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Convicted cop may have been framed with false science

Former Baltimore police sergeant James A. Kulbicki has served a dozen years in a Maryland prison for the murder of his girlfriend.

Former Baltimore police sergeant James A. Kulbicki has served a dozen years in a Maryland prison for the murder of his girlfriend. He was convicted based on the testimony of an FBI forensice expert, who said, that even though police couldn't match the bullet to the gun, a science that does the matching by lead content made Kulbicki the shooter. Neither the science nor the expert has stood the test of time, The Washington Post reports. Now Kulbicki may be released as an innocent man and hundreds more convictions may be shown to be faulty.

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.
Firearms expert Joseph Kopera lied about having degrees from the Rochester Institute of Technology and the University of Maryland when he testified in the 1995 case. When he was confronted about the lies he resigned from the FBI and committed suicide the next day. Suzanne K. Drouet, a former Justice Department lawyer who works for the state public defender's Innocence Project dug up the information on the falsified degrees. She found Kopera's lab notes, which differ substantially from the final report he turned over to the defense.
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.

And Kopera testified the gun had been cleaned. At the trial a prosecutor told the jury, "Anyone would know that if you're going to keep the gun, you should clean the gun. And he cleaned the gun."

"Residue in barrel: Yes. Bore condition: Dirty," his notes stated, suggesting that the gun had not been cleaned.

"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.

Another basis for the conviction was a "science" used by the FBI to match bullets to guns by lead signatures. Two years ago the FBI dropped the technique, but it had been widely used for 30 years.

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.

One murder conviction based on bullet-lead "science" has already been overturned, by the Maryland Court of Appeals, and Cliff Spiegelman, who served on a National Academy of Sciences panel that criticized the FBI over the technique and was consulted by the defense. He said prosecutors overstated their scientific evidence in many cases.
"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.