Kulbicki vs. Hinton

This week, we will ask commentators to weigh in on the Supreme Court’s per curiam ruling in Kulbicki.  One jumping off point is a comparison to last year’s per curiam opinion in Hinton v. Alabama, another case examining lawyer’s failure to adequate develop forensic evidence at trial.  The outcome was different.  In Hinton, a death penalty case, the Court found the lawyer to have been constitutionally ineffective.  (On remand, Hinton’s conviction was vacated).

From the beginning, the tone in the two per curiam opinions could not have been more different.  In Hinton, the Court correctly stated the Strickland v. Washington constitutional standard for ineffective assistance of counsel, as asking “if his trial attorney’s performance falls below an objective standard of reasonableness and if there is a reasonable probability that the result of the trial would have been different absent the deficient act or omission.”  In Kulbicki, the Court oddly misstated the standard, as “meaning his errors are ‘so serious’ that he no longer functions as ‘counsel,’ and prejudicial, meaning his errors deprive the defendant of a fair trial.”  That description of the Strickland test was at the very least, a casual and imprecise one.

Now, in Hinton, there was both firearms and toolmark analysis, and counsel mistakenly thought that the court would not pay for an expert, so did not ask for one.  The Court there emphasized: “The trial attorney’s failure to request additional funding in order to replace an expert he knew to be inadequate because he mistakenly believed that he had received all he could get under Alabama law constituted deficient performance.”

Did counsel in Kulbicki make reasonable investigations and inquiry?  We now know that the FBI’s bullet lead analysis was unscientific and flawed – and that it never should have been allowed in court at all.  That said, in Hinton, the trial lawyer knew he had a sub-par forensic expert on a key issue and mistakenly thought there was no way to do better for his client.  In Kulbicki, perhaps the lawyer had no idea that there was any way to challenge the FBI’s scientific-sounding bullet lead comparison evidence.  But that begs the question whether a lawyer should be expected to look into whether the forensics are actually supported by real research.

In Hinton, the Court emphasized: “we have recognized the threat to fair criminal trials posed by the potential for incompetent or fraudulent prosecution forensics experts.”  Nowhere did the Court even pay lip service to that threat in Kulbicki, despite the fact that the case did indeed involve a patently unscientific technique, since disavowed and discontinued by the FBI.  Instead, the Court emphasized that a 1991 co-authored by the FBI expert testifying in the case would have been difficult for any defense lawyer to even find, and that it did not clearly signal awareness at the FBI that the technique was flawed.  Is the unfortunate moral of the story that if a lab hides the flaws in the science for years, that is a good way to prevent post-conviction relief, whose success so often hinges on ineffective assistance of counsel claims?

Perhaps ineffective assistance of counsel claims are not the best way to remedy unscientific evidence in the courts.  It is an unfortunately failing of our habeas law, that a convict’s best hope may be to try to blame the defense lawyer for the failings of prosecution experts.  Should there be a Brady v. Maryland theory that the unsound underpinnings of this evidence were concealed from the defense?  Or a theory that the evidence was fabricated in violation of Napue?  Should Maryland courts be empowered to grant relief calling the changed understanding of the science, or lack thereof, constitutes new evidence of innocence?  Perhaps more states need to follow the lead of Texas and adopt statutes that permit post-conviction relief for changed understanding of scientific evidence.  False facts and unsound science may be most conveniently hung on the ready post-conviction hook of a Strickland claim.  But when forensic errors come to light, accountability should be placed squarely on the prosecutors and the forensic analysts who were the purveyors of flawed science.

In Hinton, the Court recognized that “Prosecution experts, of course, can sometimes make mistakes.”  When they do, the prosecution and those experts should face the post-conviction consequences.

Published by BGarrett

Professor of Law, Duke University

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  1. I too was struck by Kulbicki’s description of the Strickland standard, but when I looked back at Strickland itself, that sentence seemed like a reasonably accurate paraphrase of this passage from Strickland:

    “A convicted defendant’s claim that counsel’s assistance was so defective as to require reversal of a conviction or death sentence has two components. First, the defendant must show that counsel’s performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.” 466 U.S. at 687.

    Do you think the opinion still would have been an odd misstatement if it had quoted the entire passage?


  2. Absolutely – thank you so much Will. A full quote – or just a slightly better paraphrasing – would have conveyed that the standard isnt just or even chiefly about total abandonment by counsel (a Holland v. Florida or Maples situation, where the lawyer is no longer functioning as an agent) but mainly about objectively unreasonable representation that prejudiced the outcome.


  3. Prof. Garret’s post gives one the misleading impression that ineffective assistance of counsel is the only vehicle for addressing concerns about forensic science raised years after a conviction is final. He seemingly would expand IAC to be a universal get-out-of-jail-free card for anyone who, with the benefit of hindsight, decides that there was some evidentiary flaw in his trial.

    Maryland criminal procedure provides multiple opportunities for post-conviction attacks on evidence, including a uniform postconviction procedures statute, a rules-based motion for new trial based on newly discovered evidence, a DNA postconviction statute, and a “Petition for Writ of Actual Innocence.” Without opining as to whether any of those vehicles would apply in Mr. Kulbicki’s case, it is not necessary to force all postconviction claims into an ineffective assistance of counsel claim.

    Indeed, not even Kulbicki’s attorneys attempted to do so. Their attacks on Kulbicki’s conviction did not include, in the Court of Appeals, a claim that it violated the Sixth Amendment to not uncover a single obscure publication which concluded that CBLA was valid, and use it to undermine the expert’s claim that CBLA was valid. The opinion of the Court of Appeals was fabricated out of whole cloth by a bare majority of the court (including two specially-sitting retired judges), on an issue not briefed or argued.

    A special statute creating a judicial process to review convictions wherein CBLA testimony was used makes sense. Inventing a standard of review for effective representation that requires the ability to predict the future does not.


    1. I completely agree – that IAC claims are not the best vehicle for reviewing flawed scientific testimony. I think it is unfortunate that IAC claims are the primary vehicle for post-conviction review under the U.S. Constitution. A far better vehicle is something along the lines of the Texas “changed science” forensic post-conviction statute – which I pointed too in my post – but about which much more can be said. I would be very interested in hearing more about the litigation in Kulbicki in the Maryland courts…


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