The North Carolina Court of Appeals recently ordered a new trial for Brad Cooper, who was convicted in May 2011in the 2008 death of his wife in Cary, North Carolina. The decision came after a three-judge panel heard oral arguments in April 2013, on whether defense attorneys were prevented from making their best case before Cooper was convicted of first-degree murder.
Cooper is currently serving a life sentence for his conviction of first-degree murder of his wife Nancy Cooper. Nancy disappeared on July 12, 2008, after Brad claimed she went for a jog and never returned. Nancy’s body was later found in a drainage ditch in a cul-de-sac of a subdivision close to their home. The prosecution’s theory was solely based on motive and opportunity, contending that Brad killed Nancy because she planned to divorce him and move back to Canada with their two daughters. More than 100 witnesses testified during Brad Cooper’s ten-week trial, which is the longest non-capital murder case to be tried in Wake County.
Computer experts for the defense could not testify about the evidence taken from Cooper’s computer.
The prosecution’s case was based in large part on circumstantial evidence with no direct evidence linking Cooper to the murder. Jurors said after their decision in 2011 that prosecutors won because of computer evidence that defense lawyers had tried to keep out of the proceedings. Last year, Cooper’s defense lawyers filed an appeal, claiming the trial judge wrongly excluded two witnesses who would have testified that someone could have remotely tampered with Cooper’s computer, planting a Google Map onto the computer showing where Nancy’s body was found. From the onset of the investigation, there was no physical evidence linking Cooper to Nancy’s death. The crucial “sole physical evidence” that implicated Cooper was the Google Map search. The Court of Appeals noted in its recent ruling that “[a]bsent this evidence, the evidence connecting Defendant to this crime was primarily potential motive, opportunity, and testimony of suspicious behavior.”
Judge Paul Gessner ruled during the trial that computer experts for the defense could not testify about the evidence taken from Cooper’s computer due to issues of national security. Judge Gessner determined that national security was implicated because an FBI agent had helped police examine the information. In order to determine if the Google Map had been planted on Cooper’s computer, the FBI conducted various simulations and examinations of digital data in an effort to recreate the information obtained from the computer.
Defense attorneys Howard Kurtz and Robert Trenkle wanted to explore information about the search techniques used, not the search results themselves. In determining that the trial court erred in shutting down the defense’s line of questioning, Judge Linda M. McGee, writing the opinion for the Court, stated that the court should have ascertained how, or if, “national security or some other legitimate interest outweighed the probative value of this information” to Cooper. Judge McGee instructed the trial court on remand to “determine with a reasonable degree of specificity” how national security or another interest would be compromised by discovery of data or materials.
Both Masucci and Ward independently concluded that the Google Map files had “been placed on the hard drive [and] could not have been the result of normal internet activity.”
At the trial court level, Judge Gessner also ruled against the defense’s attempt to classify two witnesses as computer forensics experts. State witnesses testified during the initial trial that the Google search was performed the day before Nancy Cooper disappeared; however, the defense argued that someone previously tampered with the computer. Jay Ward, a network security professional, was found by the trial court to not be qualified as a forensics computer analyst, even though he had worked for more than fifteen years in the computer field, preventing him from testifying. Once Ward’s testimony was excluded on April 19, 2011, the defense needed to quickly find another expert witness when court sessions resumed just two days later. The expert witness for the defense replacing Ward, Giovanni Masucci, was also not allowed to testify about the files, most importantly because he was not on the potential witness list required to be disclosed to the other side prior to trial.
Both Masucci and Ward independently concluded that the Google Map files had “been placed on the hard drive [and] could not have been the result of normal internet activity.” The trial court also ruled that, pursuant to North Carolina Rule of Evidence 403, allowing Masucci to testify would prejudice the State, and that this prejudice would substantially outweigh any probative value of Masucci’s testimony. This ruling effectively prevented the defense from calling any witness to testify that the actual Google Map files linking Cooper to the drainage ditch where Ms. Cooper’s body was found were corrupt or had been tampered with in any way. The Court of Appeals stated:
The trial court did err in limiting (Jay) Ward’s testimony in such a manner that prevented him from testifying concerning data retrieved from the laptop, including the Google Maps files. . . The Google Map files recovered from the defendant’s laptop were perhaps the most important pieces of evidence admitted in this trial . . .We hold that the trial court abused its discretion in excluding Ward from testifying, relying on the state’s own evidence, to his opinion that the Google Maps files recovered from the defendant’s laptop had been tampered with.
The Court of Appeals also indicated that the State did not seriously challenge Ward’s ability to understand and interpret the actual data retrieved, and that the voir dire testimony indicated that Ward examined the exact kinds of files in question—temporary internet files—on a regular basis throughout his career.
The Attorney General’s office has asked the North Carolina Supreme Court to review the Court of Appeals decision.
Because the Court of Appeals’ decision was unanimous, the North Carolina Attorney General’s office was required to petition the state Supreme Court to review the Court of Appeals’ opinion. Otherwise the case would have indeed ended up back in Superior Court for a re-trial. The Attorney General’s office filed its petition for discretionary review on September 20, 2013, and will await a decision from the state’s highest court as to whether it will deny or allow its appeal.
[Editor’s Note: This article will be updated when the Supreme Court issues its ruling on the State’s petition for discretionary review.]