State v. Hunt & HardyState v. Hunt & Hardy
On 9 March 2007, Baltimore Sun reporter Jennifer McMenamin (“McMenamin”) reported alarming questions about the academic qualifications of a high-ranking Maryland law enforcement ballistics expert named Joseph Kopera (“Kopera”) (the “2007 Article”).1 McMenamin wrote that Kopera lied
allegedly, as an expert
Pursuant to Maryland Code (2001, 2008 Repl. Vol, 2014 Cum.Supp.), Criminal Procedure Article, § 8-301, Ronnie A. Hunt, Jr. (“Hunt”), and Kevin Hardy (“Hardy”) (collectively, “Respondents”), both incarcerated currently, filed in 2011 and 2012, respectively, Petitions for Writ of Actual Innocence in their unrelated cases. Both alleged that newly discovered evidence relative to Kopera, who testified in their trials as a prosecution witness, created a substantial or significant possibility that the outcomes (convictions) in their respective 1991 and 1989 trials may have been different (had Kopera not lied) and that such evidence could not have been discovered in time for them to move timely for a new trial pursuant to Maryland Rule 4-331.3 Their petitions characterized the questions
about Kopera’s qualifications
I. Facts
A. Ronnie A. Hunt, Jr.
Following a jury trial spanning several days in September of 1991, Ronnie A. Hunt, Jr. (“Hunt”) was convicted on 25 September 1991 in the Circuit Court for Baltimore City of first-degree murder and use of a handgun in the commission of a crime of violence. The jury found that Hunt, along with his co-defendant, Harry Johnson, III, on 10 April 1991 shot to death Sheldene Simon on the front lawn of the victim’s home in Baltimore during a gunfight involving multiple shooters. Hunt was sentenced to life imprisonment for murder, plus a consecutive twenty years for the handgun offense. Hunt’s convictions were affirmed in 1993 by the Court of Special Appeals on direct appeal in an unreported opinion.
Hunt filed on 8 April
In 2007 it was unveiled by the Office of the Public Defender Innocence Project and the Maryland State Police that Joseph Kopera, reportedly an expert in ballistics, had in fact testified and lied under oath about his academic credentials for years, and probably falsified evidence as well. At the time of Kopera’s reported death as a result of a self-inflicted gunshot wound, he was employed with the Maryland State Police, after being employed with the Baltimore City Police Department for approximately 21 years. Kopera was the lynchpin in the State’s case, in which [Hunt] was convicted based solely on the testimony of Kopera, who has since become known as a liar and fraud.
(minor alterations added). Later, in a section of Hunt’s Amended Petition titled “STATEMENT OF FACTS,” Hunt alleged the following:
A number of inconsistencies in Kopera’s trial testimony in several or more cases regarding his academic credentials prompted an investigation or background check on Kopera by Ms. Michele Nethercott, chief attorney, out of the Office of the Public Defender Innocence Project. That also led to
a subsequent investigation by the Maryland State Police, which unveiled some very troubling facts, that Kopera had been “lying” about his academic credentials for years, all while testifying under oath in countless court rooms in Baltimore City, the State of Maryland, and perhaps, state and federal courts in Virginia, Delaware, and Pennsylvania. It has been proven that Kopera wasn’t only a liar, but a fraud as well. . . .
(minor alterations added).
Hunt argued that Kopera’s testimony in his capacity as the State’s ballistics expert was the State’s “only evidence” against him and “the lynch [sic] pin in the State’s case.” Hunt reproduced a portion of the trial transcript in his case where Kopera discussed his (fraudulent) qualifications.6 He reproduced then portions of the trial transcript where Kopera discussed a bullet specimen recovered from Simon’s body, a semiautomatic pistol, and Kopera’s process of “match[ing]” the two. Hunt noted that the State had not produced any DNA, fingerprints, or eye witnesses who placed him at the scene of the murder, and so, “without the false testimony of [Kopera], regarding both credentials and the murder weapon, it is highly unlikely that the State would have proven their case against [Hunt] beyond a reasonable doubt.” Hunt surmised penultimately:
Every factual finding made by the jury hinged upon a determination that Kopera testified credibly. If Kopera’s fake credentials and/or false testimony had been known, however, it is reasonably probable that the outcome of the trial would have been different[,] because his testimony probably would not have been as credible.
