Brad Cooper: Appeal info

[calgary123]

To oenophile, Its a little surprising given the tone of most of your posts that you are infuriated with the Butterfly Fund. Based on reading what you've written above, it seems your bigger issue is, you think that Brad did not do it, and therefore, having a group of people band together in sympathy for the victim with the implication that Brad killed Nancy is maddening. I don't take your comments to mean that the raising of money for a good cause was bad in and of itself, its just you disagree with the impetus. You also comment that it affected the jury.

Can't we state with certainty this "Fund" didn't impact the jury based on the process of jury selection? Had there been enough tainting of the jury pool via the charity, or more likely, the local news reports, I would expect the defence would have moved for a change of venue. I'm no Kurtz fan-- I don't like some of the many decisions he seems to have made defending, but he does seem to be diligent, and he had a second attorney with him who, in my view, had more know-how. If Kurtz participated in the decision and agreed to have Brad testify in the child custody matter, that was a massive mistake.

When your client faces the potential of life in prison with a jury, I would have to think that attorneys of this caliber deal with the issue of whether to ask for a change of venue. We can assume Kurtz did and decided to not proceed with such a request. We can also presume the defence team and Brad all participated in that decision.

As to the fund itself, there is plenty of information that has been put out into the public, let alone evidence put forward in court, that Brad and Nancy were in a long term, non-violent struggle where, depending on the position you take in that, Brad qualifies as an abuser. I'm not one to take sides in those kinds of issues and I do think Nancy shared a lot of blame in their domestic struggles, but there is a peaceful way to end a bad marriage, and murder should never be an option.

 

[oenophile]

To oenophile, Its a little surprising given the tone of most of your posts that you are infuriated with the Butterfly Fund. Based on reading what you've written above, it seems your bigger issue is, you think that Brad did not do it, and therefore, having a group of people band together in sympathy for the victim with the implication that Brad killed Nancy is maddening. I don't take your comments to mean that the raising of money for a good cause was bad in and of itself, its just you disagree with the impetus. You also comment that it affected the jury.

Not exactly, but close. Prior to the trial, I didn't have an opinion whether or not Brad committed the crime. So it is inaccurate to say that the reason that I object to the Butterfly Fund was because I thought he didn't do it. I objected because it assumed he did it even though he had not been convicted of the crime. It became more infuriating after watching the trial and realizing just how little evidence the prosecution had and how much the presumption of guilty clouded the investigation.

In addition, following the murder, the memory of Nancy was tied almost exclusively to this fund. All of the memorial events were connected with the fund. Which also meant that all of the events and all of the memories were veiled accusations of Brad. There was nothing in those memorial activities that allowed for the possibility that Brad did not do this.

Thus, something good (a charity) was simultaneously being used to advocate a position with regard to BC's guilt without a clear conclusion that he was the one that committed this crime.

Was there an effect on the jury pool? If there was, it probably wasn't substantial, I'll agree. But it certainly reinforced a public position as to his guilt.

As to the fund itself, there is plenty of information that has been put out into the public, let alone evidence put forward in court, that Brad and Nancy were in a long term, non-violent struggle where, depending on the position you take in that, Brad qualifies as an abuser. I'm not one to take sides in those kinds of issues and I do think Nancy shared a lot of blame in their domestic struggles, but there is a peaceful way to end a bad marriage, and murder should never be an option.

And depending on the position you take, Nancy could qualify as an abuser. She publicly berated Brad, she had plans to take the kids to another country, she spent money without regard, etc. Personally, I don't see either of them as abusers. And I think there is a certain presumption that the man is automatically accused of being abusive if there is discord in a marriage. Absent the murder, there is no domestic violence. Which is why the Fund clearly accuses BC of committing the murder.

On a broader note, I believe very strongly in the presumption of innocence. There have been many lives destroyed because people were falsely accused of doing something and convicted in the public opinion without proper evidence. This is one reason I am so critical of today's media. Falsely accused people are rarely considered victims of a crime themselves, and yet they are often incarcerated indefinitely, denied a livelihood, lose their relationships, and are otherwise destroyed. There are many many examples of this. Even in our own personal lives, most people have been accused of doing something we didn't do, such as cheating on a relationship, spilling a secret, doing something at work, etc. Imagine that your spouse believes that you cheated on them when you didn't. It is destructive.

