A Murder Conviction Torn Apart by a Bullet
In a 1995 Maryland Case, Key Testimony and the Science Behind It Have Been Discredited
By John Solomon
Washington Post Staff Writer
Monday, November 19, 2007
Former Baltimore police sergeant James A. Kulbicki stared silently from the defense table as the prosecutor held up his off-duty .38-caliber revolver and assured jurors that science proved the gun had been used to kill Kulbicki's mistress.
"I wonder what it felt like, Mr. Kulbicki, to have taken this gun, pressed it to the skull of that young woman and pulled the trigger, that cold steel," the prosecutor said during closing arguments.
"If this could happen to my client, who was a cop who worked within this justice system, what does it say about defendants who know far less about the process and may have far fewer resources to uncover evidence of their innocence that may have been withheld by the prosecution or their scientific experts?" said Suzanne K. Drouet, a former Justice Department lawyer who took on Kulbicki's case as a public defender.
Prosecutors are fighting to uphold Kulbicki's conviction, arguing that there is still plenty of evidence that proves his guilt.
"While much of the evidence against the petitioner falls into the category of circumstantial evidence, the state presented a mountain of evidence, both direct and circumstantial," prosecutors argued in a motion earlier this year opposing Kulbicki's request for a new trial.
Police had lots of circumstantial evidence. A jacket with the victim's blood on the sleeve was found hanging in Kulbicki's closet. And four bone chips and a bullet fragment were found in his truck. Tiny drops of blood also were found in the truck, and one spot of blood on the holster of his off-duty weapon. But the blood spots were so small and their quality so poor that they could not be matched to the victim.
Kulbicki's attorneys offered several witnesses who provided an alibi. The defense team also uncovered evidence that the bloody jacket had been worn by Kulbicki's teenage stepson. The stepson denied being involved in the killing.
While Kulbicki's request for a new trial has been pending, a Maryland appeals court recently overturned another murder conviction that relied on the same FBI bullet-matching technique, discrediting it as "not generally accepted" science.
"We all have roles to play in the criminal justice system, and prosecutors ordinarily don't have scientific backgrounds," said Assistant State's Attorney S. Ann Brobst, one of the Kulbicki prosecutors.
"For this office it is troubling and disappointing that we may potentially be faced with the possibility of having to retry a man who we fervently believe is guilty of first-degree murder of an innocent woman because we relied on scientific experts and reputable labs -- in one case, the FBI -- which this office and the public believed to be stellar in terms of reputation."
Prosecutors must convince the courts that the scientific evidence they introduce is deemed reliable by the scientific community. In addition, any information they possess that could assist the defense in proving innocence must be turned over before trial. Coincidentally, the case law that imposed that honor system on prosecutors originated in Kulbicki's home state during the 1963 U.S. Supreme Court ruling in Brady v. Maryland.
The long-shot effort to overturn Kulbicki's conviction rests on defense arguments that those rules were violated.
A Different Story
Kulbicki, now 51, was arrested on Jan. 13, 1993, three days after the body of his mistress, Gina Marie Nueslein, was found near a garbage can in Gunpowder Falls State Park in suburban Baltimore. She had been shot in the head, execution-style.
The Baltimore city patrol sergeant had cheated on his wife with Nueslein, had fathered a child with her and was engaged in a contentious paternity dispute with the victim when she was abducted and killed.
The prosecutors had one witness who said that she had seen Kulbicki at the park around the time Nueslein's body was dumped, but she identified Kulbicki after seeing his arrest on TV and not in an independent lineup.
The defense offered testimony from several shopkeepers -- a dry cleaner, a hardware-store owner and a shoe repairman -- as well as Kulbicki's wife, who said that he was half an hour away when Nueslein was killed. The defense used a sales receipt to link Kulbicki to the hardware store.
Kulbicki was found guilty in late 1993, but that conviction was overturned because of concerns that he had not been allowed to fully testify in his defense. He was retried in 1995 and was again convicted.
Kulbicki continued to maintain his innocence, focusing specifically on the prosecution's science. He had an unexpected advocate: the wife he had cheated on stood steadfastly behind him.
Kulbicki's wife's support and the suspicions about the science lured Drouet to take the case as part of the Maryland Office of the Public Defender Innocence Project, which files post-conviction appeals. Before becoming a public defender, Drouet, 47, served as a lawyer at the Justice Department's Office of the Inspector General, where she oversaw an investigation of false testimony by one of the FBI lab's bullet-lead experts.