Hunt concluded by requesting, among other things, “a reversal of his conviction and unconditional release, otherwise, a new trial” and that “a prompt hearing be set in this matter.”
The Circuit Court denied
B. Kevin Hardy
Following a jury trial, Kevin Hardy (“Hardy”) was convicted on 22 March 1991 in the Circuit Court for Baltimore City of first-degree murder, use of a handgun in a crime of violence, and unlawfully wearing, carrying, and transporting a handgun. The jury found that Hardy, along with his co-defendant Ronald Nance, shot to death Aaron Carroll and shot and wounded Sandra Keve in the Flag House housing projects in Baltimore City on 3 April 1990. Hardy was sentenced to life imprisonment, plus forty-five years. Hardy’s convictions were affirmed by the Court of Special Appeals on direct appeal and ultimately the Court of Appeals. Nance and Hardy v. State, 93 Md.App. 475, 613 A.2d 428 (1992), aff‘d, 331 Md. 549, 629 A.2d 633 (1993).
Hardy filed on 11 March 1997 a Petition for Post-Conviction Relief, which was denied on 26 March 1998. Hardy followed that with an Application for Leave to Appeal in the Court of Special Appeals, which was denied in an unreported, per curiam opinion on 25 June 1998. Hardy filed pro se on 31 July 2012 a Petition for Writ of Actual Innocence (the “Hardy Petition” or “Hardy’s Petition”) in the Circuit Court. Hardy’s Petition reproduced the list of “requirements” from § 8-301 in numerical list form and marshalled various allegations and arguments in subheadings under each called-out statutory requirement. Under a heading titled “Grounds,” Hardy alleged the following:
The State’s key witness, Joseph Kopera, was an imposter. Kopera lied relentlessly about his credentials to the jury in [Hardy’s] case. And, Kopera manufactured his testimony to bolster the State’s case-in-chief against Petitioner.
(minor alterations added).
The Circuit Court denied, without a hearing, Hardy’s petition on 14 August 2012.
C. All Together Now
Hunt and Hardy appealed individually to the Court of Special Appeals, claiming that the Circuit Court8 erred in denying their petitions without a hearing. In separate unreported opinions, the intermediate appellate court reasoned
that Douglas v. State, 423 Md. 156, 31 A.3d 250 (2011),
In each case, the State petitioned for a writ of certiorari, which petitions we granted on 21 October 2014 to consider the following common question:
Did the Court of Special Appeals incorrectly reverse the circuit court’s denial of [the Respondents’] amended petition[s] for writ of actual innocence without a hearing where [the Respondents] did not satisfy the statutory requirements of Section 8-301 and where the Court of Special Appeals’ ruling was inconsistent with its own case authority on the issue?
State v. Ronnie A. Hunt, Jr., 440 Md. 225, 101 A.3d 1063 (2014); State v. Kevin Hardy, 440 Md. 225, 101 A.3d 1063 (2014).
