Writ of Certiorari – Ineffective Assistance of Counsel

Listen to this article

US Supreme Court

Writ of Certiorari – Ineffective Assistance of Counsel

No. 14-848 Maryland v. Kulbicki

Failure of counsel to uncover report that was contrary to scientific method used in trial was not deficient performance.

“That is especially the case here, since there 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. Id., at 51, and n. 12, 99 A. 3d, at 741, and n. 12; see also Brief in Opposition 14. The Web page indicates that a compilation of forensic studies that included the report was “distributed to various public libraries in 1994.” 440 Md., at 51, n. 12, 99 A. 3d, at 741, n. 12. 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”? And then, would effective counsel really have brought to the attention of the jury a report whose conclusion was that CBLA was a valid investigative technique in cases just like Kulbicki’s? Neither the Court of Appeals nor Kulbicki has answers. 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.” Rompilla v. Beard, 545 U. S. 374, 389 (2005). The Court of Appeals demanded something close to “perfect advocacy”—far more than the “reasonable competence” the right to counsel guarantees. Yarborough v. Gentry, 540 U. S. 1, 8 (2003) (per curiam).”

Petition Granted. Order of Court of Appeals Reversed

Per Curiam.

Full Text

Attorney Derek A. Hawkins is the managing partner at Hawkins Law Offices LLC, where he heads up the firm’s startup law practice. He specializes in business formation, corporate governance, intellectual property protection, private equity and venture capital funding and mergers & acquisitions. Check out the website at www.hawkins-lawoffices.com or contact them at 262-737-8825.