Brad Cooper: Appeal info

[calgary123]

Having watched this, and having forgotten a lot of the Jay Ward testimony, including the voir dire testimony, I find it interesting the appeals court is focusing on whether Jay Ward's lack of "forensic" qualifications excludes him from testifying as an expert. I agree with the appeal court that the word "forensic" isn't particular helpful to determine qualifications.

That being said, Jay Ward's expertise was network security, not in how data should appear on a hard drive for any particular operating system.

In any event, Jay Ward was allowed to testify as a network security expert, was he not?

I found both appellate counsel's arguments poor-- in that they both missed their best points, but that's just my opinion. I found it interesting that the appeal panel focused a lot on the threshold test to qualify an expert under the NC rules.

I also found it interesting that Brad's appellate counsel chose to not throw Kurtz under the bus. And that Kurtz was in the front row watching.

This appeal is not really about whether Brad did it, which I'm confident he did, but rather, on the integrity of the process. And that's fine too. Brad may very well obtain a new trial in this.

Looking back, I expect the state, knowing about the technical side better now than they seem to before, would have a stronger case the second time around.

[macd]

I think a lot of the answers that Ann gave in her appeal oral arguments were not true.

She claims that Jay did not testify about the timestamps and that the timestamps were not argued as evidence of tampering in closing arguments.

At about 49:00 minutes in closing arguments video http://www.wral.com/specialreports/n...2/#/vid9541522 Kurtz shows slides from Jay Ward's report arguing that the timestamps indicate tampering.

At about 3:30 minutes Jay Ward testifies about timestamps.
http://www.wral.com/specialreports/n...1/#/vid9474261

Kurtz got the tampering theory in front of the jury, he just added "related to network security" to the end of each of his forensic related questions and the judge allowed it.

[macd]

By the way, do people really believe that timestamps on your hard drive change every time you move your mouse?

[Madeleine74]

Hi Calgary and MacD!

I too was very underwhelmed by the arguments of both sides.

And the questions asked by the appellate judges also had me scratching my head. Are they trying to say THEY don't know what qualifies someone to be considered a forensic expert and they have to ask this question of the appeal attorneys to gain an understanding? If the appellate judges don't know the answer to what constitutes a valid expert then why are they at the appellate level? And if they don't know the answer and this is a discretionary decision at the trial level, then how can they determine if the trial judge applied the rule correctly if they themselves don't know what it means? It seemed circular in logic to me. The buck stops with them (the appellate). They should know the answers.

The appellate judges reminded me of a meeting I was in once with a CEO of this small co I once worked for. And the CEO was asking WHY they were in a certain line of business in which a new product had just launched. I remember thinking to myself, "you've spent $2.5M on this product line so far, just released your first product, and you're now asking WHY you're in that business? Dude, you're the CEO. If you don't know....Houston, we have a problem."

[jrb0124]

Originally Posted by macd

Kurtz got the tampering theory in front of the jury, he just added "related to network security" to the end of each of his forensic related questions and the judge allowed it.

Here is what this appeal will come down to:

1) Defense witnesses re: tampered files, expert classification.

The reason the appeals judges pestered the State about this is because there is precedent. I expect the appeals court to rule that Gessner erred in disallowing JW (and GM in that) to testify in this capacity. He did allow an airport cop looking at his 3rd computer to testify in this regard for the State

2) Would the purported tampering testimony (disallowed) have affected the verdict?

Of course, it would have. The jurors said as much. To compound this, Boz insisted in the State's closing argument that (paraphrasing here) "not one witness from the defense testified that these files were tampered with". Dumb...because this reinforces the concept that "untampered" map files were crucial to the State's case. If Boz had not said that, I'd give this appeal a 50/50 chance at a new trial. As its stands i would be surprised if THIS appeals court (based on past rulings) does NOT grant BC a new trial due to Gessner's error in not allowing testimony.

I don't think the FBI issue with "national security" will even need to come into play.

my prediction:

*State emphasis in closing i.e. "no defense witness told you there was tampering"
*Gessner (in error) disallowing above testimony

=reversal, new trial and Gessner has Boz, in part, to thank for that.

BC guilty or not, it is what it is.

[jrb0124]

latest filing

this might relate to what I posted above:

"the memorandum in this case improperly contains quotations from the transcript as well as counsel’s summary of testimony that includes words
underlined and bolded for emphasis."

[Madeleine74]

Closing arguments ≠ testimony.

Testimony and rulings are what the appellate level concentrates on.

[ncsu95]

Originally Posted by otto

Friends provided pictures of Nancy wearing the necklace and claimed that she never took it off. People that were with her at the pool on the afternoon of the party claimed that she was wearing her necklace. Video from that day, taken after Nancy left the pool and before she went home, showed that she was not wearing her necklace. What the defense demonstrated was that the claims regarding the necklace, made by friends and family, were untrue. They did not look at every picture in history to find one where she was not wearing the necklace.