II. Are Hunt and Hardy Entitled to Hearings on Their Petitions for Writ of Actual Innocence?
A. Standard of Review
In Douglas, 423 Md. at 165, 31 A.3d at 255, we held that “the denial of a petition for writ of actual innocence is an immediately appealable order, regardless of whether the trial court held a hearing before denying the petition.” We did not set out the appropriate standard of review for appeals in such matters; however, the Court of Special Appeals concluded rightly elsewhere that the standard of review when appellate courts consider the legal sufficiency of a petition for writ of actual innocence is de novo. See Ward v. State, 221 Md.App. 146, 156, 108 A.3d 507, 513 (2015); Hawes v. State, 216 Md.App. 105, 133, 85 A.3d 291, 308 (2014); Keyes v. State, 215 Md.App. 660, 669-70, 84 A.3d 141, 146-47 (2014); id. at 670 n. 6, 84 A.3d at 147 n. 6. Courts reviewing actions taken by a circuit court after a hearing on a petition for writ of actual
B. Section 8-301
Section 8-301 of the Criminal Procedure Article allows certain individuals9 to petition for a writ of actual innocence based on newly discovered evidence. Section 8-301(e) provides that a court “shall” hold a hearing on a petition for writ of actual innocence in certain circumstances:
(e) Hearing.—(1) Except as provided in paragraph (2) of this subsection, the court shall hold a hearing on a petition filed under this section if the petition satisfies the requirements of subsection (b) of this section and a hearing was requested.
(2) The court may dismiss a petition without a hearing if the court finds that the petition fails to assert grounds on which relief may be granted.10
Subsection (b) of § 8-301 sets out the pleading sufficiency requirements for petitions for writ of actual innocence:
(b) Requirements.—A petition filed under this section shall:
(1) be in writing;
(2) state in detail the grounds on which the petition is based;
(3) describe the newly discovered evidence; (4) contain or be accompanied by a request for hearing if a hearing is sought; and
(5) distinguish the newly discovered evidence claimed in the petition from any claims made in prior petitions.
(6) that the request for relief is based on newly discovered evidence which, with due diligence, could not have been discovered in time to move for a new trial pursuant to
Rule 4-331 ;(7) a description of the newly discovered evidence, how and when it was discovered, why it could not have been discovered earlier, and, if the issue of whether the evidence could have been discovered in time to move for a new trial
pursuant to Rule 4-331 was raised or decided in any earlier appeal or postjudgment proceeding, the identity of the appeal or proceeding and the decision on that issue;(8) that the newly discovered evidence creates a substantial or significant possibility, as that standard has been judicially determined, that the result may have been different, and the basis for that statement;
(9) that the conviction sought to be vacated is based on an offense that the petitioner did not commit;
. . .
(12) the relief requested; and
(13) whether a hearing is requested.
The “grounds” referred to in § 8-301(e)(2) and (b)(2) are set out in § 8-301(a):
(a) Grounds.—A person charged by indictment or criminal information with a crime triable in circuit court and convicted of that crime may, at any time, file a petition for writ of actual innocence in the circuit court for the county in which the conviction was imposed if the person claims that there is newly discovered evidence that:
(1) creates a substantial or significant possibility that the result may have been different, as that standard has been judicially determined; and
(2) could not have been discovered in time to move for a new trial under
Maryland Rule 4-331 .12
When ruling on the merits of petitions for writ of actual innocence, circuit courts have at their disposal the ability to “set aside the verdict, resentence, grant a new trial, or correct the sentence, as the court considers appropriate.” § 8-301(f)(1); see
We determined in Douglas that § 8-301 “imposes a burden of pleading, such that a petitioner is entitled to a
In Douglas, we concluded that that petition14 satisfied § 8-301’s pleading requirement. 423 Md. at 183, 31 A.3d at 266. Douglas met easily the requirement of § 8–301(b)(1) by sub
We concluded that Douglas satisfied § 8-301(b)(2)’s requirement that the petition “state in detail the grounds in which the petition is based.” See id. As noted above, § 8-301(e)(2) authorizes a court to dismiss a petition for writ of actual innocence, without a hearing, “if the court concludes that the allegations, if proven, could not entitle a petitioner to relief.” Douglas, 423 Md. at 185, 31 A.3d at 267. We concluded ultimately that the grounds alleged by Douglas, “if proven, could entitle him to relief.” Id. (emphasis added). We explained:
Douglas asserted that there was newly discovered evidence that Officer Kopera, who had testified at Douglas’s trial, had falsified his credentials. Douglas submitted as an exhibit with his petition a newspaper article explaining his allegation of newly discovered evidence. Dated March 9, 2007, the article reported that “Joseph Kopera, head of the Maryland State Police firearms unit, claimed on witness stands to have degrees that he never earned. . . . Questions regarding the longtime firearms and toolmarks examiner’s credentials were raised several weeks ago by state public defenders working with the Innocence Project.” The article explained that “the chief attorney with the . . . Innocence Project . . . became concerned about Kopera’s qualifications while reviewing transcripts” and noting inconsistencies regarding the credentials he testified he earned. Given that there were “hundreds of people he helped convict” and that Kopera had worked for “21 years in the Baltimore Police Department’s crime laboratory before he was lured away in 1991 to join the state police,” viewing inferences in the light most favorable to Douglas, it could be that the evidence could not have been discovered within time to move for a new trial under
Rule 4-331 .
