Since Nancy sometimes did wear the necklace and sometimes didn't wear the necklace, there's no reason to say anything about the necklace during trial. However, many witnesses testified that Nancy never took off the necklace. That was untrue. If it were true, it would be the "smoking gun", and the jury would have to conclude that Brad was the murderer ... simply because the necklace was in a drawer in the house. The necklace is a bit like the decorative sticks and ducks ... big theory about the ducks being part of the murder, but the ducks were at the house when police searched it. They didn't notice the ducks during their search, then the neighbors made a big fuss about the ducks, then the prosecution used that duck hysteria in their theory, and then the ducks were located at a lawyer's office. The neighborhood clique put all sorts of ideas in the head of the prosecutor and he ran with it from the beginning.
Brad Cooper: Appeal info
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Since Nancy sometimes did wear the necklace and sometimes didn't wear the necklace, there's no reason to say anything about the necklace during trial. However, many witnesses testified that Nancy never took off the necklace. That was untrue. If it were true, it would be the "smoking gun", and the jury would have to conclude that Brad was the murderer ... simply because the necklace was in a drawer in the house. The necklace is a bit like the decorative sticks and ducks ... big theory about the ducks being part of the murder, but the ducks were at the house when police searched it. They didn't notice the ducks during their search, then the neighbors made a big fuss about the ducks, then the prosecution used that duck hysteria in their theory, and then the ducks were located at a lawyer's office. The neighborhood clique put all sorts of ideas in the head of the prosecutor and he ran with it from the beginning.
The defense did not show "Nancy sometimes did wear the necklace and sometimes didn't wear the necklace". They showed, after looking at every picture taken of Nancy in recent history, there was one where she was not wearing the necklace.
They did not provide an explanation how and why it was left carelessly lying on a foyer table.
Like you, they change the subject to something else, instead of delving into details.
Madeleine74
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A clarification.: No still picture was shown in which NC did not have the necklace or earrings on from the time she got them. The necklace was purchased 8 or 9 months before her murder. Only a grainy video lacking detail from Harris Teeter was shown. Witnesses said she was wearing both at the pool... up till 1:30pm. She was witnessed wearing the necklace around 3:30pm and also was witnessed wearing it at the BBQ, starting at 6pm.
Friends provided pictures of Nancy wearing the necklace and claimed that she never took it off. People that were with her at the pool on the afternoon of the party claimed that she was wearing her necklace. Video from that day, taken after Nancy left the pool and before she went home, showed that she was not wearing her necklace. What the defense demonstrated was that the claims regarding the necklace, made by friends and family, were untrue. They did not look at every picture in history to find one where she was not wearing the necklace.
It was found in a drawer.
Personal remarks have no place here.
The author sat in court and listened to testimony. I'm pretty sure that what she included in her book was accurate.
pseudo_hum
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The jury got it right. There are bound to be inconsistencies in any case; as in this case the defense is going to project it as reason to discount all other testimony. Its good the jury did not let that distract them.
Madeleine74
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Last week the state filed their response brief to the defense's appellate brief.
Here it is
It's a 52 page document though I found it to be a fairly quick read, considering its length.
We now know from the details in the brief there were indeed 2 other computer forensic experts (named in the brief) who were on the defense team's original witness list from the beginning, either of whom they could have called during their CIC (case in chief) but for some reason chose not to. (Makes you wonder why. I suspect neither would agree to testify to what the defense wanted them to say and thus they were not called).
From here it's a wait for the appellate judges to look at the case and make a decision. How long will it take to wind its way through? Months, with all the cases ahead of this one on the dockets.
Here it is
It's a 52 page document though I found it to be a fairly quick read, considering its length.
We now know from the details in the brief there were indeed 2 other computer forensic experts (named in the brief) who were on the defense team's original witness list from the beginning, either of whom they could have called during their CIC (case in chief) but for some reason chose not to. (Makes you wonder why. I suspect neither would agree to testify to what the defense wanted them to say and thus they were not called).
From here it's a wait for the appellate judges to look at the case and make a decision. How long will it take to wind its way through? Months, with all the cases ahead of this one on the dockets.
azwildcat
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I, not knowing how the system really works for appeals, am impressed with how quickly things have progressed since the court put out the transcripts.
NCEast
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2/28/2013 4:00pm Court rules on appeal: Raleigh, N.C. The state of North Carolina says a Superior Court judge ruled properly in the high-profile murder trial of a Cary man convicted nearly two years ago of killing his wife.
http://www.wral.com/state-responds-to-brad-cooper-appeal/12166074/
http://www.wral.com/state-responds-to-brad-cooper-appeal/12166074/
From WRAL:
"The North Carolina Court of Appeals has scheduled oral arguments for April 9 in the case of a Cary man serving life in prison for killing his wife."
More at:
http://www.wral.com/nc-appeals-court-to-hear-brad-cooper-case-next-month/12242670/
"The North Carolina Court of Appeals has scheduled oral arguments for April 9 in the case of a Cary man serving life in prison for killing his wife."
More at:
http://www.wral.com/nc-appeals-court-to-hear-brad-cooper-case-next-month/12242670/
4/5/2013
STATE OF NORTH CAROLINA (Plaintiff) V. BRADLEY GRAHAM COOPER (Defendant)
From WAKE Case No. 08 CrS 22922
* * * * * * * * * * * * * * * * * * * *
MOTION STRIKE THE STATEMENT OF FACTS IN STATES BRIEF AS A SANCTION FOR VIOLATING THE RULES RELATING TO STATEMENTS OF FACT And INCORPORATED BRIEF IN SUPPORT OF THE MOTION
* * * * * * * * * * * * * * * * * * * *
Comes now the Defendant-Appellant, by his undersigned appointed counsel, and, pursuant to the provisions of Rules 25, 28 and 37, N.C.R. App. P., respectfully requests that the Court strike the Statement of Facts in the States Brief as a sanction for violating the rules relating to the content of a statement of facts. As shown in more detail in the Brief in Support of this motion below, the States statement of the facts is argumentative and is not a full, complete accurate statement of all material facts. In support of this motion, the Defendant-Appellant shows the following:
1. On May 5, 2011, the defendant was convicted of first degree murder and sentenced to life imprisonment without parole. He appealed
2. On May 17, 2011, undersigned counsel was appointed to represent the defendant on appeal. The defendant was found indigent for appeal purposes and the transcripts were ordered by the clerk on May 5, 2011.
