Brad Cooper: Appeal info

I predict the appeal will be denied.

There are four points made in the brief:

1) PRECLUDING THE TESTIMONY OF GIOVANNI MASUCCI

At the time of the ruling Giovanni had not even finished his report. I see no way his testimony could have been allowed.

2) RULING THAT JAY WARD WAS NOT QUALIFIED

The defense was given wide latitude to ask forensic questions under the guise of network expertise.

3a) DEFENSE MOTION FOR PRETRIAL DISCOVERY

I don't know the details behind this.

3b) MOTION AT TRIAL PRODUCTION OF THE DATA CREATED

While Gessner ruled the prosecution did not have to provide the MFT, they did provide it. It even would up on the defense's buffet of evidence table.

On appeal point #2, I find it interesting that Jay Ward himself said he agrees with Gessner's ruling that he was not a forensic expert. Here's a refresher on what Jay Ward posted on WS about that, right after he testified in April 2011:

ncsu95 said:

Based on the issues brought up in the appeal, I think it is highly likely that Brad gets a new trial.

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In reading through the appeal document, it seems like he has solid grounds for appeal on the basis that his constitutional rights were violated. Any thoughts on whether they were actually violated?

As I was reading the appeal document, it struck me as so unusual that a man, whose wife was found murdered, would immediately lose custody of his children. I've never heard of that before, and wondered if Brad was treated differently because he was not a US citizen. For example, when Michelle Young was murdered, no one even considered taking custody of his daughter because everyone knew that a child would not be taken from a parent without good cause. The exact opposite occurred with Brad. I would like to see this practice tested with other cases; a NC case where the murder of a spouse results in the the immediate transfer of custody to the in-laws.

I've been reading Amanda Lamb's book about the case. It's interesting to see how she tells the story as opposed to how the appeal reads.

otto said:

In reading through the appeal document, it seems like he has solid grounds for appeal on the basis that his constitutional rights were violated. Any thoughts on whether they were actually violated?

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IMHO, the defense was expert witness shopping. The original two expert witnesses on their list were never called to the stand. Some have said this was because they didn't like the conclusions they drew.

The theory of the bogus timestamps was originally Kurtz's. Not a computer expert, but a lawyer. He then had to find an expert who was willing to testify to his theory.

They found Jay Ward, who was willing, but not an expert in Window's timestamps. They found Giovanni, but too late. And, Giovanni never finished his report and never analyzed the drive himself.

The constitution does not guarantee defendants the right to have unlimited time and attempts to find someone who will get on the stand and say whatever the defense lawyer tells him to.

macd said:

IMHO, the defense was expert witness shopping. The original two expert witnesses on their list were never called to the stand. Some have said this was because they didn't like the conclusions they drew.

The theory of the bogus timestamps was originally Kurtz's. Not a computer expert, but a lawyer. He then had to find an expert who was willing to testify to his theory.

They found Jay Ward, who was willing, but not an expert in Window's timestamps. They found Giovanni, but too late. And, Giovanni never finished his report and never analyzed the drive himself.

The constitution does not guarantee defendants the right to have unlimited time and attempts to find someone who will get on the stand and say whatever the defense lawyer tells him to.

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Brad would be a computer expert, so if his lawyer proposed the idea, it probably came from Brad.

I understand that the problem is that the prosecution introduced new information at the last minute ... isn't that where the problem started? Admittedly, I got a bit lost with all the computer timestamp information, and I'm pretty sure that the judge didn't understand any of it.

otto said:

Brad would be a computer expert, so if his lawyer proposed the idea, it probably came from Brad.

I understand that the problem is that the prosecution introduced new information at the last minute ... isn't that where the problem started? Admittedly, I got a bit lost with all the computer timestamp information, and I'm pretty sure that the judge didn't understand any of it.

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Brad was a VOIP expert and had a degree in computer science, but he was not an expert in Windows operating systems. I would be surprised if he knew how Windows Vista was set to handle file timestamps. He almost certainly didn't know about the IE private browsing bug in the beta version of IE on his laptop on 7/11/08--that really screwed him.

BTW, the prosecution did not introduce new information during their case in chief. Ward was deemed to not be a "forensic expert" during the defense case in chief. During the rebuttal phase the prosecution did present newly found info -- a chat log in which Brad wrote to his coworker he had borrowed a 3825 router to take home. The coworker testified the router was never returned and was never seen again.

otto said:

Brad would be a computer expert, so if his lawyer proposed the idea, it probably came from Brad.

I understand that the problem is that the prosecution introduced new information at the last minute ... isn't that where the problem started? Admittedly, I got a bit lost with all the computer timestamp information, and I'm pretty sure that the judge didn't understand any of it.

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Kurtz claims credit for himself on his website:
http://www.kurtzandblum.com/blog/cooper-case

"After describing the anomalies that we ourselves had found"

At the last minute the prosecution did find one more smoking gun. They found a log message on Brad's computer that proved that a VoIP capable router was directly attached to it Friday evening. That VoIP capable router was not in the house when the search warrant was executed. To me, this is a huge smoking gun regarding the faked phone call. However, in the end, the prosecution did not present this info.