The presumption of innocence is what makes the justice system work. An innocent person locked up usually means there is a guilty person getting away with a crime. And that is not justice.

 

[Madeleine74]

Oenophile wrote: In addition, following the murder, the memory of Nancy was tied almost exclusively to this fund. All of the memorial events were connected with the fund.

This is false, Oenophile.

Let's look at the actual timeline.

- Nancy was murdered July 2008.
- Memorials occurred in July 2008 and August 2008 (1 in North Carolina, 1 in Canada).
- Brad was arrested October 2008.
- The fund started 9 months after Nancy's death, in April 2009, simultaneously in North Carolina & Canada. Nancy's family started the fund in Canada. It was her family (and not only friends, as you continue to claim) who expressly wanted to start a fund in her name.
- The first event was held 11 months after her murder, in June 2009.
- A bench was donated by someone in her name in Cary. That bench doesn't include anything about her death. In fact it only lists the date of her birth.

 

[Madeleine74]

Since this is the appeal thread, please point to where in the appeal any mention is made regarding the fund?

Since a DV expert (verified expert, per the court) testified on what behaviors are part of the spectrum considered to be inclusive of DV, and she saw an escalating situation in which some DV behaviors were occurring, which culminated in the victim's murder a mere 12 to 16 hrs after the last time she saw the victim, I'll go with that expert's opinion vs the emotional opinion of a non-expert.

Regarding Change of Venue - Brad's attorneys filed a motion for a Change of Venue in August 2010 due to pretrial publicity. That motion was later denied, and I specifically remember the judge citing Kurtz & Blum's use of their own website during the hearing, including their posting a picture or 2 allegedly showing Nancy not wearing her necklace at a party (which was shown later during the trial that she was indeed wearing her necklace at the party, with other pictures from the same event as proof) as well as video showing Brad's 2 Harris Teeter shopping adventures, to get pretrial information out about the case.

 

[oenophile]

This is false, Oenophile.

Let's look at the actual timeline.

- Nancy was murdered July 2008.
- Memorials occurred in July 2008 and August 2008 (1 in North Carolina, 1 in Canada).
- Brad was arrested October 2008.
- The fund started 9 months after Nancy's death, in April 2009, simultaneously in North Carolina & Canada. Nancy's family started the fund in Canada. It was her family (and not only friends, as you continue to claim) who expressly wanted to start a fund in her name.
- The first event was held 11 months after her murder, in June 2009.
- A bench was donated by someone in her name in Cary. That bench doesn't include anything about her death. In fact it only lists the date of her birth.

You are correct, sorry, I should have been more precise with my language. The initial memorials immediately following her murder were not connected with the fund. And, as you say, the bench was not either.

The subsequent memorial events in the years after her murder were indeed connected with the fund.

In addition, the fund makes it VERY clear that this is about Brad. The website calls the murder an act of domestic violence. It even goes as far as to quote Bazemore. The entire front page assumes that Brad killed Nancy. It was created after he was arrested but long before the trial.

I realize that many people here believe 100% that Brad did it, and even a confession from another person wouldn't change their minds. But there is real evidence that says he did not commit this crime. Can you, just for a moment, imagine a scenario where Brad is innocent? Reread the website under that scenario.

Also, I could be mistaken, but I don't believe I said anywhere that it was only her friends that started the fund.

 

[oenophile]

Since this is the appeal thread, please point to where in the appeal any mention is made regarding the fund?

I never claimed the appeal had anything to do with the fund. This thread has drifted onto many topics. My claim regarding the fund is that it reflects some of the attitudes and accusations on this thread regarding Brad and domestic violence.

Since a DV expert (verified expert, per the court) testified on what behaviors are part of the spectrum considered to be inclusive of DV, and she saw an escalating situation in which some DV behaviors were occurring, which culminated in the victim's murder a mere 12 to 16 hrs after the last time she saw the victim, I'll go with that expert's opinion vs the emotional opinion of a non-expert.