3. This is an extremely long, complicated case and highly publicized. The transcripts are approximately 10,000 pages, very few of which are jury voir dire. The testimony includes a vast array of hotly disputed facts.
4. The State has filed its Brief in this Court. As permitted by the Rules of Appellate Procedure, the State elected to include a statement of facts in its brief.
5. As set out in the incorporated Brief in Support of Motion, below, the statement of facts in the States Brief violates the Rules of Appellate Procedure governing the content of a statement of facts. It is argumentative. It is not a full and complete recitation of the material facts. It selectively pulls out small bits of testimony relating to an issue of fact in dispute at trial in a manner which is grossly misleading. The transcript page citations that are included do not support the argumentative assertions of the evidence at trial.
BREIF IN SUPPORT OF MOTION
Under Rule 28, N.C.R. App. P., a statement of facts in a brief is to be full and complete, a non-argumentative summary of all material facts underlying the matter in controversy which are necessary to understand all issues presented for review, and must be supported by references to pages in the transcript of the proceedings. The Statement of Facts in the States Brief in this case violates these requirements in every aspect. It contains naked argument unsupported by reference to transcript pages. When transcript pages are supplied, the States Statement of Facts selects a few pages selectively taken out of a mountain of testimony about an issue of fact to give a far from full and complete statement of the facts. By this selective parsing of an extremely long trial transcript, the States Statement of Facts argues factual claims that are gross misstatements of the evidence, not facts at all.
This Court has warned in a series of opinions that these kinds of violations of the rules governing statements of fact warrant sanctions. As a sanction in this case, Defendant Appellant Brad Cooper asks that the court strike the statement of facts in the States Brief. State v. Cagle, 182 N.C. App. 71, 641 S.E.2d 705 (2007); Sullivan v. Pender County, 196 N.C. App. 726, 676 S.E.2d 69 (2009); In re T.M. 180 N.C. 539, 638 S.E.2d 236 (2006).
The Statement of Facts in the States Brief (pp. 1-2) begins with the argument that Brad Cooper killed his wife in the early morning hours of 12 July 2008,dumped her body a mile and a half from their house and made up a false story that she had gone jogging at
7:00 a.m. and didnt return house. This was the prosecution theory, albeit without any hard evidence. The State goes on to argue that their theory was based on a wealth of evidence, which the State argues consists of attempts to misdirect the police, many lies to the police on critical matters, pieces of physical circumstantial evidence, manipulation of telephones to make it appear that Nancy was still alive and went jogging at 7:00 a.m., and an attempt to hide and then downplay his shocking months-long behavior towards Nancy. All this is without reference to transcript pages that support the theory.
Throughout the rest of the statement of facts, argument continues. References to transcript are provided, but they are consistently a few pages dealing with an issue of fact, selected out of lengthy testimony relating to that same issue of contested fact, giving only the small bit that supports the States theory of prosecution when taken out of context of the totality of the evidence.
To rebut each of the misleading factual arguments made by the State that are based on pulling brief bits of testimony out of context of the whole of the evidence would take more pages that the extended brief length this Court has allowed the parties in this case. Defendant will merely outline here the grossest misstatements of the evidence appearing in the States statement of the facts, the ones that comprise what the State asserts was overwhelming evidence of guilt.
I. Nancys Running Shoes.
The State asserts that the physical evidence included the fact that Nancys running shoes were still in the house. (States Brief at 2) The testimony the State references (Tpp. 3886-3887) was from Detective James Young about events on 12 July when they were looking for something that Nancy wore to be used by the K-9 officer for a scent that his dog might follow. Young asked if there were any running shoes in the house that Nancy wore recently. Brad Cooper pointed out a pair of shoes on a shelf in the laundry room, saying that she wore Saucony running shoes. Young took that pair of shoes to the K-9 officer. Later, (State Brief at 14) the State references a few more pages of Youngs testimony about a discussion of Nancys shoe size when Brad Cooper was questioned one more time on 14 July (3943-3944, 3959)
There was a great deal of testimony about Nancys shoes, including evidence of another pair of Saucony shoes that were not in the house and were never found.
Detective Young testified that when he talked to Brad Cooper about shoes that Nancy wore, Brad said that she wore Sauconys. There were two pair of womens running shoes in a rack in the laundry room, a pair of Sauconys which Brad Cooper described as her new shoes and a pair of ASICs which Brad described as her old shoes. Brad told Young that Nancy had a third pair of running shoes. In his notes, Young wrote third pair of running shoes in quotes, the style used when he was writing an exact quote. (Tpp. 4426-4429)
The investigation into Nancys running shoes did not stop there. Young obtained a complete set of records of Nancys purchases of shoes from Athletes Foot in Cameron Village, which were admitted in evidence as Defense Exhibit 47. Those records showed a purchase of a pair of Saucony Grid Hurricane shoes on 4 September 2006. They were a different color from the Saucony shoes that the police saw on the rack in the laundry room. Jessica Adam gave the police a photograph of Nancy wearing the Saucony shoes purchased in 2006 at a race she was in. Both Young and Detective Daniels testified that
Nancys other pair of Saucony running shoes were not in the house and have never been found. (Tpp. 4426-4429, 4442-4448, 6784-6785)
The implication proffered by the State, that Nancy could not have gone jogging on the morning of 12 July because her running shoes were still in the house, is a gross misstatement of the evidence. The record is clear that Nancy had two pair of Saucony running shoes, the one pair that was in the house and given to the K-9 officer on 12 July, and the second pair that was not in the house and that has never been found.
