted by Kulbicki's lawyers with evidence that Kopera had falsified his credentials and lied on witness stands across Maryland about college degrees that he never earned.

Attorneys and law enforcement officials continue to review cases in which Kopera collected and analyzed ballistics evidence over a career that spanned nearly four decades with the Baltimore Police Department and then the Maryland State Police.

Brobst, the prosecutor handling the case, said she was uncertain whether the DNA sample tested this year was part of the material that defense attorneys have argued was mishandled years ago.

She said prosecutors decided to have the evidence retested not because the analysis was relevant to the current challenge to Kulbicki's conviction but rather because the defendant "was going to repeatedly exult his innocence" through his lawyers.

"We thought that if we had forensic evidence that could pretty much definitively refute those claims -- not the case -- that we should go ahead and have it tested," Brobst said.

jennifer.mcmenamin @baltsun.com


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