Douglas, 423 Md. at 185-86, 31 A.3d at 267-68. Hunt’s and Hardy’s petitions make almost identical allegations to those in
Douglas “describe[d] the newly discovered evidence,” in satisfaction of § 8–301(b)(3), by alleging that on 9 March 2007 “an article was published that ‘exposed Joseph Kopera . . . as [a] perjurer.’ ” Douglas, 423 Md. at 183, 31 A.3d at 266. We noted that, as Kopera testified as an expert witness for the State during Douglas’s trial, the “allegation, viewed in the light most favorable to Douglas, could be proven to be newly discovered evidence.” Douglas, 423 Md. at 184, 31 A.3d at 266. By the same token, the Hunt and Hardy Petitions satisfy also § 8-301(b)(3)’s “newly discovered evidence” requirement.
Construing liberally Douglas’s pro se petition, we concluded that it satisfied § 8-301(b)(4)’s requirement that a petition “contain or be accompanied by a request for hearing if a hearing is sought.” See id., 31 A.3d at 266-67. Although Douglas did not state expressly “I request a hearing,” we concluded that the petition “reflect[ed] Douglas’s indicated desire for a hearing” as his petition recited the complete
As Douglas had not filed previously a petition for writ of actual innocence,16 § 8–301(b)(5) did not apply in his case as he had no claims to distinguish from those made in prior filings. Douglas, 423 Md. at 184-85, 31 A.3d at 267. Like Douglas, Hunt and Hardy filed various postconviction motions, but neither filed previously a petition for writ of actual innocence, and so § 8–301(b)(5) does not figure here.
As
discovered and why it could not have been discovered earlier. Hardy’s Petition satisfies the pleading requirement of
Hardy’s Petition does not comply, however, with other technical requirements of
assert grounds on which relief may be granted” (emphasis added)). It does not appear that the Circuit Court dismissed Hardy’s Petition on 14 August 2012 on any of these grounds. Had that been the apparent basis for that dismissal, without a hearing, the trial court did not appear to consider the “substantial compliance” relief valve of
We could find no reported appellate cases in which a petition filed after 1 October 2011 was dismissed for lack of compliance with the more technical requirements of