This is where I find blatant sexism in accusations of Domestic Violence, especially from the "experts". There was no domestic violence in this house. That is what the EVIDENCE says. What you see on this thread is a lot of emotional belief that Brad was an abuser, when in fact the EVIDENCE says he was not.

I'll take the EVIDENCE over a bunch of emotional accusations on an internet forum every day.

 

[oenophile]

Since a DV expert (verified expert, per the court) testified on what behaviors are part of the spectrum considered to be inclusive of DV, and she saw an escalating situation in which some DV behaviors were occurring, which culminated in the victim's murder a mere 12 to 16 hrs after the last time she saw the victim, I'll go with that expert's opinion vs the emotional opinion of a non-expert.

Can you clarify which witness specifically gave this expert opinion?

 

[calgary123]

Regarding Change of Venue - Brad's attorneys filed a motion for a Change of Venue in August 2010 due to pretrial publicity. That motion was later denied, and I specifically remember the judge citing Kurtz & Blum's use of their own website during the hearing, including their posting a picture or 2 allegedly showing Nancy not wearing her necklace at a party (which was shown later during the trial that she was indeed wearing her necklace at the party, with other pictures from the same event as proof) as well as video showing Brad's 2 Harris Teeter shopping adventures, to get pretrial information out about the case.

Your memory about the happenings in this case is second to no one. I forgot about this. Thanks.

 

[Madeleine74]

Can you, just for a moment, imagine a scenario where Brad is innocent?

Once I saw all the evidence in the case, including the defense's claims that someone "planted" or "manipulated" the google search on BC's Cisco laptop to frame him, and even after listening to Massucci's proffer, no I could not imagine a scenario that was reasonable and incorporated all that was presented, for BC to be innocent. I saw suggestions made that planting could happen, but I saw no proof that anything of the sort did happen. To me it is not a reasonable scenario. BC's multiple lies alone, exposed during his deposition, showed me his word could not be trusted, and that had nothing to do with digital evidence.

I could accept a jury might not think the B.A.R.D. threshold had been reached by the state, but then they decided unanimously it had. Further, I know more than the jury -- for instance, I know that Chris Frye of Cisco found a log file entry in BC's work laptop windows systems event that points to the 3825 router with the same MAC ID as the one BC claimed to have taken home, being configured around 10:20pm on July 11, 2008, at time when Cooper claimed to be asleep. There was a proffer in court. The jury never heard about that, but I can't pretend I'm not aware.

 

[Madeleine74]

Can you clarify which witness specifically gave this expert opinion?

http://www.wral.com/specialreports/nancycooper/video/9372096/

Day 17, April 1, 2011. Susan Crook, witness.

 

[oenophile]

http://www.wral.com/specialreports/nancycooper/video/9372096/

Day 17, April 1, 2011. Susan Crook, witness.

That's what I thought. I rewatched that testimony.

1. She was not proffered as an expert witness.
2. She did not state, as an expert opinion, that Nancy was the victim of domestic violence.
3. The call to Interact was based on a conversation with HP, not with NC. It was all based on hearsay. We learned later that HP did not present an accurate view of what happened in the household.
4. The main reason that she suggested that NC contact Interact was around finances, so that she could have a fund to leave if she wanted to.

Thus, the statement that an expert described an escalating DV situation is inaccurate at best, and misleading at worst.

 

[oenophile]

Once I saw all the evidence in the case, including the defense's claims that someone "planted" or "manipulated" the google search on BC's Cisco laptop to frame him, and even after listening to Massucci's proffer, no I could not imagine a scenario that was reasonable and incorporated all that was presented, for BC to be innocent. I saw suggestions made that planting could happen, but I saw no proof that anything of the sort did happen. To me it is not a reasonable scenario. BC's multiple lies alone, exposed during his deposition, showed me his word could not be trusted, and that had nothing to do with digital evidence.

