1
`
`
`
`
`
` Cite as: 577 U. S. ____ (2015)
`
`
`Per Curiam
`SUPREME COURT OF THE UNITED STATES
`
` MARYLAND, PETITIONER v. JAMES KULBICKI
`ON PETITION FOR WRIT OF CERTIORARI TO THE COURT OF
`
`
`APPEALS OF MARYLAND
`
`No. 14–848. Decided October 5, 2015
`
` PER CURIAM.
`
`
`A criminal defendant “shall enjoy the right . . . to have
`the Assistance of Counsel for his defence.” U. S. Const.,
`Amdt. 6. We have held that this right requires effective
`counsel in both state and federal prosecutions, even if the
`defendant is unable to afford counsel. Gideon v. Wain-
`wright, 372 U. S. 335, 344 (1963). Counsel is unconstitu-
`tionally 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. Strickland v. Wash-
`ington, 466 U. S. 668, 687 (1984). Applying this standard
`in name only, the Court of Appeals of Maryland held that
`James Kulbicki’s defense attorneys were unconstitution-
`ally ineffective. We summarily reverse.
`
`In 1993, Kulbicki shot his 22-year-old mistress in the
`
`head at pointblank range. The two had been ensnarled in
`a paternity suit, and the killing occurred the weekend
`before a scheduled hearing about unpaid child support. At
`Kulbicki’s trial, commencing in 1995, Agent Ernest Peele
`of the FBI testified as the State’s expert on Comparative
`Bullet Lead Analysis, or CBLA. In testimony of the sort
`CBLA experts had provided for decades, Peele testified
`that the composition of elements in the molten lead of a
`bullet fragment found in Kulbicki’s truck matched the
`composition of lead in a bullet fragment removed from the
`victim’s brain; a similarity of the sort one would “‘expect’”
`if “‘examining two pieces of the same bullet.’” 440 Md. 33,
`41, 99 A. 3d 730, 735 (2014). He further testified that a
`
`

`
`
`
`
`
`2
`
`
`MARYLAND v. KULBICKI
`
` Per Curiam
`
`bullet taken from Kulbicki’s gun was not an “exac[t]”
`match to the bullet fragments, but was similar enough
`that the two bullets likely came from the same package.
`Id., at 42–44, 99 A. 3d, at 735–736. After considering this
`ballistics evidence, additional physical evidence from Kul-
`
`
`bicki’s truck, and witness testimony, the jury convicted Kul-
`
`bicki of first-degree murder.
`
`Kulbicki then filed a petition for postconviction relief,
`which lingered in state court until 2006 when Kulbicki
`added a claim that his defense attorneys were ineffective
`for failing to question the legitimacy of CBLA. By then, 11
`years after his conviction, CBLA had fallen out of favor.
`Indeed, Kulbicki supplemented his petition once more in
`2006 after the Court of Appeals of Maryland held for the
`first time that CBLA evidence was not generally accepted
`by the scientific community and was therefore inadmissi-
`ble. See Clemons v. State, 392 Md. 339, 371, 896 A. 2d
`1059, 1078 (2006).
`
`Kulbicki lost in the lower state courts and appealed to
`the Court of Appeals of Maryland. At that point, Kulbicki
`
`abandoned his claim of ineffective assistance with respect
`
`to the CBLA evidence, but the high court vacated
`
`Kulbicki’s conviction on that ground alone. Kulbicki’s coun-
`sel, according to the court, should have found a report
`coauthored by Agent Peele in 1991 that “presaged the
`
`flaws in CBLA evidence.” 440 Md., at 40, 99 A. 3d, at 734.
`One of the many findings of the report was that the com-
`position of lead in some bullets was the same as that of
`lead in other bullets packaged many months later in a
`separate box. Rather than conduct “further research to
`explain the existence of overlapping compositions,” the
`authors “speculated” that coincidence (or, in one case, the
`likelihood that separately packaged bullets originated
`from the same source of lead) caused the overlap. Id., at
`49, 99 A. 3d, at 739. The Court of Appeals opined that this
`
`lone finding should have caused the report’s authors to
`
`
`
`
`
`
`
`
`
`
`
`

