A Google Map search is seemingly the only piece of evidence tying former Cisco engineer Brad Cooper to the the murder of his wife, Nancy. According to his testimony, Cooper was at home with the couple's two daughters at the time his wife was strangled in a nearby park.
Nancy Cooper disappeared on July 12, 2008. That same day, Brad Cooper was questioned by local law enforcement. During the next couple of days, he consented to a search of his house and vehicle and turned over a pair of his wife's running shoes for dogs to track her scent. On July 14th, a body was discovered. This was confirmed to be Nancy Cooper the next day. Brad Cooper turned over the house to investigators that same day, moving out to "preserve" the house itself as evidence. He left behind his computer, which was still connected to the internet. This stayed on for 27 hours before investigators removed it.
Here's where it gets interesting. (An admittedly callous way to look at a situation where one person is dead, one is headed to jail and two kids are effectively parentless…)
The most damning evidence gathered by investigators (working with the FBI) was a Google search showing the exact spot where Nancy Cooper's body was discovered, supposedly performed by Brad Cooper the day before she was killed. This being the only evidence is a fact, rather than conjecture. It's acknowledged in the appeals court's decision which granted Cooper a new trial. [pdf link]
Prosecutors pressed hard with this discovery, coupling it with the fact that Cooper and his wife were observed arguing at a party the night before she vanished. The real story about this supposed search may never come out. Cooper pled guilty to reduced charges earlier this week, after being granted a new trial on appeal. Perhaps Cooper actually did murder his wife, but the key evidence being used against him was severely questionable, enough so that he was awarded another chance to fight the charge.
The 56-page opinion granting him a new trial details the previous court's unconstitutional "abuses," which led to a guilty verdict.
Cooper's defense attacked the supposedly damning search, alleging that it had been planted on the computer by investigators. Their first witness could likely have offered testimony indicating the search had been planted but the State called into question his expertise as a forensic expert and his testimony was prohibited by the court from covering this topic.
Cooper's defense tried to bring in another witness, one more specifically-trained to testify on the specifics the court was demanding. This last-minute replacement, who had reached the same conclusion as the previous expert (that the search had "been placed on the hard drive [and] could not have been the result of normal internet activity"), but was prevented from doing so when the State objected to this "violation" of discovery rules (i.e., witness and testimony were not presented to the prosecution before the trial began).
The appeals court disagreed with the previous court's dismissal of the first expert witness. It argued that this witness was specifically trained to discover computer tampering, something a planted search result would fall under.
The Google Map files recovered from 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 Map files recovered from Defendant's laptop had been tampered with.
We hold, whether the error was constitutional or not, that erroneously preventing Defendant from presenting expert testimony, challenging arguably the strongest piece of the State's evidence, constituted reversible error and requires a new trial…
The appeals court also found that excluding the second witness because of discovery violations was also unconstitutional, noting that using procedural issues to deny the defendant a chance to defend against the single, most important piece of evidence is a deprivation of due process.
In light of the lack of willful misconduct on the part of Defendant, the rational reason presented for failing to inform the State before trial that Defendant would be calling [the new witness], the role of the State in having this situation arise after the trial had commenced, the fundamental nature of the rights involved, the importance to the defense of the testimony excluded, and the minimal prejudice to the State had the trial court imposed a lesser sanction – such as continuance or recess, we hold that imposing the harsh sanction of excluding Masucci from testifying constituted an abuse of discretion.
The third key issue leading to Cooper being awarded the new trial is the most interesting -- a motion made to limit discovery with assistance from the FBI. Cooper's team tried to get the State to turn over information related to the means and methods used during its forensic search of Cooper's computer and found itself being denied on "national security" grounds.
The State filed a motion in opposition, arguing that there exists "a law enforcement sensitive qualified evidentiary privilege" which should act to prevent discovery of these items, "because such disclosure could lead to the development of countermeasures to FBI investigative techniques. Such countermeasures could defeat law enforcement's ability to obtain forensic data in criminal cases." The State also argues that this information was protected as "work product."
The trial court agreed.
The trial court found as fact "[t]hat the FBI's Standard Operating Procedures and policies are the same techniques and tools that are used in counterterrorism and counterintelligence investigations[.]" The trial court concluded that "under the provisions of N.C. Gen. Stat. §15A-903, patterned after Federal Rule of Criminal Procedure 16, the disclosure of the information sought by... Defendant would be contrary to the public interest in the effective functioning of law enforcement[,]" and that "under the provisions of N.C. Gen. Stat. § 15A-908[,]" disclosure of the information would result in "substantial risk" of harm to "any person, including the citizens of this State, of physical harm."
As the appeals court pointed out, there was no reason to completely deny discovery. The documentation could have been reviewed in camera
for any potential national security issues, or allowed certain redactions to be made. It also pointed out that even the FBI's stated national security concerns don't necessarily preclude discovery.