And HP's and JA's lies told in court tell me that they are not to be trusted. Or did they lie? Or did they remember things differently and learn that their memories were not as accurate as they thought?

The whole "BC's multiple lies" is a farce. While it may be true that he hid the identity of someone during the deposition, his memory is like anyone's, everyone remembers things differently than reality. What you haven't shown is deception.

And you continue to completely ignore the actual exculpatory evidence.

I could accept a jury might not think the B.A.R.D. threshold had been reached by the state, but then they decided unanimously it had. Further, I know more than the jury -- for instance, I know that Chris Frye of Cisco found a log file entry in BC's work laptop windows systems event that points to the 3825 router with the same MAC ID as the one BC claimed to have taken home, being configured around 10:20pm on July 11, 2008, at time when Cooper claimed to be asleep. There was a proffer in court. The jury never heard about that, but I can't pretend I'm not aware.

We shall see what that actual evidence is. As I said, I am willing to be convinced that he is guilty, and if indeed it can be proven that the specific router mentioned was being configured that night on his computer, I would likely be convinced. But as we've seen several times, the reality is far from what the prosecution and the police want us to believe.

 

[Madeleine74]

There is no actual exculpatory evidence. If there was, his attorneys would not have waited or allowed him to sit in jail for months and months while they prepared a defense to take the case to trial. If there was actual exculpatory evidence, they would have gotten the case dismissed. Instead they crafted a defense around the evidence to try and create reasonable doubt for the jury. They did the best they could with what they had to work with.

The only thing one can say is that they aren't convinced he committed the murder because the evidence did not convince them BARD.

This is how it goes in circumstantial cases. There is no video of the murder, no eyewitness to the murder, and unless he confesses to the crime, there is no direct evidence.

And if he does take a 2nd degree plea then it cannot be said he didn't commit the murder and he couldn't have committed the murder. All this imagined exculpatory evidence will evaporate if he takes a plea.

 

[oenophile]

There is no actual exculpatory evidence.

This is absolutely false. There is an abundance of exculpatory evidence.

1. The autopsy shows that NC died without food in her stomach, with a high level of caffeine, and with a level of alcohol consistent with having already processed the alcohol from the party.
2. The phone call.
3. The child saying she saw her mother (not admitted into evidence).
4. The sightings of Nancy jogging.

ALL of these are exculpatory.

Exculpatory evidence

Evidence, such as a statement, tending to excuse, justify, or absolve the alleged fault or guilt of a defendant.

There is a LOT of other circumstantial evidence that taken together suggest that he is not guilty. But the above would definitely fall directly under the Brady rule for exculpatory evidence.

 

[oenophile]

This is how it goes in circumstantial cases. There is no video of the murder, no eyewitness to the murder, and unless he confesses to the crime, there is no direct evidence.

Here we go again with the "circumstantial evidence" lecture. Most evidence in criminal cases is circumstantial. Both circumstantial evidence and direct evidence can be credible or not credible. You can have direct evidence, such as an eyewitness to the crime, and that direct evidence can be deemed not credible if the witness isn't credible. Exculpatory evidence can be direct or circumstantial.

And all of that is irrelevant, and something of a red herring. Whether the trier of fact examines direct or circumstantial evidence to determine the facts, the standard and the burden of proof is the same.

 

[Madeleine74]

People want to see proof of a murder and who committed it. A video of the murder would be their best direct evidence. Or, barring that, they want the perp to come forward and admit to the deed, even if it's the defendant. Well tough luck as neither of those things happen very often. Eye witnesses can be a very mixed bag and rife with error even with the very best intentions, as we well know.

You keep claiming there is "exculpatory" evidence that prooves Cooper is innocent. And no, there isn't. His attorneys, who were quite qualified, would never have allowed him to sit in jail if any exculpatory evidence existed, while they prepared for his trial over months and months. Changing the subject to grasp onto one statement in my post isn't going to change the primary assertion that was made about "exculpatory" evidence existing. It doesn't exist in this case.