III. Variations on a Theme: What Could Happen at the Hearings To Be Held?
In Douglas, after we concluded that the petitioner21 was entitled to a hearing, we emphasized that “although Douglas has satisfied the pleading requirement to assert grounds for relief, it does not follow automatically that he can prove his claim.” 423 Md. at 186, 31 A.3d at 268. We recognized that “decisions on the merits of requests for new trials based on newly discovered evidence, whether filed pursuant to
Although we conclude that [the Respondent] is entitled to a hearing, having sufficiently met the pleading requirements of [§ 8-301], “it does not follow automatically,” as the Court of Appeals has noted, “that he can prove his claim” at that hearing. Douglas, 423 Md. at 186 [31 A.3d 250]. We observe that Hunt may have difficulty doing so. In Jackson v. State, 216 Md.App. 347 [86 A.3d 97] (2014), this Court affirmed a circuit court’s denial of a petition for writ of actual innocence based on Kopera’s perjury, after holding a hearing on Jackson’s petition. The circuit court denied Jackson’s petition, after concluding that Jackson had not shown that Kopera’s misrepresentations were material, that he had not established that the purported “newly discovered evidence” “created a substantial or significant possibility that the result may have been different,” and that he had not acted with due diligence in discovering that Kopera had misrepresented his qualifications at his trial. . . .22
Such reserve is warranted, as Respondents face significant
In Douglas, we concluded that the allegations contained in the petition, if proven at the hearing, could have entitled Douglas to such relief. 423 Md. at 185, 31 A.3d at 267. As discussed earlier, Douglas’s “newly discovered evidence” regarding Kopera’s scholastic qualifications are almost verbatim those of Hunt and Hardy. Douglas’s convictions23 arose out of an altercation between himself and several Baltimore City police officers outside a bar in Baltimore City where he shot two police officers. Douglas, 423 Md. at 165, 31 A.3d at 255-56. Seven police officers and two ballistics experts were called to testify at his trial, one of the latter of which was Kopera. Douglas, 423 Md. at 166, 31 A.3d at 256. Each of the two experts examined at least one bullet and both linked the bullet with Douglas’s gun. Id. Even in light of the other evidence against Douglas, we determined that a Circuit Court could find that the new evidence “creates a substantial or significant possibility that the result may have been different.” Douglas, 423 Md. at 185-86, 31 A.3d at 267-68. In the present cases, the Circuit Court may very well find, after a hearing, that Hunt and Hardy carry successfully their burdens of proof and are entitled to relief based solely on proof of the allegations contained in their respective petitions.
We note further that Hunt and Hardy’s Petitions are not doomed necessarily because the newly discovered evidence, as
The distinction between “impeaching” and “merely impeaching,” albeit nuanced, is pivotally important. Newly discovered evidence that a State’s witness had a number of convictions for crimes involving truth and veracity or had lied on a number of occasions about other matters might have a bearing on that witness’s testimonial credibility, but would not have a direct bearing on the merits of the trial under review. Such evidence would constitute collateral impeachment and would, therefore, be “merely impeaching.” If the newly discovered evidence was that the State’s witness had been mistaken, or even deliberately false, about inconsequential details that did to [sic] go to the core question of guilt or innocence, such evidence would offer peripheral contradiction and would, therefore, be “merely impeaching.” If the newly discovered evidence, on the other hand, was that the State’s witness had actually testified falsely on the core merits of the case under review, that evidence, albeit coincidentally impeaching, would be directly
exculpatory evidence on the merits and could not, therefore, be dismissed as “merely impeaching.”
Jackson, 164 Md.App. at 697-98, 884 A.2d at 704-05.
The intermediate appellate court deployed this reasoning at least twice in cases where convicted persons challenged their convictions and relied at least in part on the revelations regarding Kopera’s mis-represented qualifications. In Kulbicki v. State, 207 Md.App. 412, 53 A.3d 361 (2012), rev’d on other grounds, 440 Md. 33, 99 A.3d 730 (2014), petition for cert, filed, Maryland v. Kulbicki, U.S., Jan. 16, 2015 (No. 14-848), after a hearing on a petition for postconviction relief, Kulbicki argued (among other things) that the State’s use of “perjured, false, and misleading expert ballistics testimony” denied him a fair trial. 207 Md.App. at 435, 53 A.3d at 374-75. Before moving on to substantive discussion of Kulbicki’s other arguments on appeal, the Court of Special Appeals noted that “Kulbicki waived any claims regarding Kopera’s perjury. To the extent that . . . a background investigation would have revealed that Kopera lacked the claimed college degrees, Kulbicki could have raised his contentions on direct appeal.” Kulbicki, 207 Md.App. at 444, 53 A.3d at 380. Because Kulbicki did not show that Kopera’s perjury was “material,” concluded the intermediate appellate court, his “valid constitutional claim recognizable under the [Uniform Postconviction Procedure Act]” failed on the merits. Kulbicki, 207 Md.App. at 446, 53 A.3d at 381. The court concluded that portion of its analysis by saying:
[T]here simply is no likelihood that the jury’s determination would have been influenced by the fact that Mr. Kopera did not have the academic credentials he claimed. As the State notes in its brief, the record reflected that ballistics is a field for which no college degree is offered, and the expertise for the field is usually based on experience, which Kopera had in copious amounts.