II. Autopsy Findings.
The State asserts the physical evidence includes the autopsy finding that her stomach contained a piece of onion, which would have cleared her stomach before 6 a.m. had she actually lived that long. (States Brief at 2) This is a gross misstatement of the testimony of Dr. John Butts, the Chief Medical Examiner who did the autopsy.
Dr. Butts gave the following testimony as to what the autopsy findings indicated about the time of death. In the stomach, there was reddish fluid and one small fragment of a vegetable that looked like it might have been a piece of an onion. (Tp. 3190) Asked on direct about the time of death, Dr. Butts was of the opinion that it was consistent with the period of time when she was reported missing, sometime in early morning hours of 12 July. His findings were also consistent with her death having occurred as much as 12 hours before or after that. His opinion was that the remains were consistent with her being dead or dying on or about 12 July. (Tpp. 3192-3193)
Dr. Butts gave the following testimony on cross-examination. The level of decomposition was consistent with her being killed during three to five hours after 7:00 a.m. on 12 July. There was fluid and one small fragment of onion in the stomach. If she had a meal, she had cleared the meal from her stomach. If she had a large meal, it generally takes four to six hours to get it out of her stomach. (Tpp. 3205-3206) There is nothing in the autopsy that would be inconsistent with Nancy leaving her home shortly after 7:00 a.m. on 12 July 2008 and being killed sometime in the next four to five hours. (Tpp. 3213-3214)
The argument proffered by the State in its statement of the facts, that the contents of the stomach at autopsy showed Nancy Cooper was dead before 6 a.m. on 12 July, is a gross misstatement of the evidence.
III. Automating a Phone Call.
The State asserts as fact that Brad Cooper manipulated telephones by automating a telephone call from the house to his cell phone at 6:40 a.m. when he was out in public and Nancy was already dead. (States Brief at 2). In the testimony the State references (Tpp. 5476-5544, 5453-5459, 5573) Paul Giralt, a Cisco employee, testified about ways that it was theoretically possible to automate or instigate a telephone call from a house phone when no one was home. Brad Cooper made two trips to Harris-Teeter in the early morning of 12 July. Phone records showed a 32 second call to his cell phone from the phone in the Cooper residence at 6:40 a.m. Brad said that Nancy called him about some things she wanted him to get at the grocery store. The existence of the phone call caused problems for the prosecution theory that Brad Cooper killed Nancy and dumped her body before his trips to the grocery store. Giralt was asked by the investigating officers whether it was hypothetically possible for a person to set a computer in a home to make a call from the home phone when no one was at home to actually make the call. It was theoretically possible. Giralt testified about how it could be done using a big router that had something called a FXO port attached to it. (Tpp. 5476-5495, 5553-5552)
Giralt was sent photographs that were taken by the police on 12 July of equipment in the Cooper residence. Giralt concluded from the photographs that none of the equipment in the Cooper home was capable of placing a phone call through the home phone line. (Tpp. 5550-5552) The State offered evidence that Brad Cooper had some Cisco equipment in January that could be used to make this type of automated phone call if someone was inclined to do so. There was no evidence of that kind of equipment being in the Cooper home on July 12. Giralt examined the Cisco logs for the router at the request of the Cary police. He found no evidence in the Cisco logs that would indicate an automated phone call was made a 6:40 a.m. The phone call from the Cooper home phone to Brads cell phone at 6:40 a.m. on 12 July was 32 seconds long. It could not have been made by automating a phone call from the home phone line when no one was home, because the automated phone call would automatically terminate at the end of 23 seconds. (Tpp. 5480-5483, 5554-5558, 5565-5566 )
The lead detective, George Daniels, testified that they had only a theory that Brad Cooper automated the telephone call at 6:40 a.m. on 12 July, that the theory was based solely on the fact that it was theoretically possible for a person to do that. They had no evidence that Brad Cooper had done so, i.e. had no log entry from any router, no phone records, no expert opinion that he had, in fact done so. (Tpp. 6674-6679)
The claim made by the State in its Brief that Brad Cooper had, in fact, automated a telephone call from the Cooper house telephone to his cell phone at 6:40 a.m. on 12 July is a gross misstatement of the evidence. This was a theory without a shred of actual evidence that he did so.
IV. Defense Expert Testimony.
When discussing the defense evidence in its statement of the facts, the State argues that the defense presented evidence that the 11 July 2008 Google map searches on his computer were manufactured. (States Brief at 27) This is a gross misstatement of the record. Jay Ward testified for the defense. His testimony was strictly limited. He testified as an expert in network security and vulnerability assessment. He offered testimony about how easily a computer could be tampered with to plant files without leaving a trace. He testified about what kinds of things he looks for when trying to investigate the possibility that a computer network had been tampered with. He gave no testimony about the Google map files found on Brad Coopers computer. The trial court repeatedly and consistently sustained objections to any question that related to Brad Coopers computer, the files found on it, and the data extracted from it by the States experts. He was not permitted to say anything about the validity of the Google map files from Brads computer. (Tpp. 7095-7154, 7162-7260). The States assertion (Brief at 38) that Ward gave substantial evidence that the Google map files on Brad Coopers computer were manufactured is a gross misstatement of the facts. It is argument that is not supported by the references to the trial transcripts appearing in the States Brief.
CONCLUSION
This case involved nine weeks of testimony about a whole host of disputed facts. In place of what is required by the Rules of Appellate procedure, a non-argumentative, full and complete summary of all of the material facts, the States Brief offers an argumentative assertion about the evidence which takes bits of testimony out context of the totality of the material facts. It warrants sanctions. Defendant-Appellant Cooper respectfully requests that the sanction be an order striking the statement of facts in the States brief.
