[Ppnews] 40 years of false FBI forensics exposed

[Political Prisoner News]

A Murder Conviction Torn Apart By A Bullet
WASHINGTON, Nov. 19, 2007
http://www.cbsnews.com/stories/2007/11/19/politics/washingtonpost/main3520388.shtml

60 Minutes video at this link
http://www.cbsnews.com/stories/2007/11/16/60minutes/main3512453.shtml


----------
(Washingtonpost.com) This article was written by John Solomon .

----------

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.

Prosecutors had linked the weapon to Kulbicki through forensic 
science. Maryland's top firearms expert said that the gun had been 
cleaned and that its bullets were consistent in size with the one 
that killed the victim. The state expert could not match the markings 
on the bullets to Kulbicki's gun. But an FBI expert took the stand to 
say that a science that matches bullets by their lead content had 
linked the fatal bullet to Kulbicki.

The jurors were convinced, and in 1995 Kulbicki was convicted of 
first-degree murder in the death of his 22-year-old girlfriend. He 
was sentenced to life in prison without the possibility of parole.

For a dozen years, Kulbicki sat in state prison, saddled with the 
image of the calculating killer portrayed in the 1996 made-for-TV 
movie "Double Jeopardy."

Then the scientific evidence unraveled.

Earlier this year, the state expert committed suicide, leaving a 
trail of false credentials, inaccurate testimony and lab notes that 
conflicted with what he had told jurors. Two years before, the FBI 
crime lab had discarded the bullet-matching science that it had used 
to link Kulbicki to the crime.

Now a judge in Baltimore County is weighing whether to overturn 
Kulbicki's conviction in a legal challenge that could have ripple 
effects across Maryland. The case symbolizes growing national 
concerns about just how far forensic experts are willing to go to 
help prosecutors secure a conviction.

"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 resume 
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.






Freedom Archives
522 Valencia Street
San Francisco, CA 94110

415 863-9977

www.Freedomarchives.org  
-------------- next part --------------
An HTML attachment was scrubbed...
URL: <http://freedomarchives.org/pipermail/ppnews_freedomarchives.org/attachments/20071119/40e3011e/attachment.htm>