Kulbicki, 207 Md.App. at 447, 53 A.3d at 382 (internal quotations omitted). A majority of this Court reversed the Court of Special Appeals on other grounds.24 Kulbicki v. State, 440
Next, in Jackson, 216 Md.App. at 356-57, 86 A.3d at 102-03, a circuit court granted a hearing on a petition for writ of actual innocence where the petitioner alleged that Kopera’s alleged perjury was “newly discovered evidence” and that Kopera’s testimony bolstered critically the testifying victim’s version of events. At the hearing on his petition, Jackson introduced into evidence his trial transcript, as well as the
The Court of Special Appeals reviewed the lower court’s decision for abuse of discretion, in light of the trial court ruling on the merits after a hearing on the petition. Jackson, 216 Md.App. at 363-64, 86 A.3d at 106-07. In considering the “threshold question” of whether the newly discovered evidence could have been discovered in time to move for a new trial pursuant to
Notwithstanding the court’s acknowledgement that other courts have held that “where expert testimony is critical, false testimony about the expert’s credentials requires a new trial,” Jackson, 216 Md.App. at 374 n. 16, 86 A.3d at 113 n. 16, the appellate court concluded that Kopera’s testimony was “not critical” in Jackson’s trial, id., and there was no significant or substantial possibility that the jury could have reached a different result had it known of his prevarication regarding his academic degrees. Jackson, 216 Md.App. at 373-75, 86 A.3d at 112-13. It determined that a correct statement of Kopera’s qualifications would not have altered the result, as Kopera’s substantive testimony did not weigh heavily in favor of either litigant and that the evidence of Jackson’s guilt, without consideration of Kopera’s testimony, was compelling, based on the testimony of other witnesses. Id.
We offer no comment on the reasoning of the hearing judge or the Court of Special Appeals in Jackson of 2014 as that case is not before us. We note, however, that it would not be an abuse of discretion for a hearing judge to find that a defense attorney might fail, after nonetheless exercising due diligence before the revelations of 2007, to discover Kopera’s alleged fraud.25 We note also that a hearing judge might
If the Respondents prove their newly discovered evidence and also persuade the trial judge that they could not have discovered it in time to move for a new trial pursuant to
IV. Conclusion
Because the Petitions filed by Hunt and Hardy satisfy the pleading standards established by § 8-301 and evaluated in Douglas, Respondents are entitled to hearings on their Petitions. At those hearings, if Respondents are able to prove the allegations contained in their petitions, the hearing judge may conclude that the newly discovered evidence “creates a substantial or significant possibility that the result may have been different” and “could not have been discovered in time to move for a new trial under
Notes
Maryland Rule 4-331(a) provides that the court may, “in the interest of justice,” order a new trial on motion of the defendant within ten days of the verdict. Rule 4-331(c) provides that the court may grant a new trial:
on the ground of newly discovered evidence which could not have been discovered by due diligence in time to move for a new trial pursuant to section (a) of this Rule:
(1) on motion filed within one year after the later date of (A) the date the court imposed the sentence or (B) the date the court received a mandate issued by the final appellate court to consider a direct appeal from the judgment or a belated appeal permitted as post conviction relief; . . . .
Pursuant to Rule 4-332(d), petitions for a writ of actual innocence must be in writing and signed by either the petitioner or the petitioner’s attorney. Further, the petition must state also:
(1) the court in which the indictment or criminal information was filed and the file number of that case;
(2) if the case was removed to another court for trial, the identity of that court;
(3) each offense of which the petitioner was convicted, the date of the judgment of each conviction, and the sentence imposed;
(4) if the judgment was appealed, the case number in the appellate court, a concise description of the issues raised in the appeal, the result, and the date of the appellate court‘s mandate;
(5) for each motion or petition for post-judgment relief, the court in which the motion or petition was filed, the case number assigned to each proceeding, a concise description of the issues raised, the result, and the date of disposition;
. . .
