Deny retrial, judge urged

Perjury-tainted murder conviction is challenged

April 26, 2007|By Jennifer McMenamin | Jennifer McMenamin,sun reporter

Wrapping up five days of hearings on a former police officer's challenge to his murder conviction based, in part, on the perjured testimony of a police ballistics expert, a prosecutor told a judge yesterday that James A. Kulbicki's request for a new trial should not be granted because his lawyers' arguments did not focus on the narrow legal issues that determine whether a new trial is warranted.

S. Ann Brobst, an assistant state's attorney for Baltimore County, said that a sentence can be overturned in response to a post-conviction petition - the type of legal challenge filed by Kulbicki's attorneys - only because of prosecutorial misconduct or because the lawyers who represented a defendant at trial are found to have provided ineffective assistance.

"It sounded more like a closing argument to a jury or an appellate argument on appeal," the prosecutor said of Kulbicki's attorney's remarks yesterday to the judge. "A post-conviction proceeding is very different. ... I think we all have to take a step back and say, given all that has been presented, what difference does this make when we're in this stage of the criminal proceedings?"

Kulbicki, 50, a former Baltimore police sergeant, was twice convicted and sentenced to life in prison without parole in the fatal shooting of Gina Nueslein, a 22-year-old woman with whom he had a three-year adulterous affair. He was granted a second trial in 1995 after an appeals court ruled that the judge who presided over Kulbicki's 1993 trial should have allowed the defendant to rebut the testimony of two state witnesses.

Attorneys representing him now have asked Baltimore County Circuit Judge Kathleen G. Cox to overturn the life sentence and grant him a third trial, in part, because of the testimony of Joseph Kopera. The veteran state police firearms examiner killed himself last month after being confronted by Kulbicki's lawyers with evidence that Kopera had falsified his credentials and lied on witness stands across Maryland about college degrees that he never earned.

Suzanne Drouet, a public defender with the state's Innocence Project, said in her closing argument that prosecutors built their case against Kulbicki on ballistics analysis and other scientific evidence that was "misleading" and "erroneous," denying Kulbicki the right to a fair trial.

Drouet added that the lawyers who represented Kulbicki at his 1995 trial "abandoned the entire field of science to the state" by failing to properly question expert witnesses on cross examination about bullet comparisons and DNA evidence extracted from bone fragments and blood stains. They further failed, she said, to question Kopera's testimony about the caliber of a bullet fragment found in Nueslein's head when he had made no mention in his report of making such a determination.

"If you can't cross-examine a witness on testimony that says X with a report that doesn't mention X, you have no business calling yourself a trial lawyer," Drouet said.

Kulbicki's current legal team has challenged the ballistics evidence and DNA analysis in the case and the testimony of a witness who told police she spotted Kulbicki at Gunpowder Falls State Park the evening before Nueslein's body was found there.

Cox, the judge, asked the lawyers on both sides to submit written briefs. She set a final filing deadline in August.

Relatives of Kulbicki and Nueslein, who sat through all five days of testimony, said they anxiously await the decision.

"I hope that all this brought out in court is enough for the judge to see how unfair this has been for the past 14 years," said Kulbicki's wife, Connie. "I know the Nuesleins are victims. But we are also victims. ..."

On the other side of the courtroom, Joe Nueslein said he hopes that justice will prevail for his daughter.


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