In the first case to include a longtime ballistics expert's falsified credentials and perjurious testimony as part of a challenge to a defendant's conviction, a defense gun expert testified yesterday that Joseph Kopera incorrectly concluded that a former police sergeant's off-duty revolver could have been used to fire the bullet that killed the officer's mistress.
The gun expert said he used Kopera's measurements from 1993 of the bullet fragments - as well as those of a Baltimore County police firearms examiner who recently re-analyzed the evidence for prosecutors - in determining that former Baltimore Police Sgt. James A. Kulbicki's .38 caliber Smith & Wesson revolver could not have been used in the killing.
"The only conclusion I have is that that [bullet] fragment was not fired by that gun," John Nixon, the defense team's firearms and ballistics expert, testified yesterday in Baltimore County Circuit Court.
The testimony came on the first day of a hearing expected to continue today and into next week for a judge to consider Kulbicki's request for a new trial.
Attorneys representing the former police officer argued in court that their client's conviction and life sentence should be overturned, in part, because of the "inaccurate and exaggerated" ballistics analysis of Kopera, who killed himself last month after being confronted by Kulbicki's attorneys with evidence that he had falsified his credentials.
Prosecutors have argued in their written court filings that Kopera's testimony was neither "false" nor "contorted science to fit the facts of the case." Rather, prosecutors wrote, Kopera's analysis was limited by the "mutilated condition" of the bullet fragments found in the defendant's truck and removed from the victim's head during an autopsy.
Kulbicki, 50, a married father and 10-year police veteran, was twice convicted and sentenced to life in prison without parole for the murder of a woman with whom he had an adulterous three-year relationship.
Gina Nueslein, 22, was found dead Jan. 10, 1993, in Gunpowder Falls State Park - three days before a scheduled paternity hearing through which she was seeking child support from Kulbicki for their toddler son.
Prosecutors built their case against Kulbicki on evidence found in his pickup truck, blood and what might have been skull fragments. In addition, a woman told detectives that she spotted the police sergeant driving through the park the evening before Nueslein's body was found there.
For Nueslein's parents and other relatives who attended yesterday's hearing, the testimony was an exercise in frustration.
"It's tough. There's no reason for this," Joe Nueslein said of sitting through another round of hearings for the man convicted of killing his daughter. "We've had two trials. We got two convictions. And there was so much evidence. This gun hardly had anything to do with it."
But attorneys with the state public defender's Innocence Project - a small team of lawyers who represent defendants they believe have been wrongfully convicted - are attacking the major elements in the state's case in their quest to win Kulbicki a third trial.
It was those lawyers who confronted Kopera earlier this year with evidence that he had lied - both on his resume and during innumerable appearances on courtroom witness stands across Maryland - about his credentials. In the wake of the revelations, the 61-year-old state police firearms examiner unexpectedly retired and then killed himself the next day, March 1.
Since then, the discovery of his perjurious testimony - regarding college degrees and certification in his field of expertise from a national organization that he claimed to have but never earned - has sparked a statewide review of some of the thousands of cases that Kopera worked on during a career that spanned nearly four decades.
The Kulbicki case is the first to use Kopera's testimony to raise doubts about the validity of a conviction.
Defense attorney Garrick Greenblatt told Baltimore County Circuit Judge Kathleen G. Cox in his opening statement that Kopera's false testimony in the Kulbicki case goes far beyond his credentials. The gun expert also testified to conclusions that were inconsistent with his own reports and notes and are now contradicted by other gun experts, Greenblatt said.
"Not only will we present a witness who will dispute Kopera's findings, but so will the state," the defense attorney told the judge. Noting that prosecutors recently resubmitted the ballistics evidence to the county police crime lab, he said, "The state's new testing shows that Kopera's conclusions were inaccurate and exaggerated."
Kopera's testimony is one of four elements of prosecutors' case from 1995 that Kulbicki's legal team is attacking.
They also called witnesses yesterday who questioned the testimony of an FBI analyst who linked as "analytically indistinguishable" bullet fragments found in Kulbicki's truck and in Nueslein's body.
William Tobin, an independent forensic metallurgic consultant who spent 27 years with the FBI, told the judge that the comparative lead test used to link the two fragments has since been discredited and is no longer used.
In addition, he said, the results of the 1993 testing should have led the FBI analyst to find the two fragments had different levels of arsenic and therefore could not be said with certainty to have come from the same bullet, as the witness testified in 1995.
The lawyers are also challenging testimony of the woman who said she saw Kulbicki at the park as well as evidence concerning DNA and serology tests on blood and bone fragments.