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  1. #1
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    Post Brad Cooper: Appeal info

    Since this is a non-DP case, appeal will go to NC Appellate Court (comprised of 15 judges roatated in groups of 3).


    May 4: Notice of Appeal issued at the end of the trial (Kurtz)

    (total time elapsed) next steps:

    (65 days) request for transcripts (court has 65 days to provide these to the defense)

    (100 days) using transcripts and other material, proposed record on appeal is due within 35 days (30 day extension(s) can be granted)

    (121 days) upon completion, pros is served with proposed record and has 21 days to request revisions.

    proposed record includes Q&A/statements re: potential errors (assignments of error) with references to the record/transcript, supporting arguments of unfair prejudice in trial errors which require address and relief.

    if pros and def attorney agree on the record, it becomes a record on appeal and goes to the appellate court. If they don't agree, a judge will take up the issue in conference and decide the content for the record on appeal.

    (151 days) once the record is formalized, defense has 30 days to serve a brief: legal arguments with references and citation, summary of proceedings and evidence.

    (181 days) AG then has 30 days to respond with State's brief/arguments.


    ***Appellate Court then schedules record for consideration.

    (300-400 days?)

    Defense/State may or may not be called to present oral argument. There is no evidence introduced or presented. Appellate Court will determine only if legal errors were committed. Such errors which unfairly prejudiced the defendent may result in relief in the form of (for this case): dismissal of the charges, or a new trial.


    Record will appear here: http://appellate.nccourts.org/dockets.php?court=2, once its on the Appellate dockets.

  2. #2
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    I compiled a list of potential legal errors Kurtz may showcase, and will post that from home. When HK indicated in his interview that he feels BC has a good shot at relief I don't think he's shooting from the hip.

  3. #3
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    HK's interview with David Crabtree was interesting. He was strong in his conviction (sorry, bad pun) that Brad was framed and innocent.

    I am not sure I agree with that - but - I do agree that judges should have technical consultants (impartial / 3rd party) at their disposal to help understand the items on which they are going to rule.

    For example - is there a listing of "types" of experts? i.e. is it like getting a degree or recognized professional certification? or is it rather fluid and, I for example, with 10 years of dog rescue experience, being a non profit VP, tending to medical care for over 500 dogs, being the intake coordinator for 3 years / 400 dogs and performing the duties of a treasurer could be named a "dog rescue expert" if I sit on the stand and both attorneys agreed that I have expert knowledge?

    I ma trying to determine if there's a recognized pool of applicants as a "Computer forensic expert" or that the determination is rather broad and agreed to at that time in court.

    That might be a judicial error - not allowing someone with certain skills - many of which might overlap with another "expert" to testify.

  4. #4
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    Here is another place to compile information.
    http://www.facebook.com/pages/Free-B...8791917?ref=ts

    Thanks so much, jrb0124!

  5. #5
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    The appellate judges will no longer look at evidence in the case. They will only consider judicial error and it sounds like that is an uphill battle for any felon, taking up to several years to get the case heard.

    Michael Peterson, convicted in 2003, lost his appeal at the N.C. Court of Appeals in 2006 and lost his appeal at the N.C. Supreme Court in 2007. Because his case involved blood evidence, he is appealing again (after the SBI problems surfaced).

    From conviction to first appeal: 3 yrs
    From conviction to State Supreme Court: 4 years

    I don't know if that's an average timeline or not.

  6. #6
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    Of the grounds for appeal, there is no doubt the exclusion of GM expert testimony as well as the limit placed on JW's testimony will come into play. There are other grounds, of course. The extracts are from NC evidence code.

    Relevant evidence is "evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." N.C.G.S. 8C-1, Rule 401 (1992).

    "All relevant evidence is admissible" unless it is excluded by some other constitutional or statutory exclusionary rule. N.C.G.S. 8C-1, Rule 402 (1992).

    Relevant evidence may, however, be excluded "if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time or needless presentation of cumulative evidence." N.C.G.S. 8C-1, Rule 403 (1992).

    case;

    “The determination of whether relevant evidence should be excluded under Rule 403 is a matter that is left in the sound discretion of the trial court, and the trial court can be reversed only upon a showing of abuse of discretion.”  State v. Hipps, 348 N.C. 377, 405-06, 501 S.E.2d 625, 642 (1998), cert. denied, 525 U.S. 1180, 119 S.Ct. 1119, 143 L.Ed.2d 114 (1999).

    -----------------------------------------------------------------------

    Was the probative value "substantially" outweighed? or was this abuse of discretion?

    Remember, this is evidence of which cross was limited due to "national security" concerns. While that could be a different error assigned altogether, it does speak to both the weight and vulnerability of the evidence.

  7. #7
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    Quote Originally Posted by Madeleine74 View Post
    The appellate judges will no longer look at evidence in the case. They will only consider judicial error and it sounds like that is an uphill battle for any felon
    They will not look at any new evidence. Proffered testimony from expert witnesses excluded by the judge are fair game.

    ETA: that's not the average timeline - enter MP name in the link in the first post you will see (motions/party) why that dragged as long as it did.
    Last edited by jrb0124; 05-10-2011 at 12:25 AM.

  8. #8
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    I got 56 hits in the Appellate Court opinion database involving Judge Gessner.

    Of those 56 Gessner cases, 12 were either vacated, remanded, reversed or reversed in part.