This the 5th day of April, 2013.
/s/ Electonically filed,
Ann B. Petersen
Glover & Petersen, P.A.
ATTORNEY FOR DEFENDANT-APPELLANT
STATE OF NORTH CAROLINA (Plaintiff) V. BRADLEY GRAHAM COOPER (Defendant)
From WAKE Case No. 08 CrS 22922
* * * * * * * * * * * * * * * * * * * *
MOTION STRIKE THE STATEMENT OF FACTS IN STATES BRIEF AS A SANCTION FOR VIOLATING THE RULES RELATING TO STATEMENTS OF FACT And INCORPORATED BRIEF IN SUPPORT OF THE MOTION
* * * * * * * * * * * * * * * * * * * *
Comes now the Defendant-Appellant, by his undersigned appointed counsel, and, pursuant to the provisions of Rules 25, 28 and 37, N.C.R. App. P., respectfully requests that the Court strike the Statement of Facts in the States Brief as a sanction for violating the rules relating to the content of a statement of facts. As shown in more detail in the Brief in Support of this motion below, the States statement of the facts is argumentative and is not a full, complete accurate statement of all material facts. In support of this motion, the Defendant-Appellant shows the following:
1. On May 5, 2011, the defendant was convicted of first degree murder and sentenced to life imprisonment without parole. He appealed
2. On May 17, 2011, undersigned counsel was appointed to represent the defendant on appeal. The defendant was found indigent for appeal purposes and the transcripts were ordered by the clerk on May 5, 2011.
3. This is an extremely long, complicated case and highly publicized. The transcripts are approximately 10,000 pages, very few of which are jury voir dire. The testimony includes a vast array of hotly disputed facts.
4. The State has filed its Brief in this Court. As permitted by the Rules of Appellate Procedure, the State elected to include a statement of facts in its brief.
5. As set out in the incorporated Brief in Support of Motion, below, the statement of facts in the States Brief violates the Rules of Appellate Procedure governing the content of a statement of facts. It is argumentative. It is not a full and complete recitation of the material facts. It selectively pulls out small bits of testimony relating to an issue of fact in dispute at trial in a manner which is grossly misleading. The transcript page citations that are included do not support the argumentative assertions of the evidence at trial.
BREIF IN SUPPORT OF MOTION
Under Rule 28, N.C.R. App. P., a statement of facts in a brief is to be full and complete, a non-argumentative summary of all material facts underlying the matter in controversy which are necessary to understand all issues presented for review, and must be supported by references to pages in the transcript of the proceedings. The Statement of Facts in the States Brief in this case violates these requirements in every aspect. It contains naked argument unsupported by reference to transcript pages. When transcript pages are supplied, the States Statement of Facts selects a few pages selectively taken out of a mountain of testimony about an issue of fact to give a far from full and complete statement of the facts. By this selective parsing of an extremely long trial transcript, the States Statement of Facts argues factual claims that are gross misstatements of the evidence, not facts at all.
This Court has warned in a series of opinions that these kinds of violations of the rules governing statements of fact warrant sanctions. As a sanction in this case, Defendant Appellant Brad Cooper asks that the court strike the statement of facts in the States Brief. State v. Cagle, 182 N.C. App. 71, 641 S.E.2d 705 (2007); Sullivan v. Pender County, 196 N.C. App. 726, 676 S.E.2d 69 (2009); In re T.M. 180 N.C. 539, 638 S.E.2d 236 (2006).
The Statement of Facts in the States Brief (pp. 1-2) begins with the argument that Brad Cooper killed his wife in the early morning hours of 12 July 2008,dumped her body a mile and a half from their house and made up a false story that she had gone jogging at
7:00 a.m. and didnt return house. This was the prosecution theory, albeit without any hard evidence. The State goes on to argue that their theory was based on a wealth of evidence, which the State argues consists of attempts to misdirect the police, many lies to the police on critical matters, pieces of physical circumstantial evidence, manipulation of telephones to make it appear that Nancy was still alive and went jogging at 7:00 a.m., and an attempt to hide and then downplay his shocking months-long behavior towards Nancy. All this is without reference to transcript pages that support the theory.
Throughout the rest of the statement of facts, argument continues. References to transcript are provided, but they are consistently a few pages dealing with an issue of fact, selected out of lengthy testimony relating to that same issue of contested fact, giving only the small bit that supports the States theory of prosecution when taken out of context of the totality of the evidence.
To rebut each of the misleading factual arguments made by the State that are based on pulling brief bits of testimony out of context of the whole of the evidence would take more pages that the extended brief length this Court has allowed the parties in this case. Defendant will merely outline here the grossest misstatements of the evidence appearing in the States statement of the facts, the ones that comprise what the State asserts was overwhelming evidence of guilt.
I. Nancys Running Shoes.
The State asserts that the physical evidence included the fact that Nancys running shoes were still in the house. (States Brief at 2) The testimony the State references (Tpp. 3886-3887) was from Detective James Young about events on 12 July when they were looking for something that Nancy wore to be used by the K-9 officer for a scent that his dog might follow. Young asked if there were any running shoes in the house that Nancy wore recently. Brad Cooper pointed out a pair of shoes on a shelf in the laundry room, saying that she wore Saucony running shoes. Young took that pair of shoes to the K-9 officer. Later, (State Brief at 14) the State references a few more pages of Youngs testimony about a discussion of Nancys shoe size when Brad Cooper was questioned one more time on 14 July (3943-3944, 3959)
There was a great deal of testimony about Nancys shoes, including evidence of another pair of Saucony shoes that were not in the house and were never found.
