It totally made sense when you realize the rules of the court. Had they introduced that testimony from Chris Fry, THEN the defense could have gotten in the Masucci testimony. There were pluses and minuses to each (getting the Fry info in vs. leaving it out). The state decided they didn't need the Chris Fry testimony about that log file *so bad* to then allow the defense to be able to put Masucci on the stand in front of the jury. And that was the rule per the judge. If the state wanted Chris Fry with that late-breaking log file info from Cisco, then they had to accept Masucci.
And they decided not to put Fry's testimony about the log file in. We, the viewing audience, heard about it, but the jury did not.
Calculated risk, but turns out they didn't need Chris Fry's testimony about that log file. BC's friend from Cisco, Greg Miglucci, showed the IM chat log in which BC said he had taken a 3825 router home and the state felt that was good enough.
The jury convicted, so that tells you the risk to leave out the log file paid off.
Masucci said he wasn't finished with his report. I don't know how fair it would have been to put on an expert witness whose report was only half done. Plus, his report was based on Jay Ward's info and not on any independent examination he made.
It would have been interesting to see all the evidence presented in the case, yes, but I say that as a spectator. What we spectators believe is fair (or unfair) doesn't have any bearing on what constitutes a valid legal decision to include or exclude a witness. Whole different set of rules, which is why lay people aren't lawyers. Imagine standing up in front of a judge and saying, "But your honor...that's not faiiiiirrrrr!" And when the judge asks you to cite precedent and case law for your argument, all you can do is give your best pouty face, stomp your foot, and whine again, "NOT fairrrrrr!"
To me this was a major faux paus by the defense, and the biggest mistake they made in this case. Remember J Ward posted on WS right after he testified. In his posting he said he told the defense right from the get go that he was NOT a computer forensic expert. He told them he was a network expert. Yet the defense decided to go with him anyway, knowing full well it was a gamble. And they lost the gamble! J Ward said he agreed with Gessner's ruling to exclude him as a computer forensic expert.One strike against the defense is that they wanted to introduce a witness that was not on the witness list, but understandably this happened after the witness they thought would be approved was discredited
You can't fault the state for the defense trying to get this guy in as a computer forensic expert and then losing that gamble. THEY KNEW from the beginning he was not qualified in that capacity.
The question I would be asking my defense attorney if I was the defendant was, "WHY did you go with this guy when you KNEW he wasn't qualified? WTH! Was there no one else you could possibly find who would be qualified as a forensic expert and find that person before the trial started?"
The reason I don't think this particular issue will win on appeal is because the error was made by the defense (as detailed above). The judge's ruling was based on law and precedent. Defense gambled big time, knowing their guy (Ward) was not really a forensic expert. Had they looked for a real forensic expert back at the beginning, when Ward told them he wasn't qualified as an expert, they would have been much better situated. You have to ask, why didn't they? Trying to slide in a witness you just found, who hasn't even finished a report, is not such a good strategy.could result in a complete retrial through appeal
I certainly don't remember that ruling. The defense pre-emptively argued that CFs testimony should allow GM, but the judge refused to base a ruling on what might happen, even though the prosecution said it was going to happen. When did Gessner say that GM could testify if CF testified?
The judge mentioned to the prosecution about 'opening the door' with the Chris Fry inclusion. That was his warning of what that would mean. It was during a hearing outside the presence of the jury, I don't remember the specific day, but around the time the defense tried to bring in Masucci. The judge would have allowed Masucci in had the state brought Fry and the log file in, and the state was left to ponder that decision and decide whether to take the risk or not.
ALso, I think most lawyers agree that without adequate time to prepare for a witness, they would rather stick with those from whom they can anticipate the content and tenor of the testimony. rather than opening "new doors" at a late stage of the trial.
"Outside of a dog, a book is man's best friend. Inside of a dog, it's too dark to read."
Like AK's 'Foxy Knoxy' on her facebook... it is only natural to question it.
The Seeker / Sports Freak /
And, it says to me that the theory wasn't sound or likely.
"Outside of a dog, a book is man's best friend. Inside of a dog, it's too dark to read."
Love Lies, the book based on this case comes out next week.
Two local book signings and Q&A with the author.
Barnes and Noble on Sunday and Quail Ridge on Thursday.
Anyone going? What questions would you ask Amanda?
From WRAL.COM 4/5/2012:
Raleigh, N.C. — An attorney for a Cary man convicted last year of killing his wife has asked the state Court of Appeals for an extension to appeal his conviction.
Brad Cooper was found guilty May 5 of first-degree murder in the July 12, 2008, death of Nancy Cooper, whose body was found in an undeveloped subdivision several miles from their home.
Ann Peterson, an appellate attorney for Cooper, says in a motion filed Tuesday that the transcripts from the nearly two-month long trial were originally due on July 12, 2011, but that there several delays and she did not receive the 8,800-page file until Feb. 10.
Peterson wants 30 days past the April 11 deadline to appeal because she needs more time to read and review the transcripts.
One possible ground for appeal is likely to center on evidence that jurors didn't get to hear.
Cooper's defense team claimed that someone tampered with a computer in which investigators found evidence of a Google Maps search of the site where Nancy Cooper’s body was found that was conducted the day before she went missing.
The judge, however, did not allow the testimony, saying the expert witness wasn't qualified. He also disallowed a second witness, because the prosecution argued that timing didn't allow them to prepare for adequate cross-examination.
Cooper, 38, is serving life in prison without the possibility of parole at Central Prison in Raleigh.
A little off topic, but not entirely ... Brett Wilson, the guy that Nancy Cooper was seeing before she married Brad, and who she was connecting with when the marriage fell apart, was awarded the Order of Canada.
And today he has appealed.
18 months to get to the point of filing. Although a significant portion of that time is waiting for the court reporters to finish the trial transcript. Tick Tock.
Based on the issues brought up in the appeal, I think it is highly likely that Brad gets a new trial.
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:
"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."
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.
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.