Even in the face of a compelling State interest in keeping records confidential, due process might compel discovery, depending on how material the records are to a defendant's defense.
In this case -- with the "sole piece of evidence" being a questionable Google Maps search -- discovery was extremely material and possibly exculpatory. But the trial court wouldn't even allow the defense to ask whether revealing the forensic method used to "recreate" the map search would have national security implications.
MR. KURTZ: Well, Judge, there is potentially a piece of information that exists on Mr. Cooper's computer that could say definitely that this material was planted, absolutely definitive. I may be wrong. Special Agent Johnson's testing may indeed be that it all has the exact same millisecond all the way across. I don't think I'm wrong. Now, one way or the other, whether it's having a -- a test done on a Vista machine now and seeing what it -- what it actually shows or giving us access to the original test data, which I don't believe has any national security ramifications since it deals with a Google Map test. One way or the other, we should be entitled to this information as it could be tremendously exculpatory.
THE COURT: Upon reconsidering this issue about this in-court test, pursuant to Rule 53-403, I'm going to sustain the objection and exclude any testing in Court because of the differences in the equipment and the statements made by this witness that this is not the appropriate place to do it. We need to bring the jury back in. And regarding the national security issue, that is a matter that we have already ruled on. It is something I have already dealt with.
MR. KURTZ: But, Your Honor, there is a witness on the stand that can answer specifically whether this is an issue of national security. And I'm not even going to be allowed to ask that question?
THE COURT: I believe I've already determined, because of the rules of the -- and the discovery process that you are not entitled to get those things.
MR. KURTZ: So my understanding is, the -- the rules and the discovery process, we're hiding behind national security on an issue where we could get a clear answer from a witness that this is not in fact a national security issue. And we're talking about a piece of information that could be exculpatory to Mr. Cooper.
Further on, Cooper's defense presses the issue further, veering into exasperated sarcasm, only to be shut down again.
THE COURT: It's the methodology that they used, I think, that falls under the security issue, but –
MR. KURTZ: But if I could ask Special Agent Johnson if he has any national security concerns related to that methodology, we might be able to determine that this one particular test is a legitimate one to be disclosed, that it will not actually disclose the missile codes.
THE COURT: The objection is sustained. I'm not going to allow further questioning in this line or any in-court testing of that computer.
This shut-down of discovery was the third factor prompting the decision to grant Cooper a new trial. Not that it matters. As stated earlier, Cooper has opted to plead guilty, perhaps because the lighter sentence could see him freed in another six years or so, as well as possibly give him the chance to be visited by his family members. It may also be that his new trial was being handled by a public defender
who wasn't familiar with the details, rather than his previous legal team. There are a lot of factors to weigh, and even innocent people have been known to cop a plea rather than keep on fighting. It's been more than six years since Brad Cooper was arrested. He may spend less time in jail than he has fighting these charges.
None of the above is meant to imply that Cooper is definitely innocent, but the key piece of evidence is very questionable. Even without the FBI's "national security" intercession, the State has been very reluctant to turn over any information about its examination of Cooper's computer. An anonymous blogger who has been tracking this case notes that those who examined the computer made two different statements
about the presence of a "cookie" verifying the Google Maps search.
Cooper's computer contained cookies for every day except
the day the search was to alleged to have occurred. The forensic examination of the computer turned up no evidence of the cookie being deleted, as testified by the FBI's Agent Johnson. It simply wasn't there. The FBI could have subpoenaed Google for the information regarding this search but never did, even though it requested other information from the search giant.
Agent Chappell, on the other hand, offered up two different stories in court documents. In the report stating that the FBI had found no evidence that Cooper's computer had been tampered with, he says that "we have an index.history.dat file the week of 7/11 that corroborates the visit to maps.google.com and a cookie for the visit."
But in his testimony, he states the opposite. Chappell was unable to find the cookie corroborating the visit in "allocated or recovered deleted." In fact, Chappell could find "nothing from this side."
, which states that information is only retained for 18 months.
There's more. According to the defense's examination of the hard drive, dozens of files were altered during its stay with local law enforcement
. A police officer charged with recovering information from Nancy Cooper's Blackberry destroyed it instead
, possibly inadvertently. This happened nine days after the preservation order in 2008. The defense wasn't informed of this fact until shortly before the trial began in 2011.
But in the middle of it all is the FBI. While the FBI may not have tampered with Cooper's computer, the simple fact is that any law enforcement agency can ask for the FBI's help in matters like this and use the feds' "national security
" shield to withhold certain information from the defense. The appeals court chastised the trial court for indulging the FBI's secrecy, but many, many courts will swiftly defer, even if it means the withholding of possibly exculpatory evidence. That's the very troubling side effect of the FBI's dalliance in national security
, something it has focused more and more of its efforts on over the past several years. It can assist law enforcement, like it always has, and use its "higher calling" to shroud itself and those it helps in secrecy. Permalink
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