Detective Young testified that when he talked to Brad Cooper about shoes that Nancy wore, Brad said that she wore Sauconys. There were two pair of womens running shoes in a rack in the laundry room, a pair of Sauconys which Brad Cooper described as her new shoes and a pair of ASICs which Brad described as her old shoes. Brad told Young that Nancy had a third pair of running shoes. In his notes, Young wrote third pair of running shoes in quotes, the style used when he was writing an exact quote. (Tpp. 4426-4429)
The investigation into Nancys running shoes did not stop there. Young obtained a complete set of records of Nancys purchases of shoes from Athletes Foot in Cameron Village, which were admitted in evidence as Defense Exhibit 47. Those records showed a purchase of a pair of Saucony Grid Hurricane shoes on 4 September 2006. They were a different color from the Saucony shoes that the police saw on the rack in the laundry room. Jessica Adam gave the police a photograph of Nancy wearing the Saucony shoes purchased in 2006 at a race she was in. Both Young and Detective Daniels testified that
Nancys other pair of Saucony running shoes were not in the house and have never been found. (Tpp. 4426-4429, 4442-4448, 6784-6785)
The implication proffered by the State, that Nancy could not have gone jogging on the morning of 12 July because her running shoes were still in the house, is a gross misstatement of the evidence. The record is clear that Nancy had two pair of Saucony running shoes, the one pair that was in the house and given to the K-9 officer on 12 July, and the second pair that was not in the house and that has never been found.
II. Autopsy Findings.
The State asserts the physical evidence includes the autopsy finding that her stomach contained a piece of onion, which would have cleared her stomach before 6 a.m. had she actually lived that long. (States Brief at 2) This is a gross misstatement of the testimony of Dr. John Butts, the Chief Medical Examiner who did the autopsy.
Dr. Butts gave the following testimony as to what the autopsy findings indicated about the time of death. In the stomach, there was reddish fluid and one small fragment of a vegetable that looked like it might have been a piece of an onion. (Tp. 3190) Asked on direct about the time of death, Dr. Butts was of the opinion that it was consistent with the period of time when she was reported missing, sometime in early morning hours of 12 July. His findings were also consistent with her death having occurred as much as 12 hours before or after that. His opinion was that the remains were consistent with her being dead or dying on or about 12 July. (Tpp. 3192-3193)
Dr. Butts gave the following testimony on cross-examination. The level of decomposition was consistent with her being killed during three to five hours after 7:00 a.m. on 12 July. There was fluid and one small fragment of onion in the stomach. If she had a meal, she had cleared the meal from her stomach. If she had a large meal, it generally takes four to six hours to get it out of her stomach. (Tpp. 3205-3206) There is nothing in the autopsy that would be inconsistent with Nancy leaving her home shortly after 7:00 a.m. on 12 July 2008 and being killed sometime in the next four to five hours. (Tpp. 3213-3214)
The argument proffered by the State in its statement of the facts, that the contents of the stomach at autopsy showed Nancy Cooper was dead before 6 a.m. on 12 July, is a gross misstatement of the evidence.
III. Automating a Phone Call.
The State asserts as fact that Brad Cooper manipulated telephones by automating a telephone call from the house to his cell phone at 6:40 a.m. when he was out in public and Nancy was already dead. (States Brief at 2). In the testimony the State references (Tpp. 5476-5544, 5453-5459, 5573) Paul Giralt, a Cisco employee, testified about ways that it was theoretically possible to automate or instigate a telephone call from a house phone when no one was home. Brad Cooper made two trips to Harris-Teeter in the early morning of 12 July. Phone records showed a 32 second call to his cell phone from the phone in the Cooper residence at 6:40 a.m. Brad said that Nancy called him about some things she wanted him to get at the grocery store. The existence of the phone call caused problems for the prosecution theory that Brad Cooper killed Nancy and dumped her body before his trips to the grocery store. Giralt was asked by the investigating officers whether it was hypothetically possible for a person to set a computer in a home to make a call from the home phone when no one was at home to actually make the call. It was theoretically possible. Giralt testified about how it could be done using a big router that had something called a FXO port attached to it. (Tpp. 5476-5495, 5553-5552)
Giralt was sent photographs that were taken by the police on 12 July of equipment in the Cooper residence. Giralt concluded from the photographs that none of the equipment in the Cooper home was capable of placing a phone call through the home phone line. (Tpp. 5550-5552) The State offered evidence that Brad Cooper had some Cisco equipment in January that could be used to make this type of automated phone call if someone was inclined to do so. There was no evidence of that kind of equipment being in the Cooper home on July 12. Giralt examined the Cisco logs for the router at the request of the Cary police. He found no evidence in the Cisco logs that would indicate an automated phone call was made a 6:40 a.m. The phone call from the Cooper home phone to Brads cell phone at 6:40 a.m. on 12 July was 32 seconds long. It could not have been made by automating a phone call from the home phone line when no one was home, because the automated phone call would automatically terminate at the end of 23 seconds. (Tpp. 5480-5483, 5554-5558, 5565-5566 )
The lead detective, George Daniels, testified that they had only a theory that Brad Cooper automated the telephone call at 6:40 a.m. on 12 July, that the theory was based solely on the fact that it was theoretically possible for a person to do that. They had no evidence that Brad Cooper had done so, i.e. had no log entry from any router, no phone records, no expert opinion that he had, in fact done so. (Tpp. 6674-6679)
The claim made by the State in its Brief that Brad Cooper had, in fact, automated a telephone call from the Cooper house telephone to his cell phone at 6:40 a.m. on 12 July is a gross misstatement of the evidence. This was a theory without a shred of actual evidence that he did so.