Madeleine74 said:

On appeal point #2, I find it interesting that Jay Ward himself said he agrees with Gessner's ruling that he was not a forensic expert. Here's a refresher on what Jay Ward posted on WS about that, right after he testified in April 2011:

"Actually, I agreed with the Judge's ruling not to allow me to testify to forensic practices. As I freely admitted on the stand, while I do have some experience in analyzing forensic data, I would never hold myself out as a forensic expert. I also told the defense this, up front.

What I disagreed with, was the DA taking obvious advantage of the Judge's ignorance in technology to claim that so much of what would normally be within my normal purview as analysis as being "forensics". This is simply laughable, but I do understand that the DA also has a job to do and I do not begrudge him. As a matter of fact, I went up to him during the break and told him that I understood he was doing his job and that I held no ill feelings towards him. I extended the same courtesy to Special Agent Johnson from the FBI, and found him to be warm, cordial and genuine."​

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The defense wasn't calling him a forensics expert. The question is whether he was qualified to have an opinion of what the forensic evidence showed. He was not allowed to provide an opinion of what the forensic examination done by the "FBI" showed with regards to tampering of the computer, when he was fully qualified to do so.

otto said:

In reading through the appeal document, it seems like he has solid grounds for appeal on the basis that his constitutional rights were violated. Any thoughts on whether they were actually violated?

As I was reading the appeal document, it struck me as so unusual that a man, whose wife was found murdered, would immediately lose custody of his children. I've never heard of that before, and wondered if Brad was treated differently because he was not a US citizen. For example, when Michelle Young was murdered, no one even considered taking custody of his daughter because everyone knew that a child would not be taken from a parent without good cause. The exact opposite occurred with Brad. I would like to see this practice tested with other cases; a NC case where the murder of a spouse results in the the immediate transfer of custody to the in-laws.

Click to expand...

Regardless of the outcome of the trial and my opinion of what went on during the trial, I thought it was horrible how that whole custody crap went down. While I know the Rentz family believed he did it from the start, to have his kids taken from him without any real justification is absurd. He hadn't been charged with a crime at that point, and there was zero evidence or reason to believe that his kids were in danger being with him. That was garbage and happens to dads a lot more than it should.

otto said:

In reading through the appeal document, it seems like he has solid grounds for appeal on the basis that his constitutional rights were violated. Any thoughts on whether they were actually violated?

As I was reading the appeal document, it struck me as so unusual that a man, whose wife was found murdered, would immediately lose custody of his children. I've never heard of that before, and wondered if Brad was treated differently because he was not a US citizen. For example, when Michelle Young was murdered, no one even considered taking custody of his daughter because everyone knew that a child would not be taken from a parent without good cause. The exact opposite occurred with Brad. I would like to see this practice tested with other cases; a NC case where the murder of a spouse results in the the immediate transfer of custody to the in-laws.

Click to expand...

I actually do believe his rights were violated. I think the DAs office manipulated Gesner throughout the trial and that Gesner was in over his head with regards to the technology portions of this trial. Again, I'm by no means an expert, but after reading the appeal, I could see the conviction being overturned. I didn't think the trial was fair while watching it. Neither did a lot of other people.

ncsu95 said:

I actually do believe his rights were violated. I think the DAs office manipulated Gesner throughout the trial and that Gesner was in over his head with regards to the technology portions of this trial. Again, I'm by no means an expert, but after reading the appeal, I could see the conviction being overturned. I didn't think the trial was fair while watching it. Neither did a lot of other people.

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I watched a good portion of the trial, and I too was quite surprised at some of the decisions ... especially towards the end of the trial, where the judge seemed very much to favor giving the prosecution what they wanted, while denying the defense an opportunity to be heard on all subjects.

ncsu95 said:

Regardless of the outcome of the trial and my opinion of what went on during the trial, I thought it was horrible how that whole custody crap went down. While I know the Rentz family believed he did it from the start, to have his kids taken from him without any real justification is absurd. He hadn't been charged with a crime at that point, and there was zero evidence or reason to believe that his kids were in danger being with him. That was garbage and happens to dads a lot more than it should.

Click to expand...

I'm reading the book by Amanda Lamb, and one thing that is repeated a couple of times is that Krista intended to tell the children who murdered their mom as soon as there was a conviction. That stunned me. I don't think I would ever put that on children so young. They can hear about that when they're older, when they can cognitively understand what really happened. Without telling them that their dad still maintains his innocence, that he is fighting to clear his name and resume his relationship with his daughters ... I don't know ... doesn't entirely sit well with me. It seems to me that in telling such young children that their father murdered their mother, murder becomes part of their personal identity ... and who wants that for a child.

Another thing that is often repeated is that Nancy came from an upper middle class socio-ecomonic background with a good education. As far as I can recall, Nancy didn't study after high school, but worked in IT helping people with microsoft office tools (something like that). She also had a used clothing shop at some point. It all strikes me as middle class. This remark is in the context of stating that it is very difficult for women in upper middle class socio-economic situations to ask for help when their marriage is collapsing. It doesn't make sense, because everyone knew that her marriage was collapsing ... clearly there was no difficulty whatsoever in asking for help.

