Authority for Maryland v. Kulbicki

Yesterday the Supreme Court handed down itsfirst opinionof the 2015 Term,Maryland v. Kulbicki.In a per curiam opinion, the Court reversed aMaryland Court of Appeals decisionthat had ordered post-conviction relief for Kulbicki based on his counsel’s ineffective failure to challenge flawed Composite Bullet Lead Analysis (CBLA) testimony. Over at the Forensics Forum, Professor Brandon Garrettoffers good analysison why the Court’s decision is flawed and unnecessarily stingy, especially when compared to last Term’s per curiam decision inHinton v. Alabama.To facilitate further discussion, I offer two maps thatprovideKulbicki‘s doctrinal context.

[For a bigger version of this map with links to the cases, click here].

As this first map shows,Kulbickionly cites five other Supreme Court opinions to justify its analysis. Citation analysis showsthe cases form a tight family network.Consider thatthe earliest caseKulbickicites is1963’sGideon v. Wainwright,the seminal right-to-counsel case. The next earliest case invokedisStrickland v. Washington, which lay the foundation for modern Ineffective Assistance of Counsel (IAC) doctrine.Stricklanditself citesGideon. Finally,Kulbickicites three more recent IAC cases, all of which citeStrickland, which citesGideon.Thus,Kulbickiconnects every case in its network toGideonat a maximum of three degrees.

[For a bigger version of this map with links to the cases, click here].

Another way to visualizeKulbicki'snetwork is pictured above. It uses aSpaeth Projection that shows both votes for outcome for cases and whether the cases “liberal” or “conservative” according to Spaeth. Interestingly, the average “degree of dissent” in this network is very low (0.29). For reference, a 9-0 case is said to have a 0 degree of dissent; a 8-1, a 0.25, a 7-2, a 0.5, a 6-3, 0.75, and a 5-4 a 1.0. Thus, this map shows the opinion largely cited uncontroversial authority in support of what the Court presumably hoped would be an uncontroversial conclusion.

Of course, theKulbickicourt does cite one 5-4 decision, 2005’sRompilla v. Beard. Yet this too is a savvy rhetorical choice. IngrantingIAC relief, theRompillamajorityobservedthat failure to look at a file the prosecution says it will use is ineffective, unlike “looking for a needle in a haystack, when a lawyer truly has reason to doubt there is any needle there.” In Kulbicki, the CourtdeniesIAC relief and citesRompillafor the affirmative proposition that lawyers don’t have to look for needles. The message is: even in a close-call case not too long ago, the liberal majority agreed that lawyers don’t have to look for needles; that’s how today’s unanimous Court sees this case. One need not agree with the outcome inKulbickito appreciate its doctrinal rhetoric.

This post was originally published at In Progress.