Tag: Foggy Mirror Test

The Supreme Court reverses the Maryland Court of Appeals finding that James Kulbicki did not have effective assistance of counsel. Amongst legal scholars, the Strickland Standard is well known. Indeed, the Supreme Court “held that this right requires effective counsel in both state and federal prosecutions, even if the defendant is unable to afford counsel.” Pp. 1 (citing Gideon v. Wainwright, 372 U. S. 335, 344 (1963)). “Counsel is unconstitutionally ineffective if his performance is both deficient, 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.” Pp. 1 (quoting Strickland v. Washington, 466 U. S. 668, 687 (1984)). Some legal scholars have gone so far as to compare this standard to the foggy mirror test: hold a mirror underneath the criminal defense lawyer’s face to see if the mirror fogs – as long as it fogs, there is effective assistance of counsel.

The Supreme Court said that the Maryland Court of Appeals applied this standard “in name only” (pp. 1), finding an expert report favorable to the defendant unlikely to be found at the time and/or impact the finding of guilty. Here the expert testimony elicited at trial compared the lead in the bullet within the victim’s skull and the lead of the remaining bullets the defendant possessed and found it likely to be the same lead. It was Comparative Bullet Lead Analysis (“CBLA”) which, although accepted at the time, was contradicted by an report existing at the time written by Agent Peele. Like any good science, Comparative Bullet Lead Analysis has been criticized and fallen out of favor by current scientific standards: Remember, the expert at Kulbicki’s trial indicated that it was likely that the very same lead found in the victim’s brain that was also found in a box of bullets that Kulbicki purchased. Noting the errors in this science, “[o]ne of the many findings of the report was that the composition of lead in some bullets was the same as that of lead in other bullets packaged many months later in a separate box.” Pp. 2. The Maryland Court of Appeals, indicating that the testimony is at significant odds with what is taken as knowledge today, looked at this faulty assumption as a good reason to overturn this conviction.

The Supreme Court reverses, finding that “The Court of Appeals offered no support for its conclusion that Kulbicki’s defense attorneys were constitutionally required to predict the demise of CBLA.” “At the time of Kulbicki’s trial in 1995, the validity of CBLA was widely accepted, and courts regularly admitted CBLA evidence until 2003.” Pp. 3. The Supreme Court critiques the Maryland Court of Appeals for second-guessing the trial strategy in light of what was a well-accepted science in the 1990s but not, as the Supreme Court indicated, an accepted science in 2003. “Counsel did not perform deficiently by dedicating their time and focus to elements of the defense that did not involve poking methodological holes in a then-uncontroversial mode of ballistics analysis.” Pp. 4. “Given the uncontroversial nature of CBLA at the time of Kulbicki’s trial, the effect of the judgment below is to demand that lawyers go ‘looking for a needle in a haystack,’ even when they have ‘reason to doubt there is any needle there.’” Pp. 4 (quoting Rompilla v. Beard, 545 U. S. 374, 389 (2005)).

The Supreme Court again asserts that the ineffective assistance of counsel standard is not perfect advocacy but reasonable competence. “Kulbicki’s trial counsel did not provide deficient performance when they failed to uncover the 1991 report and to use the report’s so-called methodological flaw against Peele on cross-examination.” Pp. 5. Reversed.

The case is Maryland v. James Kulbicki, 577 U.S. ___ (Oct. 5, 2015).