Former officer loses appeal

The Baltimore Sun

Drawing a distinction between a police firearms expert's perjured testimony about his education and his analysis of bullet fragments that linked a former Baltimore police sergeant to a 1993 murder, a Baltimore County judge ruled yesterday that James A. Kulbicki should not receive a new trial.

In ruling on the case - the first to include longtime ballistics expert Joseph Kopera's falsified credentials as part of a challenge to a defendant's conviction - Circuit Judge Kathleen G. Cox found that Kopera had repeatedly committed perjury in courtrooms across Maryland in testifying to college degrees that he never earned.

But, the judge wrote, his academic credentials "were essentially meaningless" to his job and his false testimony about them was immaterial to his analysis of bullet fragments found in Kulbicki's truck and removed from the victim's head during an autopsy.

Lawyers on opposite sides of the case offered different forecasts for what the ruling might mean for the statewide review of cases in which Kopera testified during a career as a police firearms examiner that spanned nearly four decades, first in Baltimore and then with the Maryland State Police.

Baltimore County State's Attorney Scott D. Shellenberger said the decision, although not legally binding in other cases, could influence other judges and doom similar challenges.

Defense attorney Suzanne Drouet countered that because Kopera lied about his background in so many jurisdictions, the issue is ripe for review by an appeals court.

"We will continue to vigorously fight an unjust and untrustworthy conviction that Judge Cox has acknowledged is based on unreliable evidence," she said. "Judge Cox agreed that Mr. Kopera committed perjury. We simply disagree that perjury of any kind by a state agent can just be excused."

Kulbicki, 51, a married father and 10-year police veteran, was twice convicted and sentenced to life in prison without parole in the fatal shooting of a woman with whom he had a three-year affair. He was granted a second trial in 1995 after an appeals court ruled that the judge who presided over Kulbicki's 1993 trial should have allowed him to rebut the testimony of two state witnesses.

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.

Questions about Kopera's credentials were raised by Kulbicki's attorneys, a team of public defenders assigned to the Innocence Project, a unit of lawyers who represent defendants who they believe have been wrongfully convicted.

The veteran police firearms examiner killed himself in March after being confronted by Kulbicki's attorneys. Those lawyers asked a judge in April to grant Kulbicki a new trial based in part on Kopera's falsified credentials.

During a five-day hearing, defense expert witnesses told the judge that Kopera's testimony in the case was inconsistent with his reports and notes, and that his conclusions were incorrect.

A Baltimore County police firearms examiner who analyzed the bullet fragments before the April hearing contradicted several of Kopera's findings, although he reached a similar overall conclusion that the bullet piece recovered from the victim's head was so mutilated that he could not make any meaningful determinations about whether it had come from Kulbicki's off-duty revolver.

The differing opinions were not enough to discredit the substance of Kopera's analysis for the judge. "The mere fact that the petitioner disputes the accuracy of a statement does not make it 'perjured,'" Cox wrote in her 44-page opinion.

Kulbicki's lawyers also attacked the testimony of a woman who said she saw Kulbicki at the park where his mistress' body was found and evidence concerning DNA and serology tests on blood and bone fragments.

They also challenged the testimony of an FBI analyst who linked as "analytically indistinguishable" bullet fragments found in Kul- bicki's truck and in Nueslein's body. The analyst used comparative bullet lead analysis, a technique that purported to link a fired bullet with a particular box of bullets. The FBI stopped using the four-decades-old test in 2005.

It was this evidence that the judge hearing Kulbicki's case found most compelling. "The recent developments that undermine the reliability of CBLA evidence are problematic," Cox wrote.

But she found that the type of appeal filed by Kulbicki's attorneys, a post-conviction petition, was not the proper mechanism for raising such a challenge and that the deadline for the correct type of filing, a petition for a new trial based on newly discovered evidence, has passed.

Under Maryland law, defendants generally have a year to file that kind of an appeal unless the case involves DNA evidence that would establish the person's innocence. Studies calling into question the science of comparative bullet testing were not published until nearly 10 years after Kulbicki's second conviction.

Drouet, one of Kulbicki's attorneys, said she found that element of the ruling troublesome.

"She's saying if he had filed, he would have been entitled to relief. But he didn't file, so too bad," she said. "Well, he didn't file because the stuff didn't exist. Through no fault of his own, the FBI didn't get around to disputing the science until after Mr. Kul- bicki's trial was done."

Shellenberger, the top prosecutor in Baltimore County, said he remains confident that strong evidence - with or without the comparative bullet test - ties Kulbicki to the killing.

"Two sets of jurors and two judges have convicted him, sentenced him and believe in his guilt," he said. "No matter how this case continues to be challenged, we're going to continue to prosecute it vigorously because we believe 24 jurors are right."

jennifer.mcmenamin@ baltsun.com

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