IV. Defense Expert Testimony.
When discussing the defense evidence in its statement of the facts, the State argues that the defense presented evidence that the 11 July 2008 Google map searches on his computer were manufactured. (States Brief at 27) This is a gross misstatement of the record. Jay Ward testified for the defense. His testimony was strictly limited. He testified as an expert in network security and vulnerability assessment. He offered testimony about how easily a computer could be tampered with to plant files without leaving a trace. He testified about what kinds of things he looks for when trying to investigate the possibility that a computer network had been tampered with. He gave no testimony about the Google map files found on Brad Coopers computer. The trial court repeatedly and consistently sustained objections to any question that related to Brad Coopers computer, the files found on it, and the data extracted from it by the States experts. He was not permitted to say anything about the validity of the Google map files from Brads computer. (Tpp. 7095-7154, 7162-7260). The States assertion (Brief at 38) that Ward gave substantial evidence that the Google map files on Brad Coopers computer were manufactured is a gross misstatement of the facts. It is argument that is not supported by the references to the trial transcripts appearing in the States Brief.
CONCLUSION
This case involved nine weeks of testimony about a whole host of disputed facts. In place of what is required by the Rules of Appellate procedure, a non-argumentative, full and complete summary of all of the material facts, the States Brief offers an argumentative assertion about the evidence which takes bits of testimony out context of the totality of the material facts. It warrants sanctions. Defendant-Appellant Cooper respectfully requests that the sanction be an order striking the statement of facts in the States brief.
This the 5th day of April, 2013.
/s/ Electonically filed,
Ann B. Petersen
Glover & Petersen, P.A.
ATTORNEY FOR DEFENDANT-APPELLANT
4/8/2013
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STATES RESPONSE TO DEFENDANTS MOTION TO STRIKE THE STATEMENT OF FACTS IN THE STATES BRIEF
***************************************
TO: THE HONORABLE CHIEF JUDGE AND ASSOCIATE JUDGES OF THE NORTH CAROLINA COURT OF APPEALS
NOW COMES the State of North Carolina, by and through Roy Cooper, Attorney General, and Assistant Attorneys General Daniel P. OBrien and LaToya B. Powell, responding to defendants motion to strike the statement of facts in the States Brief.
Defendants motion to strike should be dismissed or denied. Oral argument is scheduled for Tuesday, 9 April 2013. The States Brief has been filed for two months; it was filed on 8 February 2013. The undersigned are currently preparing for oral argument; they received Defendants Motion to Strike at 2:30 p.m. on the Friday before the Tuesday of the oral argument.
The State stands by its Statement of Facts as accurately representative of the prosecutions theory of the case and the evidence presented to the jury at trial. The first paragraph of the Statement of the Facts is just a summary outline of the States evidence and for that reason contains no page references; all the detailed transcript page references are in the body of the Statement of Facts. The State does admit that a heading, The States Evidence was inadvertently omitted and should have been placed directly under the heading Statement of the Facts on page 1 of the Brief. Hopefully, this did not cause confusion. A heading indicating Summary on the first paragraph would also have
helped.
Defendant is correct that this is an extremely long and complicated case. Eight thousand pages of evidence were required to be summarized in a very brief space, and it had to be done conceptually and in a way that told the story of the trial; there was no space for wordiness or for detailing the testimony of each witness in turn. The State tried to be extremely detailed and rigorously accurate about including the supporting transcript page references after each phrase or sentence or idea in the Statement of Facts.
The cases that defendant cites in his Motion to Strike are all distinguishable. In State v. Cagle, 182 N.C. App. 71, 641 S.E.2d 705 (2007), the defendants brief contained a Statement of Facts that was three paragraphs long. The first paragraph consisted of two sentences asserting wrongful conviction and the need for the conviction to be reversed; the last paragraph was similar. The middle paragraph contained what appeared to be facts, but no transcript page references. There was no attempt to present the facts presented by both parties to the case. Id. at 73-74, 641 S.E.2d at 707-08. The States Statement of Facts in this case, by contrast, is full and complete under Rule 28; it is 27 pages long (despite the fact that it easily could have been 40 or 50). It contains no legal arguments; it contains transcript page references. It presents the important evidence of both sides.
Equally contrasting is the case of In re T.M., 180 N.C. App. 539, 638 S.E.2d 236 (2006), in which Respondents statement of facts, just over a page long, contains almost entirely naked argument and includes no citations at all to the record. Id. at 545, 638 S.E.2d at 238. Further, respondents counsel had been admonished by the Court for previous Rule violations, and asserted on appeal arguments of a frivolous nature. Not so here.
In Sullivan v. Pender County, 196 N.C. App. 726, 676 S.E.2d 69 (2009), the plaintiff committed numerous Rules violations, including legal and jurisdictional argument in the Statement of Facts; facts unsupported by the record and facts not relevant to the legal issues; an Argument section untethered from assignments of error or questions presented; argument consisting largely of personal opinions; interpretations of Bible verses; views on world and U.S. history; personal background; and lack of citations to
legal authority.
While the State would like to respond to, and is confident that it would roundly refute, what defendant calls the grossest misstatements of the evidence in the States Statement of the Facts (see, e.g., T pp. 4441-43, 7165, 7186-97, 7211, 7241-44, 7251-52), such a course might not be appropriate since the State has been allowed only 47 pages for its Brief. The State views defendants Motion to Strike as an improper attempt to shore up weaknesses in his Brief and, essentially, obviate the Courts order limiting his Brief to 47 pages. Defendant in his Motion to Strike presents what is essentially either jury argument or argument that is more appropriate for the 9 April oral argument before this Court. To the extent that pages 4-9 of defendants Motion to Strike constitute an improper extension of the length of defendants brief, the State would ask, and leave it to the Courts discretion, that they be stricken.
WHEREFORE, the State respectfully requests that defendants Motion to Strike the Statement of the Facts in the States Brief be dismissed or denied.
Respectfully submitted this the 8th day of April, 2013.
