Pot, Meet Kettle? Supreme Court Criticizes Judicial Internet Research

It has been shown both empirically and anecdotally that the justices of the U.S. Supreme Court have conducted their own internet research in order to decide cases. But now that Court has criticized a Maryland appeals court for doing the same thing.

The Supreme Court's ruling in Maryland v. Kulbicki, No. 14–848, 577 U.S. ____ (Oct. 5, 2015) came when the state of Maryland asked the High Court to review a decision by the Maryland Court of Appeals that the defendant in a murder case had not had effective counsel. The defendant, James Kulbicki, was convicted in 1995 of murdering his girlfriend, primarily on the basis of comparative bullet lead analysis, a since-discredited technique which compared trace chemical components of bullets used in crimes to bullets "associated with" a suspect.

After the technique fell out of favor, Kulbicki argued that his trial attorneys should have discovered its deficiencies and used them to discredit the prosecution's case. The lower courts in Maryland rejected this argument, but the Maryland Court of Appeals -- the state's highest court -- agreed with Kulbicki and reversed his conviction. 440 Md. 33, 99 A. 3d 730 (Md. 2014). The court held that Kulbicki's trial attorneys should have cross-examined the government's witness who conducted the bullet analysis, using a report that the witness had co-written in 1991 which produced results that indicated problems with the bullet comparison technique.

The 1991 report did not explore the reasons for the results, nor did it question the soundness of the comparative bullet lead analysis technique. Nevertheless, the Maryland Court of Appeals held that "[h]ad Kulbicki’s attorneys investigated and discovered the 1991 Peele Report, they would have had a potent challenge to Agent Peele’s conclusion[s]" in the murder case.

The Maryland court's opinion does not say how Kulbicki's attorneys could have found the 1991 report during the 1995 trial. The report was published by the U.S. Government Printing Office, and thus would have been available in federal depository libraries. It was cited in articles published in the mid-2000s discrediting the bullet comparison technique.

The U.S. Supreme Court, in a per curiam (unsigned) opinion reversing the Maryland Court of Appeals ruling, criticized the Maryland court for "conducting its own Internet research nearly two decades after the trial" to find the report. "[T]here is no reason," the Supreme Court's decision says, "to believe that a diligent search would even have discovered the supposedly crucial report."

Thus the U.S. Supreme Court reversed the Maryland court's ruling, and reinstated Kulbicki's conviction.

While the National Law Review's description of the decision, saying that "it upbraided the Maryland Court of Appeals," is an overstatement, the per curiam ruling clearly disapproves of the Maryland court doing its own research online to determine that the 1991 report was widely distributed.

But this does not mean that the Supreme Court justices themselves don't do the same thing, as do judges in lower courts. In April, a dispute over the propriety of internet research by judges led to an argument among the judges of the federal Seventh Circuit Court of Appeals. (Appeals in that case continue.)

Does the Supreme Court's decision in Kulbicki mean that the courts -- from the Supreme Court on down -- will stop doing their own online research? I doubt it. Particularly because the Supreme Court itself just announced that its website now includes a repository of online materials cited in the Court's decisions, so that the material remains available after the original links to the material become stale.