Comparison Bullet Lead Analysis (CBLA):
Promoting then Protecting a Phony Science
CBLA, is the FBI’s crime lab process of firearms identification based on the theory that each batch of manufactured bullet lead had a unique chemical and metallurgical composition. Defendants convicted on this form of identification were in possession of ammunition made of lead supposedly made from the same batch of lead as the crime scene slugs. CBLA was helpful in cases when the crime scene bullet was mutilated or fragmented and therefore unfit for comparison under a microscope with a bullet test-fired from the suspected murder gun. Since the 1960’s FBI CBLA experts have testified in an estimated 2,500 criminal trials leading to the convictions of hundreds of defendants. In late summer 2005, the FBI lab, after independent experts like former FBI metallurgist William Tobin determined in 1998 that bullet batches are not unique, discontinued this type of analysis. A year before the National Academy of Sciences had confirmed William Tobin’s findings. (The bureau had been aware of concerns about the reliability of CBLA since 1991.)
Although CBLA had been discredited as reliable forensic science, and hundreds of people had been sent to prison of the basis of FBI CBLA testimony, the bureau, in an open letter, stood behind the science: “We still firmly support the scientific foundation of bullet lead analysis.” The FBI and the Department of Justice refused to release a list identifying the 2,500 CBLA cases. The FBI had this information since no other crime lab did this kind of work.
In 2007, a six month investigation by “60 Minutes” and The Washington Post identified 250 CBLA cases in which defendants were sent to prison on the strength of FBI CBLA testimony. The study revealed that the FBI has never notified the attorneys or the courts in these cases that the forensic testimony behind these convictions has been found to be bogus. “60 Minutes” aired the segment on November 18, 2007.
After having failed to release this exonerating information in 2005, Dwight E. Adams, the retired director of the FBI Lab, in an on-air “60 Minutes” interview, was now behind full disclosure: “I don’t believe there’s anything that we should be hiding.” Barry Scheck, a director of The Innocence Project, also appeared on the show. Scheck’s organization is helping identify defendants convicted by this evidence. “I think it’s a failure on the part of lawyers at the Department of Justice to own up to a very, very serious error,” he said. (For the full story behind the CBLA debacle, see Chapter 15, “Bullet Identification, FBI Style: Overselling the Science,” in Forensics Under Fire.)
On November 22, 2007 Senator Patrick Leahy, chairman of the Senate Judiciary Committee asked Department of Justice officials to release the list of the 2,500 cases involving FBI CBLA testimony. The senator from Vermont notified Attorney General Michael Mukasey that he may be questioned by congress about comparative bullet lead analysis. Leahy said the CBLA scandal reflects “the latest example of the [justice] department’s inadequate efforts to ensure that sound forensic testing is utilized to the maximum extent to find the guilty rather than merely obtaining a conviction.”
The James Kulbicki Case
Former Baltimore Police Sergeant James A. Kulbicki was taken into custody on January 13, 1993, three days after the body of his mistress, Gina Marie Nueslein was found near a garbage can in Gunpowder Falls State Park outside of Baltimore. The twenty-two-year-old woman had been shot in the head at close range. Kulbicki, due to his relationship with the victimhe and Nueslein had been involved in a contentious paternity suitbecame an immediate suspect. A witness, after seeing Kulbicki on television following his arrest, said she had seen him at the park about the time the body had been deposited there. Kulbicki insisted that he was innocent, a claim supported by his wife.
Prosecutors believed that Kulbicki shot the victim in his pickup truck with his off-duty .38 caliber Smith and Wesson revolver. Part of the bullet had been removed from the victim’s brain and another fragment had been found in the back seat of the truck. This evidence was examined by firearms identification expert Joseph Kopera who had been an employee of the Baltimore Police Department Crime Lab since 1970. Two years before the Nueslein murder, he had transferred to the Maryland State Police Crime Lab. In his report, Kopera identified the bullet fragment taken from the victim’s brain as part of a “medium” caliber slug. As for the piece of lead found in the truck, he could not determine anything regarding its original size.
Kulbicki was tried late in 1993. Joseph Kopera took the stand for the prosecution and testified that the fragment from the victim’s head and the one found in the truck had come from a “large” bullet, at least a .38 or .40 caliber. Kopera, when he examined the defendant’s revolver, noted in his report that he had found “Residue in barrel: Yes. Bore condition: Dirty.” This suggested that the weapon had not been recently cleaned. At the trial, however, Kopera testified that the defendant’s gun was in a “cleaned condition.” This fit in with the prosecution’s theory that the defendant, after the shooting, had cleaned his gun to remove blood and hide the fact it had been recently fired.
Kopera testified that he could not positively say that the striations (barrel scratches) on the bullet fragments had been made by the lands and grooves (rifling) inside the defendant’s barrel. But he could not rule out that possibility. However, in his lab notes, Kopera had noted that the striations on the fragments were too small to have been made by the barrel of the defendant’s gun.
The prosecution backed up Kopera’s testimony with a CBLA expert from the FBI Laboratory, Ernest Roger Peele, who testified that the crime scene bullet fragments came close to matching the lead composition of one of the bullets in the defendant’s revolver. The prosecutor, in addressing the jury on this point, said, “Out of the billions of bullets in the world, is this just a coincidence that the bullet ended up in the defendant’s off-duty weapon?” (Later analysis of the lead in the crime scene fragments and the defendant’s bullet determined they were not a lead composition match.)
The jury found James Kulbicki guilty of first-degree murder. The judge sentenced him to life in prison without possibility of parole. A year later, an appellate court set aside the conviction on grounds unrelated to the firearms identification aspect of the case. In 1995 Kulbicki was retried on the same evidence plus testimony that three bone fragments found in the defendant’s truck matched the victim’s DNA. The second jury found Kulbicki guilty. Again he was sentenced to life.
Since the 1995 conviction, attorneys for Kulbicki have challenged the DNA evidence, claiming that, after sitting in a vacuum cleaner bag for two years amid other trace evidence, it was contaminated. Notes from the private crime lab that did the DNA work in 1995 revealed that the bone fragments were “believed to be contaminated.” In 2005, when CBLA was determined to be unscientific, the movement to get Kulbicki a new trial gained some momentum.
Joseph Kopera, in 2000, was made supervisor of the firearms and tool mark unit of the Maryland State Police Crime Laboratory. Two days after Kopera retired on February 28, 2007, the sixty-one-year-old firearms identification examiner committed suicide. He did so amid allegations that during his career he had lied, committed perjury, about his educational background. His testimony in the Kulbicki trials was also be questioned. At Kulbicki’s 1995 trial, Kopera had testified that he had an engineering degree from the Rochester Institute of Technology and a mechanical engineering degree from the University of Maryland. He had never attended either of these universities. When questioned about this, Kopera submitted a Maryland University transcript that was determined to be a forgery.
The effort by Kulbicki’s attorneys to get him a third trial is pending. (Based upon reportage in The Washington Post.)