ROY COOPER
ATTORNEY GENERAL
Electronically Submitted
Daniel P. OBrien
Assistant Attorney General
North Carolina Department of Justice
***************************************
STATES RESPONSE TO DEFENDANTS MOTION TO STRIKE THE STATEMENT OF FACTS IN THE STATES BRIEF
***************************************
TO: THE HONORABLE CHIEF JUDGE AND ASSOCIATE JUDGES OF THE NORTH CAROLINA COURT OF APPEALS
NOW COMES the State of North Carolina, by and through Roy Cooper, Attorney General, and Assistant Attorneys General Daniel P. OBrien and LaToya B. Powell, responding to defendants motion to strike the statement of facts in the States Brief.
Defendants motion to strike should be dismissed or denied. Oral argument is scheduled for Tuesday, 9 April 2013. The States Brief has been filed for two months; it was filed on 8 February 2013. The undersigned are currently preparing for oral argument; they received Defendants Motion to Strike at 2:30 p.m. on the Friday before the Tuesday of the oral argument.
The State stands by its Statement of Facts as accurately representative of the prosecutions theory of the case and the evidence presented to the jury at trial. The first paragraph of the Statement of the Facts is just a summary outline of the States evidence and for that reason contains no page references; all the detailed transcript page references are in the body of the Statement of Facts. The State does admit that a heading, The States Evidence was inadvertently omitted and should have been placed directly under the heading Statement of the Facts on page 1 of the Brief. Hopefully, this did not cause confusion. A heading indicating Summary on the first paragraph would also have
helped.
Defendant is correct that this is an extremely long and complicated case. Eight thousand pages of evidence were required to be summarized in a very brief space, and it had to be done conceptually and in a way that told the story of the trial; there was no space for wordiness or for detailing the testimony of each witness in turn. The State tried to be extremely detailed and rigorously accurate about including the supporting transcript page references after each phrase or sentence or idea in the Statement of Facts.
The cases that defendant cites in his Motion to Strike are all distinguishable. In State v. Cagle, 182 N.C. App. 71, 641 S.E.2d 705 (2007), the defendants brief contained a Statement of Facts that was three paragraphs long. The first paragraph consisted of two sentences asserting wrongful conviction and the need for the conviction to be reversed; the last paragraph was similar. The middle paragraph contained what appeared to be facts, but no transcript page references. There was no attempt to present the facts presented by both parties to the case. Id. at 73-74, 641 S.E.2d at 707-08. The States Statement of Facts in this case, by contrast, is full and complete under Rule 28; it is 27 pages long (despite the fact that it easily could have been 40 or 50). It contains no legal arguments; it contains transcript page references. It presents the important evidence of both sides.
Equally contrasting is the case of In re T.M., 180 N.C. App. 539, 638 S.E.2d 236 (2006), in which Respondents statement of facts, just over a page long, contains almost entirely naked argument and includes no citations at all to the record. Id. at 545, 638 S.E.2d at 238. Further, respondents counsel had been admonished by the Court for previous Rule violations, and asserted on appeal arguments of a frivolous nature. Not so here.
In Sullivan v. Pender County, 196 N.C. App. 726, 676 S.E.2d 69 (2009), the plaintiff committed numerous Rules violations, including legal and jurisdictional argument in the Statement of Facts; facts unsupported by the record and facts not relevant to the legal issues; an Argument section untethered from assignments of error or questions presented; argument consisting largely of personal opinions; interpretations of Bible verses; views on world and U.S. history; personal background; and lack of citations to
legal authority.
While the State would like to respond to, and is confident that it would roundly refute, what defendant calls the grossest misstatements of the evidence in the States Statement of the Facts (see, e.g., T pp. 4441-43, 7165, 7186-97, 7211, 7241-44, 7251-52), such a course might not be appropriate since the State has been allowed only 47 pages for its Brief. The State views defendants Motion to Strike as an improper attempt to shore up weaknesses in his Brief and, essentially, obviate the Courts order limiting his Brief to 47 pages. Defendant in his Motion to Strike presents what is essentially either jury argument or argument that is more appropriate for the 9 April oral argument before this Court. To the extent that pages 4-9 of defendants Motion to Strike constitute an improper extension of the length of defendants brief, the State would ask, and leave it to the Courts discretion, that they be stricken.
WHEREFORE, the State respectfully requests that defendants Motion to Strike the Statement of the Facts in the States Brief be dismissed or denied.
Respectfully submitted this the 8th day of April, 2013.
ROY COOPER
ATTORNEY GENERAL
Electronically Submitted
Daniel P. OBrien
Assistant Attorney General
North Carolina Department of Justice
Here's a link to the live stream of the hearing today: http://www.wral.com/news/video/12318661/#/vid12318661
Madeleine74
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The live stream is crappy (tech difficulties).
fran
Former Member
NC court reviews man's guilt in wife's 2008 death
RALEIGH, N.C. An appeals court began considering Tuesday whether a suburban Raleigh man convicted of strangling his estranged wife was able to mount a full defense or needs a new trial because the judge overlooked a defense witness's experience and just considered his lack of certification.
full article at link ................ http://www.wral.com/nc-court-reviews-man-s-guilt-in-wife-s-2008-death/12319608/
RALEIGH, N.C. An appeals court began considering Tuesday whether a suburban Raleigh man convicted of strangling his estranged wife was able to mount a full defense or needs a new trial because the judge overlooked a defense witness's experience and just considered his lack of certification.
full article at link ................ http://www.wral.com/nc-court-reviews-man-s-guilt-in-wife-s-2008-death/12319608/
calgary123
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Having watched this, and having forgotten a lot of the Jay Ward testimony, including the voir dire testimony, I find it interesting the appeals court is focusing on whether Jay Ward's lack of "forensic" qualifications excludes him from testifying as an expert. I agree with the appeal court that the word "forensic" isn't particular helpful to determine qualifications.