(10) if the petitioner is not already represented by counsel, whether the petitioner desires to have counsel appointed by the court and, if so, facts establishing indigency; [and]
(11) that a copy of the petition, together with all attachments, was mailed to the State‘s Attorney of the county in which the petition was filed[.]
The Douglas opinion consolidated two cases. In both, the petitioners (Ellis R. Douglas, Jr., and Lamont Curtis) filed petitions for writ of actual innocence based on newly discovered evidence. Throughout our discussions here of the Douglas opinion, we refer to the petition filed by Douglas.
We determined that the petition filed by Curtis did not meet the requirements to obtain a hearing under § 8-301 because the evidence referred to by Curtis—an affidavit from his grandmother indicating that she never mentioned a certain name to investigating police—was known but unavailable (due to his grandmother’s health) at trial, and therefore not “newly discovered.” Douglas, 423 Md. at 186-87, 31 A.3d at 268.
In its briefs in the present cases, the State argues that the majority opinion in Kulbicki “confirms that the evidence which Hunt claimed to be newly discovered was available and could have been uncovered by him at the time of his trial.” The State asserts in this regard:
In Kulbicki, this Court, addressing the right to effective assistance of counsel in the context of a challenge to Comparative Bullet Lead Analysis (CBLA) evidence, concluded that evidence calling into question the conclusions of CBLA “was available” to Kulbicki’s counsel at trial but “was never exhumed” and “never explored, even though opportunity knocked.” This Court faulted Kulbicki‘s attorneys for failing to investigate and discover what the Court determined to be available material.
(citations omitted). The majority in Kulbicki held that his attorneys rendered ineffective assistance of counsel when they failed to investigate and cross-examine thoroughly the State‘s CBLA expert because that expert co-authored a report four years prior to trial that “presaged the flaws in CBLA evidence.” Kulbicki, 440 Md. at 40, 99 A.3d at 734. Hunt suggests that the Court’s conclusion in Kulbicki is inapposite because “[i]t is one thing to impose upon counsel the minimum requirement of readiness to impeach an opposing party‘s expert on the basis of . . . a prior inconsistent opinion; it is another to suggest that a criminal defense attorney must do what the State suggests would be so easy to do—but apparently failed to do itself—and perform a ‘thorough background investigation’ to discover fraud.” (emphasis in original). Hardy echoes Hunt‘s sentiment: “To require ‘a thorough background investigation,’ as the State puts it, from every defense counsel for every State’s expert disclosed in discovery of every criminal case is unworkable. To expect it when the expert is the State’s own employee is absurd. . . . A scientific report published and circulated in academic journals four years prior to trial does not equate with affirmative fraud and perjury.” (citations omitted). We agree with the Respondents that the majority opinion in Kulbicki—which did not even mention Kopera and did not involve a § 8–301 petition for writ of actual innocence—is distinguishable. See note 25. infra
At oral argument in the present cases, much discussion ensued over what constitutes reasonable trial preparation by defense attorneys. The State suggested that, as Kopera’s alleged perjury could have been discovered at trial or beforehand, it should have been. Attorneys for the Respondents suggested that it is unreasonable to expect defense attorneys to be the “human resources department’’ for the State’s employees who act as expert witnesses.
Kopera testified for over twenty years at trials as a State’s witness in his capacity as a municipal or State employee. As an objective fact, attorneys with unlimited time and resources could have discovered Kopera‘s fraud at any point during that time. We would avoid, however, the negative inference from the opinions of the Court of Special Appeals that no defense attorney representing a defendant at a trial in which Kopera testified exercised due diligence (prior to the discoveries made by the attorneys of the Innocence Project) in failing to discover his charade.