`
`
`
`3
`
`
`
` Cite as: 577 U. S. ____ (2015)
`
`
`Per Curiam
`doubt “that bullets produced from different sources of lead
`would have a unique chemical composition,” the faulty
`assumption that ultimately led the court to reject CBLA
`evidence 15 years later. Ibid.; see Clemons, supra, 369–
`
`370, 896 A. 2d, at 1077. The authors’ “failure to fully
`explore the variance,” the Court of Appeals concluded, was
`“at odds with the scientific method.” 440 Md., at 50, 99
`
`A. 3d, at 740.
`In the Court of Appeals’ view, any good attorney should
`
`have spotted this methodological flaw. The court held that
`counsel’s failure to unearth the report, to identify one of
`its findings as “at odds with the scientific method,” and to
`use this methodological flaw to cast doubt on CBLA during
`counsel’s cross-examination of Peele, “fell short of prevail-
`ing professional norms.” Id., at 50–53, 99 A. 3d, at 740–
`
`742. Concluding that counsel’s supposed deficiency was
`prejudicial, the court set aside the conviction and ordered
`
`a new trial. Id., at 56, 99 A. 3d, at 743–744.
`
`
`We reverse. The Court of Appeals offered no support for
`its conclusion that Kulbicki’s defense attorneys were
`
`constitutionally required to predict the demise of CBLA.
`Instead, the court indulged in the “natural tendency to
`speculate as to whether a different trial strategy might
`have been more successful.” Lockhart v. Fretwell, 506
`U. S. 364, 372 (1993). To combat this tendency, we have
`“adopted the rule of contemporary assessment of counsel’s
`
`conduct.” Ibid. Had the Court of Appeals heeded this
`rule, it would have “judge[d] the reasonableness of coun-
`sel’s challenged conduct . . . viewed as of the time of coun-
`sel’s conduct.” Strickland, supra, at 690.
`
`At the time of Kulbicki’s trial in 1995, the validity of
`CBLA was widely accepted, and courts regularly admitted
`CBLA evidence until 2003. See United States v. Higgs,
`663 F. 3d 726, 738 (CA4 2011). As the Court of Appeals
`acknowledged, even the 1991 report itself did not question
`the validity of CBLA, concluding that it was a valid and
`
`
`
`
`
`
`
`
`
`

`
`4
`
`
`MARYLAND v. KULBICKI
`
` Per Curiam
`
`useful forensic tool to match suspect to victim. 440 Md., at
`51, n. 11, 99 A. 3d, at 740, n. 11. 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.
`
`
`That is especially the case here, since there is no reason
`to believe that a diligent search would even have discov-
`ered the supposedly crucial report. The Court of Appeals
`offered a single citation in support of its sweeping state-
`
`ment 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 compila-
`tion of forensic studies that included the report was “dis-
`
`tributed 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 com-
`pilation? And had they found it, would counsel really have
`combed through the entire compilation, and have identi-
`fied 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 effec-
`tive 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 hay-
`stack,” 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
`
`
`
`
`
`
`
`

`
`
`
` Cite as: 577 U. S. ____ (2015)
`
`
`Per Curiam
` competence” the right to counsel guarantees. Yarborough
`
`v. Gentry, 540 U. S. 1, 8 (2003) (per curiam).
`Kulbicki’s trial counsel did not provide deficient perfor-
`
`mance when they failed to uncover the 1991 report and
`to use the report’s so-called methodological flaw against
`Peele on cross-examination. (We need not, and so do not,
`decide whether the supposed error prejudiced Kulbicki.)
`
`The petition for writ of certiorari is granted, and the
`judgment of the Court of Appeals for Maryland is
`reversed.
`
`
`
`It is so ordered.
`
`
`
`
`
`5