    So roughly 21% of the Gessner cases appealed and heard have resulted in a finding of legal error, and relief to the petitioner.

    This report on intermediate appellate court outcomes does not include NC, but judging by the region, 10% seems to be the average for cases resulting in relief.

    5 December 2000
    Gessner Reversed and remanded
    "Accordingly, summary judgment was not proper and this case is remanded to the trial court"

    21 May 2002
    Gessner REVERSED
    "The decision of the trial court is reversed and the matter is remanded for a new hearing applying the common law presumption in favor of defendant."

    18 March 2003
    Gessner REVERSED IN PART
    "This evidence is insufficient to support the trial court’s determination..."

    6 May 2003
    Gessner REVERSED IN PART
    "The order of civil contempt is reversed"

    21 October 2003
    Gessner REMANDED IN PART
    "The trial court did not have the authority to modify this contract."

    Gessner vacated and remanded in part
    18 July 2006
    "the trial court exceeded its mandate on remand by awarding a lump sum for the interval without considering evidence

    8 May 2007
    Gessner Reversed and remanded
    "Accordingly, we reverse the judgment of the trial court and remand for a new trial"

    04 September 2007
    Gessner REVERSED and REMANDED
    "The trial court erroneously granted summary judgment in favor of defendant"

    3 June 2008
    Gessner REVERSED and REMANDED
    "Accordingly, we reverse the judgment of the trial court and remand for a new trial"

    3 March 2009
    Gessner REVERSED IN PART
    "The trial court erred in not dismissing the portions of plaintiffs’ complaint based upon general promises of protection"

    6 October 2009
    Gessner VACATED AND REMANDED
    "For the reasons stated herein, we vacate the order and remand for additional proceedings"

    4 May 2010
    Gessner VACATED
    "The judgment of the trial court is vacated..."

  9. #9
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    How does that % compare to the other superior court judges in the district?

  10. #10
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    Quote Originally Posted by Madeleine74 View Post
    How does that % compare to the other superior court judges in the district?
    M74,

    It's about average. If you take a look at the various judges here and the judgments, the judges are rotated (for example, see www.nccourts.org and look at the judicial calendar).

    Additionally, in North Carolina, we see a lot more of these cases being picked up for appeal (it's almost become an expected practice) without as many judicial errors. If you take a look at the cases overall, (and in this case in particular) the response has been to qualify cases much more clearly and quickly when the attorneys are aware of the issues and raise them in the trial record. It helps quash some of the backlog and makes the appeal less of a solution and more a part of the process. (This is why Kurtz and Trenkle spoke softly throughout the case with Gessner and you heard a lot of "Objection" "Noted for the record, overruled" throughout the testimony.) It helps flag the case as judicially flawed from the outset and speeds up the process of getting noticed. Unfortunately, when everyone does that, it kinks the justice system.

    I think this case (on appeal) has some merit on the technology-side, but I think the most that the defense can hope for is that it plays out something like this:

    1) Brad Cooper sits in jail for 2-5 years while the appellate process unfolds and gets a chance at a retrial. This is good in two respects. It probably will allow for much closer scrutiny of the respectively disagreed upon evidence on the computer. It will also allow the time to ferret out either A) exculpatory evidence or B) damning evidence.

    2) A and B above would potentially then limit the suspect pool. Let's face it. Tampering is a far-fetched idea. If it happened, it will become obvious with further scrutiny. The number of people connected to Nancy Cooper who COULD have done it would be limited. This would in effect exonerate him and justice would be appropriately served on those parties.

    3) If the evidence is then correctly linked back to BC, it would allow for a bigger, firmer smoking gun. Perhaps even indicate an accomplice in the "tampering" and "spoofing".

    Again, it's all just part of the process at this point.
    My posts contain only my opinions. (And a few me and your mom came up with during pillowtalk)


  11. #11
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    I'm well aware of why K & T were making multiple objections for the record and to preserve the info for an appellate court and also very aware of the issues raised for review.

    My question is how does Gessner's % of reverses/errors compare to each of the other judges in superior court. What are the other judge's %'s?

  12. #12
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    Quote Originally Posted by Madeleine74 View Post
    My question is how does Gessner's % of reverses/errors compare to each of the other judges in superior court. What are the other judge's %'s?
    NC Appellate does not post those stats (though they do for NC Supreme), you would have to search each judge and do the math.

    I noted 10% though based on the region in general from stats available on nearby states (who do post those, VA, TN...) and who also have a distinct appellate court.

  13. #13
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    It is more important to consider how many of those involved jury trials. Overturning a summary judgment ruling is relatively common and summary judgement never involves a jury. Jury verdicts are the most difficult to overturn.

  14. #14
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    Talking

    WOwwww!

    Excellent .... and I sure hope Kurtz is taking some serious real live-time notes. There's groundbreaking stuff here that he had 30 months to explore.

    Just sayin....

  15. #15
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    Quote Originally Posted by calgary123 View Post
    It is more important to consider how many of those involved jury trials. Overturning a summary judgment ruling is relatively common and summary judgement never involves a jury. Jury verdicts are the most difficult to overturn.
    I don't think a jury verdict has any impact to the likelihood or unlikelihood of this case being overturned or otherwise remanded. All of the big issues in this appeal are going to be directed at JGs alleged abuse of discretion in allowing and disallowing certain items of evidence.

    If you are suggesting, however, that appeals based on the sufficiency of the evidence are rarely victorious, I will agree with that.

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