It's almost like the family presented a set of beliefs that they wanted adopted, and for the most part they were adopted ... right down to the double standard of extra-marital affairs and blame. Apparently Nancy could not forgive Brad for his fling with Heather Matour so Brad was responsible for the breakdown of the marriage, but in the first year of marriage, she was guilty of having an affair with a man from Florida whom she invited to her sister's wedding in Canada ... and then there were more flings, one of which has raised a big question about the paternity of one of the children.

The custody case was separate from the criminal case. Different courts, different judges. After the emergency order, which was in effect for 7 days, and with a custodial hearing scheduled 1 week later (on July 25th), Brad entered into a voluntary temporary custody arrangement with his in-laws before that hearing to keep the kids in Canada and have scheduled visitation. The judge did not decide nor was involved in that -- that was between the 2 parties directly.

The custody hearing was held on Oct 17th, the judge made her decision several days later, and not too long after that Brad was arrested for his wife's murder on Oct 27th. In the end the children were going to end up in Canada one way or the other.

I'm reading the book by Amanda Lamb, and one thing that is repeated a couple of times is that Krista intended to tell the children who murdered their mom as soon as there was a conviction.

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That's not what Krista said in her various interviews. She was going to wait until the kids were older and allow them to initiate a discussion or ask questions when they were ready and the family would carefully address their questions (probably with wording suggested by a child therapist, appropriate to their age). The only thing she did explain to the children (at least at that time) is that mommy was hurt by a bad man, mommy is in heaven, and the bad man is in prison. The identity of this "bad man who hurt mommy" was not mentioned. The children were not told bad things about Brad nor was he disparaged to them. Protecting the children and giving them a loving and stable family life has been and I'm sure continues to be the most important thing.

ncsu95 said:

The defense wasn't calling him a forensics expert. The question is whether he was qualified to have an opinion of what the forensic evidence showed. He was not allowed to provide an opinion of what the forensic examination done by the "FBI" showed with regards to tampering of the computer, when he was fully qualified to do so.

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According to what Jay himself said, he agreed with the judge's ruling. Whether or not anyone else thinks he was qualified to discuss the data that was found on that hard drive as part of a forensic exam, the court said no and Ward himself said that same evening he agreed with the judge.

Madeleine74 said:

According to what Jay himself said, he agreed with the judge's ruling. Whether or not anyone else thinks he was qualified to discuss the data that was found on that hard drive as part of a forensic exam, the court said no and Ward himself said that same evening he agreed with the judge.

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To me, it doesn't matter what Jay said in this regard. He's not a lawyer, he's an IT guy.

I think to win appeal they have to show two things: error and damage. I have a hard time finding the damage. In the end, the defense got in all the evidence in they wanted. Kurtz went on and on in closing about the timestamps, showing the graphs, and proposing the files were planted. He did this and was not subject to cross exam. He got the best of both worlds. He presented his theory to the jury and did not have to defend it. So, I see no damage.

If there is another trial, the bogus timestamp theory won't work in court anyways. See the next thread down on "Recreating the Google Search" for why.

Madeleine74 said:

The custody case was separate from the criminal case. Different courts, different judges. After the emergency order, which was in effect for 7 days, and with a custodial hearing scheduled 1 week later (on July 25th), Brad entered into a voluntary temporary custody arrangement with his in-laws before that hearing to keep the kids in Canada and have scheduled visitation. The judge did not decide nor was involved in that -- that was between the 2 parties directly.

The custody hearing was held on Oct 17th, the judge made her decision several days later, and not too long after that Brad was arrested for his wife's murder on Oct 27th. In the end the children were going to end up in Canada one way or the other.

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I'm aware of what went down. It just shouldn't have happened until he was arrested.

Madeleine74 said:

According to what Jay himself said, he agreed with the judge's ruling. Whether or not anyone else thinks he was qualified to discuss the data that was found on that hard drive as part of a forensic exam, the court said no and Ward himself said that same evening he agreed with the judge.

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He agreed with the judges ruling that he wasn't a forensics expert. That isn't what his being argued in the appeal. Jay never said he wasn't qualified to provide an opinion on whether the computer had been tampered with based on the files/timestamps.

macd said:

To me, it doesn't matter what Jay said in this regard. He's not a lawyer, he's an IT guy.

I think to win appeal they have to show two things: error and damage. I have a hard time finding the damage. In the end, the defense got in all the evidence in they wanted. Kurtz went on and on in closing about the timestamps, showing the graphs, and proposing the files were planted. He did this and was not subject to cross exam. He got the best of both worlds. He presented his theory to the jury and did not have to defend it. So, I see no damage.

If there is another trial, the bogus timestamp theory won't work in court anyways. See the next thread down on "Recreating the Google Search" for why.

Click to expand...

There is a difference from a lawyer bringing it up during closing arguments and an expert explaining why it indicates tampering.