That being said, Jay Ward's expertise was network security, not in how data should appear on a hard drive for any particular operating system.
In any event, Jay Ward was allowed to testify as a network security expert, was he not?
I found both appellate counsel's arguments poor-- in that they both missed their best points, but that's just my opinion. I found it interesting that the appeal panel focused a lot on the threshold test to qualify an expert under the NC rules.
I also found it interesting that Brad's appellate counsel chose to not throw Kurtz under the bus. And that Kurtz was in the front row watching.
This appeal is not really about whether Brad did it, which I'm confident he did, but rather, on the integrity of the process. And that's fine too. Brad may very well obtain a new trial in this.
Looking back, I expect the state, knowing about the technical side better now than they seem to before, would have a stronger case the second time around.
That being said, Jay Ward's expertise was network security, not in how data should appear on a hard drive for any particular operating system.
In any event, Jay Ward was allowed to testify as a network security expert, was he not?
I found both appellate counsel's arguments poor-- in that they both missed their best points, but that's just my opinion. I found it interesting that the appeal panel focused a lot on the threshold test to qualify an expert under the NC rules.
I also found it interesting that Brad's appellate counsel chose to not throw Kurtz under the bus. And that Kurtz was in the front row watching.
This appeal is not really about whether Brad did it, which I'm confident he did, but rather, on the integrity of the process. And that's fine too. Brad may very well obtain a new trial in this.
Looking back, I expect the state, knowing about the technical side better now than they seem to before, would have a stronger case the second time around.
I think a lot of the answers that Ann gave in her appeal oral arguments were not true.
She claims that Jay did not testify about the timestamps and that the timestamps were not argued as evidence of tampering in closing arguments.
At about 49:00 minutes in closing arguments video http://www.wral.com/specialreports/nancycooper/video/9541522/#/vid9541522 Kurtz shows slides from Jay Ward's report arguing that the timestamps indicate tampering.
At about 3:30 minutes Jay Ward testifies about timestamps.
http://www.wral.com/specialreports/nancycooper/video/9474261/#/vid9474261
Kurtz got the tampering theory in front of the jury, he just added "related to network security" to the end of each of his forensic related questions and the judge allowed it.
She claims that Jay did not testify about the timestamps and that the timestamps were not argued as evidence of tampering in closing arguments.
At about 49:00 minutes in closing arguments video http://www.wral.com/specialreports/nancycooper/video/9541522/#/vid9541522 Kurtz shows slides from Jay Ward's report arguing that the timestamps indicate tampering.
At about 3:30 minutes Jay Ward testifies about timestamps.
http://www.wral.com/specialreports/nancycooper/video/9474261/#/vid9474261
Kurtz got the tampering theory in front of the jury, he just added "related to network security" to the end of each of his forensic related questions and the judge allowed it.
Madeleine74
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Hi Calgary and MacD!
I too was very underwhelmed by the arguments of both sides.
And the questions asked by the appellate judges also had me scratching my head. Are they trying to say THEY don't know what qualifies someone to be considered a forensic expert and they have to ask this question of the appeal attorneys to gain an understanding? If the appellate judges don't know the answer to what constitutes a valid expert then why are they at the appellate level? And if they don't know the answer and this is a discretionary decision at the trial level, then how can they determine if the trial judge applied the rule correctly if they themselves don't know what it means? It seemed circular in logic to me. The buck stops with them (the appellate). They should know the answers.
The appellate judges reminded me of a meeting I was in once with a CEO of this small co I once worked for. And the CEO was asking WHY they were in a certain line of business in which a new product had just launched. I remember thinking to myself, "you've spent $2.5M on this product line so far, just released your first product, and you're now asking WHY you're in that business? Dude, you're the CEO. If you don't know....Houston, we have a problem."
I too was very underwhelmed by the arguments of both sides.
And the questions asked by the appellate judges also had me scratching my head. Are they trying to say THEY don't know what qualifies someone to be considered a forensic expert and they have to ask this question of the appeal attorneys to gain an understanding? If the appellate judges don't know the answer to what constitutes a valid expert then why are they at the appellate level? And if they don't know the answer and this is a discretionary decision at the trial level, then how can they determine if the trial judge applied the rule correctly if they themselves don't know what it means? It seemed circular in logic to me. The buck stops with them (the appellate). They should know the answers.
The appellate judges reminded me of a meeting I was in once with a CEO of this small co I once worked for. And the CEO was asking WHY they were in a certain line of business in which a new product had just launched. I remember thinking to myself, "you've spent $2.5M on this product line so far, just released your first product, and you're now asking WHY you're in that business? Dude, you're the CEO. If you don't know....Houston, we have a problem."
Here is what this appeal will come down to:
1) Defense witnesses re: tampered files, expert classification.
The reason the appeals judges pestered the State about this is because there is precedent. I expect the appeals court to rule that Gessner erred in disallowing JW (and GM in that) to testify in this capacity. He did allow an airport cop looking at his 3rd computer to testify in this regard for the State
2) Would the purported tampering testimony (disallowed) have affected the verdict?
Of course, it would have. The jurors said as much. To compound this, Boz insisted in the State's closing argument that (paraphrasing here) "not one witness from the defense testified that these files were tampered with". Dumb...because this reinforces the concept that "untampered" map files were crucial to the State's case. If Boz had not said that, I'd give this appeal a 50/50 chance at a new trial. As its stands i would be surprised if THIS appeals court (based on past rulings) does NOT grant BC a new trial due to Gessner's error in not allowing testimony.
I don't think the FBI issue with "national security" will even need to come into play.
my prediction:
*State emphasis in closing i.e. "no defense witness told you there was tampering"
*Gessner (in error) disallowing above testimony
=reversal, new trial and Gessner has Boz, in part, to thank for that.
BC guilty or not, it is what it is.
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