Effective assistance and CBLA evidence

US v. Higgs: The Fourth Circuit affirmed the district court’s denial of Higgs’ 28 U.S.C. § 2255 motion, having granted a certificate of appealability to consider his due process and ineffective assistance arguments predicated on the introduction of Comparative Bullet Lead Analysis ("CBLA") evidence.

Higgs had been convicted in 2000 in federal district court for his involvement in the abduction and murders of three women at the Patuxent National Wildlife Refuge; Higgs received nine death sentences, which the Fourth Circuit affirmed. Higgs filed motions for a new trial, which the district court denied and the Fourth Circuit affirmed. The government presented the contested CBLA evidence along with other forensic evidence of "rifling" at Higgs’ trial. Prior to Higgs’ attempt at attacking his convictions collaterally, the FBI and others began questioning the significance of bullet lead matching, which resulted in a study conducted by the National Research Council in 2004. Upon the findings of this study, the FBI Laboratory announced that it would no longer perform CBLA, whereas it had been widely used in courts at the time of Higgs’s trial and until at least 2003. Higgs claimed that a Brady violation occurred when the government failed to produce the internal reports that he believed could have impeached the forensic expert’s testimony on CBLA; he also argued that trial counsel were ineffective for failing to present any available expert testimony to challenge the CBLA evidence, and post-trial counsel were also ineffective because they failed to file a motion for a new trial on the basis of the studies on CBLA.

The Fourth Circuit concluded that there was no reasonable probability that the district court would have excluded the CBLA testimony at Higgs’ trial if his attorneys had challenged it, or that the penalty phase of the trial would have ended differently if the CBLA evidence had been excluded or subject to additional cross-examination. Additionally, criticisms of CBLA appear to have been available to others, not just the within the government, so the Fourth Circuit determined that counsel had not been constitutionally ineffective for failing to file a motion under Rule 33 for a new trial because of the post-trial studies.