Soon her penchant for pursuing scientific cheating would shake up the Kulbicki case. Drouet uncovered evidence that Maryland State Police firearms expert Joseph Kopera -- the prosecution witness who had linked the off-duty revolver to the murder -- had padded his rÂ¿sumÂ¿ and lied on the witness stand about his credentials.
Kopera testified at the 1995 trial that he had an engineering degree from the Rochester Institute of Technology and a mechanical engineering degree from the University of Maryland. Drouet contacted both schools, whose registrars said that Kopera never attended their programs. A University of Maryland transcript that Kopera had submitted after he was questioned to substantiate his credentials was deemed a forgery by the school's registrar, court records show.
Confronted with the evidence, Kopera, 61, abruptly retired Feb. 28 and committed suicide a day later. His three decades of work in scores of other cases statewide is now under scrutiny by the state police.
Prosecutors conceded to the court that "Kopera misspoke regarding certain degrees he claimed to have obtained," but they argued that it was not grounds for reversing Kulbicki's conviction. "Kopera did not perjure himself at the trial, because testimony concerning his degrees was not material," they told the judge.
Drouet's sleuthing did not stop there.
She insisted on obtaining Kopera's lab notes that documented his initial examinations of Kulbicki's gun. The formal firearms reports were turned over to the defense, but the notes he used in producing those reports were not given to the defense at either trial, Drouet alleged.
The notes conflicted with nearly every major assertion that Kopera had made at trial, a review by The Washington Post found.
Prosecutors told jurors that Kulbicki killed Nueslein in his pickup truck, putting his off-duty gun to her head and firing a single shot. Part of the bullet stayed in her brain. Another fragment passed through her skull and struck the passenger-side door, leaving an indentation. That fragment landed in the back seat of the truck, prosecutors said.
Kopera had testified that the bullet fragment recovered from the victim's head and the one found in Kulbicki's truck were of a "large" caliber, at least a .38 or .40. That would make them consistent with bullets fired from Kulbicki's .38-caliber revolver.
But Kopera's examination notes told a different story. For the bullet fragment recovered from the victim's brain, Kopera declared the caliber "medium." For a second fragment recovered in the truck, he put a slash mark in the caliber field of his notes to indicate that it could not be determined.
Kopera also testified that Kulbicki's weapon was in a "cleaned condition," allowing prosecutors to suggest to jurors that the defendant had sanitized the weapon to remove any blood or gunpowder residue and to hide the fact that it had been recently fired. "It's obvious that he cleaned the gun, because there was no evidence of recently, recent firing," a prosecutor told the jury. "Well, of course not. I am -- anyone would know that if you're going to keep the gun, you should clean the gun. And he cleaned the gun."
Once again, Kopera's notes told a different story.
"Residue in barrel: Yes. Bore condition: Dirty," his notes stated, suggesting that the gun had not been cleaned.
Gun barrels are made with grooves to help bullets travel in a straight path. The barrels leave on bullets impressions known as "lands" and "grooves," which experts measure to match bullets to the guns that fired them.
Kopera testified that he could not conclusively match the markings on the bullet fragment taken from Nueslein's head to Kulbicki's off-duty Smith & Wesson revolver. But that still left open the possibility that the fragment could have come from Kulbicki's gun.
Yet when Drouet finally received Kopera's lab notes, she found that the bullet grooves on the fragment were significantly smaller than those on a bullet fired from Kulbicki's gun.
The fragment's land width was 0.072 inches and its groove width was 0.083 inches, while bullets fired from Kulbicki's gun had a land width of 0.100 inches and a groove width of 0.113 inches, the notes said.
The nearly 30 percent differences in sizes "show conclusively that the Smith & Wesson revolver found in Kulbicki's bedroom did not fire" the bullet that killed Nueslein, Drouet has told the court.
After Kopera committed suicide, prosecutors turned to a new firearms expert to examine the evidence. But his report only raised new questions about whether the markings could have come from Kulbicki's gun.
The groove markings that are impressed on fired bullets twist either to the right or the left. Kopera's 1993 exam made no mention of any twist markings on the bullet fragments, Drouet said. Likewise, the new examiner's report mentioned no twists, she said.
Drouet said that when she questioned the new firearms expert on the stand, however, he acknowledged that he had detected a "slight left twist" marking the fragment. Kulbicki's off-duty weapon makes right-twist markings, Kopera's notes say.
"Every critical part of Kopera's testimony was false, misleading, based on improper assumptions or ignored exculpatory information," Drouet told the judge in her motion seeking a new trial.
The prosecution countered that the twist and size of the bullet fragment markings could have been altered by torque when the fragments broke apart, court records show.
