MARYLAND, PETITIONER v. JAMES KULBICKI
Supreme Court of the United States, Per Curiam, Filed Oct. 5, 2015,
Ineffective Assistance of Counsel – Failure to “predict the demise” of a “widely accepted” scientific method was not ineffective assistance of counsel

The supreme court wasn’t quite merciless in attacking the Court of Appeals’ (Battaglia writing) opinion, but it was close.

Applying [the Strickland] standard in name only, the Court of Appeals of Maryland held that James Kulbicki’s defense attorneys were unconstitutionally ineffective. We summarily 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.”

To combat this tendency, we have “adopted the rule of contemporary assessment of counsel’s conduct.” 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.”

…

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.

The Web page indicates that a compilation of forensic studies that included the report was “distributed to various public libraries in 1994.” 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.”

The Court of Appeals demanded something close to “perfect advocacy”—far more than the “reasonable competence” the right to counsel guarantees.