Thursday, October 15, 2015

Strickland in the age of card catalogues

The High Court has already issued its first opinion this term, in Maryland v. Kulbicki, a per curiam summary reversal of state habeas relief for a Maryland police officer convicted of first-degree murder. The Court of Appeals of Maryland had held that Mr. Kulbicki’s trial lawyers were ineffective 20 years ago when they failed to challenge the state’s Comparative Bullet Lead Analysis evidence. Specifically, the lawyers failed to learn that the State’s CBLA expert had co-authored a report that “presaged the flaws in CBLA”---a forensic technique that has since been roundly discredited and abandoned. The Supreme Court reversed the Maryland court's Strickland finding, holding that Mr. Kulbicki’s lawyers were not constitutionally required to predict the demise of CBLA, or, in those pre-Internet days, to stumble across the expert’s report at the local public library:

[T]here is no reason to believe that a diligent search would even have discovered the supposedly crucial report. The Court of Appeals offered a single citation in support of its sweeping statement that the report “was available” to Kulbicki’s counsel in 1995—a Government Printing Office Web page accessed by the Court of Appeals, apparently conducting its own Internet research nearly two decades after the trial . . . . The Web page indicates that a compilation of forensic studies that included the report was “distributed to various public libraries in 1994.” . . . . But which ones? And in an era of card catalogues, not a worldwide web, what efforts would counsel have had to expend to find the compilation? And had they found it, would counsel really have combed through the entire compilation, and have identified the one (of many) findings in one of the reports, the disregard of which counsel would have recognized to be “at odds with the scientific method”?

Two points of note in Kulbicki:

First, the Court appears to chastise the Maryland appellate court for “conducting its own Internet research.” This raises an interesting question about when it is appropriate for appellate courts to base decisions on facts the courts themselves unearth via Internet research (or even brick-and-mortar research, but who are we kidding?), rather than limiting themselves to the facts developed below. This question was recently addressed in a Seventh Circuit civil-rights case, in an opinion well worth reading (spoiler alert: Judge Posner supports such judicial research, especially in pro se prisoner cases where “[i]t is heartless to make a fetish of adversary procedure if by doing so feeble evidence is credited because the opponent has no practical access to offsetting evidence”).

Second, while Mr. Kulbicki’s lawyers may be off the hook for failing to exhume an obscure expert report in 1995---the “era of card catalogues”---where does that leave defense lawyers practicing in the age of the worldwide web? By contrasting these two very different worlds, Kulbicki points to the answer: The easier it is to conduct computer research and investigation, the higher the judicial expectations are (and should be) that we will indeed find those exculpatory needles in the online haystack. Happy Googling!

-- Paige Nichols

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