An Inexact Match
The only other evidence linking Kulbicki's gun to the murder came from the FBI lab. For more than three decades, bureau experts had testified that they could tie bullets or bullet fragments from crime scenes to suspects by comparing the lead content to bullets in an ammunition box or in a gun recovered from a suspect.
In 2005, the FBI abruptly stopped using the technique after studies -- including one by the National Academy of Sciences -- found that FBI witnesses had inappropriately suggested to jurors that they could match bullets to specific boxes or guns.
But back in 1995 when Kulbicki was convicted, the science was still in wide use.
Then-FBI examiner Ernest Roger Peele told jurors that the composition of the bullet fragment found in Nueslein's head matched that of the fragment found in Kulbicki's truck. Tests showed that the two fragments "matched at each and every element," Peele testified.
But when Drouet summoned new experts, including the FBI's retired chief metallurgist, she found that the fragments did not match exactly. Different quantities of one of the trace elements -- "arsenic 1" -- were found in the two fragments. Drouet accused prosecutors of ignoring the evidence. "Scientists may not pick or choose among test results," she told the court. FBI officials said that their scientists would sometimes use a second measurement known as "arsenic 2" to compare bullets when the first arsenic measure did not match.
Peele told jurors that the remaining bullets in Kulbicki's revolver did not match the fragments at the crime scene, but that one was close in composition. Prosecutors seized on the remark, suggesting to jurors that the bullets were "very nearly identical" and that this was proof of guilt.
"Out of the billions of bullets in the world, is this just a coincidence that that bullet ended up in the defendant's off-duty weapon?" a prosecutor asked.
In an interview, Peele declined to address Kulbicki or any other specific cases he worked, saying that he may be summoned to testify in appeals. But Peele said his bullet-lead analyses were never intended to be the sole scientific evidence against a defendant.
"It was part of the puzzle. It was part of the situation. It certainly was not a yes-or-no part of the situation. It was not to the point that it made the -- made the case 100 percent," Peele said.
During the trial, prosecutors told jurors that the bullet fragments Kopera and Peele analyzed were "a significant piece of evidence" and a "major link" to proving Kulbicki's guilt, court records show. But now the prosecution suggests that the evidence was not so crucial.
"The evidence from the ballistics examination and comparative bullet analysis was a small portion of the state's case," prosecutors argued in recent motions.
The effort to minimize the importance of the bullet matching comes after the Maryland Court of Appeals in 2006 reversed the murder conviction of Gemar Clemons on grounds that the FBI's bullet-lead science was not based on "generally accepted" scientific principles.
A DNA Factor
The prosecution still counters with one powerful piece of evidence. It says its tests show that the tiny bone fragments recovered from Kulbicki's truck contained DNA from Nueslein and almost certainly came from her skull when the gun was fired.
The analysis of the fragments, however, also is in dispute. One rather large human bone fragment was recovered from the truck after Kulbicki's arrest, but tests for the victim's DNA were inconclusive, Drouet said.
In between Kulbicki's two murder trials, the prosecution's experts tested three much smaller bone fragments that had been sitting for two years in vacuum cleaner bags amid other evidence gathered from Kulbicki's truck. It was those fragments that contained Nueslein's DNA.
During the second trial, the bone-fragment evidence was hard for Kulbicki to overcome. The prosecution expert testified that the DNA in the bone chips matched that of the victim on four of seven measurements and that the likelihood of bone chips matching another person was 1 in 640.
Once again, though, the lab notes Drouet obtained in recent months raised questions about the fragments and the science that was used to test them.
The 1995 notes from the private lab that tested the three smaller bone fragments for the prosecution say that the fragments were "believed to be contaminated."
Despite those concerns, the fragments were not sterilized before DNA testing, Drouet said.
The notes also say that the lab was told not to preserve a small portion of the fragments during the DNA testing, which might have allowed the defense to do its own testing. "OK not to save 10% of sample," the lab notes quote the state as saying. "Do what you can to get results."
It is unclear how the trial judge will rule on Kulbicki. But the case has already exposed a much larger question resonating throughout courts nationwide.
Clifford Spiegelman, a statistician at Texas A&M University who served on the 2004 National Academy of Sciences panel that sharply criticized the FBI's bullet-lead technique, was asked by the defense to review the case. Spiegelman said it mirrors others in which juries relied on prosecution scientists whose testimony is now considered overstated.
"What we're seeing is too many instances in which FBI or other prosecution scientists are simply doing what it takes to 'get their man,' " he said.
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