State responds to Brad Cooper appeal
Posted February 28, 2013
Updated April 8, 2013
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.
In a 48-page brief filed this month with the North Carolina Court of Appeals, the state Attorney General's Office said the trial court did not abuse its discretion when it came to three rulings regarding testimony about a laptop computer on which investigators found evidence they say linked Brad Cooper to the July 12, 2008, death of his wife, Nancy Cooper.
Nancy Cooper's body was found several days later in an undeveloped subdivision 3 miles from their home in Cary's Lochmere neighborhood.
Brad Cooper, 39, was found guilty of first-degree murder on May 5, 2011, but he has maintained that Nancy Cooper went running on the morning of her death and never returned home.
The Appeals Court has not ruled on the case or put it on its calendar.
The state's evidence in the two-month trial was mostly circumstantial, with the exception of a Google Maps search performed on Brad Cooper's work computer the day before Nancy Cooper disappeared.
Defense attorneys wanted to call two witnesses, who ultimately were not permitted to testify, to support their claim that the computer had been hacked and that the information about the map search had been planted onto the machine.
The first witness, network security professional Jay Ward, was not allowed to testify because the judge ruled he wasn't qualified as a forensics computer analyst.
"Ward had no training, no education, no certifications and no legitimate experience in the field of forensic computer analysis," the state said in its brief. "Ward repeatedly admitted his lack of training and knowledge when questioned by the prosecutor."
Defense attorneys then called Giovanni Masucci as a last-minute witness, but he wasn't allowed to testify for several other reasons.
According to the state, defense attorneys did not provide enough time for prosecutors to investigate Masucci or to prepare for a "meaningful cross-examination" because his name was not on a potential witness list as required by law.
The state argued that Superior Court Judge Paul Gessner's ruling was justified because only non-expert witnesses are allowed to testify at the last minute.
"That statute permits the testimony of undisclosed lay witnesses upon a showing of good faith," the state said in its brief.
The state also noted that the defense had two other forensic computer experts on its witness list who could have also testified.
In Cooper's appeal, his attorneys argued that prosecutors should have been prepared for Masucci, largely because his findings were based upon Ward's work, and prosecutors already had that evidence.
"The trial court had even greater reason to exclude Masucci’s testimony because his conclusions were based upon tests performed by Ward, which the court deemed unreliable," the state responded in its brief.
Gessner's third ruling denied defense attorneys access to the FBI's standard operating procedures for forensic computer examinations.
Cooper's appellate attorneys argued that defense attorneys should have been granted access to the information, but the state said in its brief that the trial court acted properly by withholding it based on what it called "law enforcement qualified privilege."
"Under federal common law, there is a qualified government privilege not to disclose sensitive investigative techniques when public disclosure of such information would adversely affect future criminal investigations," the state said.
It ended its brief, saying that even if there were any error on the trial court's part, it was "harmless," because of the "overwhelming circumstantial evidence linking (the) defendant to Nancy's murder, unrelated to the Google map search."
During trial, nearly 100 witnesses testified over 36 days as prosecutors sought to prove that the Coopers were in the process of separating and that an angry Brad Cooper, tired and fed up with his wife, planned and carried out her murder.
Defense attorneys argued detectives never looked beyond their client as a suspect because they were concerned that a random murder would tarnish Cary's reputation as a safe community. They characterized police work as being "dishonest" and "inept."
It took the jury of 10 women and two men about 10 hours over the course of three days to reach their verdict.
According to the North Carolina Department of Public Safety, Brad Cooper is currently at Central Prison in Raleigh serving out his life sentence.