 

[oenophile]

People want to see proof of a murder and who committed it. A video of the murder would be their best direct evidence. Or, barring that, they want the perp to come forward and admit to the deed, even if it's the defendant. Well tough luck as neither of those things happen very often. Eye witnesses can be a very mixed bag and rife with error even with the very best intentions, as we well know.

Actually, many defendants do indeed admit the deed. That is why so many convictions are based on plea bargains.

You keep claiming there is "exculpatory" evidence that prooves Cooper is innocent. And no, there isn't. His attorneys, who were quite qualified, would never have allowed him to sit in jail if any exculpatory evidence existed, while they prepared for his trial over months and months. Changing the subject to grasp onto one statement in my post isn't going to change the primary assertion that was made about "exculpatory" evidence existing. It doesn't exist in this case.

No offense, but your post suggest that you really do not understand the definition of exculpatory evidence, even though I just provided it in the last post.

The trier of fact determines what is factual and what is not. In this case, the trier of fact is the jury. Evidence is used to determine fact. Exculpatory evidence is evidence that tends to exculpate a defendant. The trier of fact determines if the inculpatory evidence outweighs the exculpatory evidence. Or for that matter, whether something is inculpatory or exculpatory. A judge can determine if evidence is exculpatory based on the Brady rule, and therefore needs to be provided to the defendant.

Contrary to your statement, the existence of exculpatory evidence does not equal a get-out-of-jail card. It must be weighed against the other evidence in the case by the trier of fact. However, the defense can use this evidence at trial to show reasonable doubt. Note, the defense NEVER has to prove innocence, the burden is entirely on the state.

Exculpatory evidence absolutely exists in this case. Ask any criminal lawyer if any of the evidence I listed in the previous post could have been withheld from the defense based on the Brady rule.

 

[thefragile7393]

Thank you Madeleine74 for such wonderful posting

 

[Madeleine74]

Exculpatory evidence (definition): Exculpatory evidence is evidence that favors a defendant in a criminal trial and tends to establish the defendant’s innocence. It shows that a defendant had no criminal intent to commit the crime.

http://definitions.uslegal.com/e/exculpatory-evidence/

I haven't seen evidence in this case that establishes BC's innocence.

 

[Madeleine74]

This is absolutely false. There is an abundance of exculpatory evidence.

1. The autopsy shows that NC died without food in her stomach, with a high level of caffeine, and with a level of alcohol consistent with having already processed the alcohol from the party.

False. NC's autopsy indicated a red substance as well as a segment of what appeared to be onion in her stomach. The level of alcohol was consistent with the level of decomposition, per the M.E. There wasn't a "high" level of caffeine, there was caffeine found in her system. The M.E. testified caffeine can be detected well over 24 hours in the system. Nancy was witnessed drinking diet coke at lunch, approximately 12 to 15 hours before her death, which has caffeine.


2. The phone call.

The phone calls don't prove who "answered" on the other end, if anyone. It only establishes that calls were made from BC's cell phone to his home phone and the call terminated. There is no proof that it was Nancy who answered, or that any human answered.


3. The child saying she saw her mother (not admitted into evidence).

We don't know what the child said, specifically, nor is this evidence in the trial. Brad told investigators his eldest daughter was asleep and did not wake up. According to Brad, Nancy got dressed in her running gear downstairs, having found what she needed without him needing to get anything from upstairs where he was, and then immediately left. According to Brad, the eldest child was asleep in her bed at that time, and did not wake up until around 8:30am.


4. The sightings of Nancy jogging.

You keep claiming the sightings were Nancy. We don't know who she/they were. The only data is that a tall, female runner with a ponytail was seen running. This is when multiple people, multiple females who could be described exactly the same way, are out running on a weekend morning. No runner was seen in distress. No one heard or saw anything that indicated someone in trouble, someone being hassled.


ALL of these are exculpatory.

No they aren't.


There is a LOT of other circumstantial evidence that taken together suggest that he is not guilty. But the above would definitely fall directly under the Brady rule for exculpatory evidence.

No, there's just circumstantial evidence that can be interpreted by a jury and, in fact, was, as his culpability in the crime and thus they determined unanimously he was guilty.