It was found in a drawer.

Personal remarks have no place here.

That video made any other arguments about the necklace moot. All we know with regards to the necklace is that she wasn't wearing it in a video at Harris Teeter less than 24 hours before her death. How often she wore it prior to that trip to HT doesn't matter.

[ncsu95]

Originally Posted by calgary123

Having watched this, and having forgotten a lot of the Jay Ward testimony, including the voir dire testimony, I find it interesting the appeals court is focusing on whether Jay Ward's lack of "forensic" qualifications excludes him from testifying as an expert. I agree with the appeal court that the word "forensic" isn't particular helpful to determine qualifications.

That being said, Jay Ward's expertise was network security, not in how data should appear on a hard drive for any particular operating system.

In any event, Jay Ward was allowed to testify as a network security expert, was he not?

I found both appellate counsel's arguments poor-- in that they both missed their best points, but that's just my opinion. I found it interesting that the appeal panel focused a lot on the threshold test to qualify an expert under the NC rules.

I also found it interesting that Brad's appellate counsel chose to not throw Kurtz under the bus. And that Kurtz was in the front row watching.

This appeal is not really about whether Brad did it, which I'm confident he did, but rather, on the integrity of the process. And that's fine too. Brad may very well obtain a new trial in this.

Looking back, I expect the state, knowing about the technical side better now than they seem to before, would have a stronger case the second time around.

I know it is standard to claim incompetent defense, but I think Kurtz did a great job.

[jrb0124]

Originally Posted by Madeleine74

Closing arguments ≠ testimony.

Of course - and I never equated the two.

Testimony and rulings are what the appellate level concentrates on.

Not quite. Judicial error (incl discretion or lack of re: attorney conduct and other things) is what the Appeals Court deals with.

Are you suggesting that NC Appellate Court would not entertain issues relating to what is said in closing arguments? and weigh the effect of those issues on the result of the trial?

[Madeleine74]

Are you suggesting that NC Appellate Court would not entertain issues relating to what is said in closing arguments? and weigh the effect of those issues on the result of the trial?

When Boz made his statement about "no forensic expert sat in the witness chair and told you that..." that was an accurate statement. He didn't provide the full context of why no defense expert testified about the computer files but I'm not aware of any requirement to do so. The jury was instructed that closing arguments are not evidence and they are to rely on their own notes and observations to determine the truth.

If BC does win an overturned conviction then the other evidence against him that was found in the latter stage of the trial by Cisco but not presented to the jury--the sys event files found that prove he was both in possession of a 3825 router and connected to the CSCO network around 10pm the night of the murder will be used in a retrial. I believe if there is a retrial he will again be convicted.

[Madeleine74]

Originally Posted by ncsu95

That video made any other arguments about the necklace moot. All we know with regards to the necklace is that she wasn't wearing it in a video at Harris Teeter less than 24 hours before her death. How often she wore it prior to that trip to HT doesn't matter.

And that grainy poor quality HT video was made moot by the fact that 3 witnesses testified to seeing NC wear that necklace after that HT video. First at her own house around 3pm by one witness and then 2 other witnesses at the BBQ across the street starting at 6pm. Further, 2 witnesses testified NC was wearing the necklace at the pool where she was, immediately before her visit to HT.

All anyone can say about the HT video is they can't see her necklace around her neck in the video. No one can definitively say she wasn't wearing it. Her diamond earrings are also not visible in that video and there was no suggestion by the defense she wasn't wearing those (but again there was testimony that she was indeed wearing the earrings both before and after the HT visit and also at the party).

Doesn't matter what people think they see or not see in a poor quality video. She was witnessed by several people wearing her necklace and earrings the last time anyone aside from her husband saw her alive.

[ncsu95]

Originally Posted by Madeleine74

And that grainy poor quality HT video was made moot by the fact that 3 witnesses testified to seeing NC wear that necklace after that HT video. First at her own house around 3pm by one witness and then 2 other witnesses at the BBQ across the street starting at 6pm. Further, 2 witnesses testified NC was wearing the necklace at the pool where she was, immediately before her visit to HT.

All anyone can say about the HT video is they can't see her necklace around her neck in the video. No one can definitively say she wasn't wearing it. Her diamond earrings are also not visible in that video and there was no suggestion by the defense she wasn't wearing those (but again there was testimony that she was indeed wearing the earrings both before and after the HT visit and also at the party).

Doesn't matter what people think they see or not see in a poor quality video. She was witnessed by several people wearing her necklace and earrings the last time anyone aside from her husband saw her alive.

It's only people in this forum that suggested she was actually wearing the necklace in the HT video. The prosecution certainly didn't argue that she was. If they thought she was, it would have been easy to recreate since they had the necklace and hat HT is still there. But they didn't argue that the video was misleading. She wasn't wearing it at HT, which means she did take it off. So her wearing it later at the party means nothing. That's the problem with words like always and never.