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SCOTUS: “Right to counsel” guarantees reasonable competence not perfect advocacy

Maryland v. Kulbicki, USSC No. 14-848 (per curiam) (October 5, 2015) granting cert and reversing Kulbicki v. State, 99 A.3d 730, 440 Md. 33 (2014); SCOTUSblog page

This is a summary reversal of a Maryland Court of Appeal’s decision, which held that Kulbicki’s defense lawyers were constitutionally ineffective back in 1995.  A jury convicted Kulbicki of 1st-degree murder for shooting his mistress. The State’s case rested on a Comparative Bullet Lead Analysis, which the scientific community generally accepted then, but doesn’t now.

The Maryland Court of Appeals held that counsel should have unearthed a 1991 report that identified some methodological flaws in CBLA and used the report to cross-examine the state’s expert at trial. SCOTUS reversed:

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 counsel’s challenged conduct . . . viewed as of the time of counsel’s conduct.” Strickland, supra, at 690. Slip op. at 3.

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). Slip op. at 4-5.

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