Brad Cooper: Appeal info

[oenophile]

Madeleine74, with all due respect, you are flat out wrong here. Reread your definition of Exculpatory.

Exculpatory evidence (definition): Exculpatory evidence is evidence that favors a defendant in a criminal trial and tends to establish the defendant’s innocence. It shows that a defendant had no criminal intent to commit the crime.

It doesn't say, as you then state, that the evidence "establishes" innocence. It favors a defendant and tends to establish innocence. Which is what all of this evidence does.

1. The autopsy shows that NC died without food in her stomach, with a high level of caffeine, and with a level of alcohol consistent with having already processed the alcohol from the party.

False. NC's autopsy indicated a red substance as well as a segment of what appeared to be onion in her stomach. The level of alcohol was consistent with the level of decomposition, per the M.E. There wasn't a "high" level of caffeine, there was caffeine found in her system. The M.E. testified caffeine can be detected well over 24 hours in the system. Nancy was witnessed drinking diet coke at lunch, approximately 12 to 15 hours before her death, which has caffeine.

Yes, a red substance and what appears to be a piece of onion. All the rest of the food was digested. The diet coke was over lunch (which there are mixed reports on) and the prosecution went to great lengths to try to state that this could have resulted in the caffeine in the system, but it is frankly laughable. This is just rationalizing the physical evidence away.

2. The phone call.

The phone calls don't prove who "answered" on the other end, if anyone. It only establishes that calls were made from BC's cell phone to his home phone and the call terminated. There is no proof that it was Nancy who answered, or that any human answered.

Actually it was the other way around, calls made from the home to BC's cell phone. What the prosecution suggested was that these calls were somehow spoofed, but there is zero evidence of this.

3. The child saying she saw her mother (not admitted into evidence).

We don't know what the child said, specifically, nor is this evidence in the trial. Brad told investigators his eldest daughter was asleep and did not wake up. According to Brad, Nancy got dressed in her running gear downstairs, having found what she needed without him needing to get anything from upstairs where he was, and then immediately left. According to Brad, the eldest child was asleep in her bed at that time, and did not wake up until around 8:30am.

It is exculpatory evidence nonetheless. However, it was not admissible because it was hearsay. We know what the neighbor said the child said.

4. The sightings of Nancy jogging.

You keep claiming the sightings were Nancy. We don't know who she/they were. The only data is that a tall, female runner with a ponytail was seen running. This is when multiple people, multiple females who could be described exactly the same way, are out running on a weekend morning. No runner was seen in distress. No one heard or saw anything that indicated someone in trouble, someone being hassled.

Asked and answered. We know that Zednick claims she saw Nancy. We know that people claim they saw someone matching Nancy's description. This is exculpatory evidence.

ALL of these are exculpatory.

No they aren't.

Yes they are. You saying that they aren't doesn't change that. We aren't talking about opinions here. We are talking about legal definitions. And these are absolutely, without a doubt, pieces of evidence that "favor BC in the trial and tend to establish BC's innocence". What you are doing is attempting to discredit this exculpatory evidence, which the prosecution has a right to do. But it doesn't change the fact that this evidence tends to establish BC's innocence.

There is a LOT of other circumstantial evidence that taken together suggest that he is not guilty. But the above would definitely fall directly under the Brady rule for exculpatory evidence.

No, there's just circumstantial evidence that can be interpreted by a jury and, in fact, was, as his culpability in the crime and thus they determined unanimously he was guilty.

First, I know this is difficult for you to admit this, but the first trial verdict is gone, it never happened in the eyes of the law, because it was an unfair trial.

Second, the jury did what juries do, they weight the inculpatory evidence against the exculpatory evidence and attempt to ascertain the facts of the case. That is what juries do. Sometimes there is no exculpatory evidence. In this case, there was a lot. A massive amount in fact. And Trenkle's close was basically a review of much of this evidence. There was one piece of inculpatory evidence, the Google search, that was the primary reason for the first verdict, as the jurors believed this was stronger than the exculpatory evidence.

 

[Madeleine74]

IF Brad stands up in court and admits he did this, in order to get a plea of 2nd degree and thus a reduced sentence, you've said you'll believe he is then guilty. How then will you reconcile this "exculpatory evidence" that has you so convinced of his innocence?

We'll continue to disagree on the evidence. You refuse to acknowledge Chris Frye's proffered evidence in court that will (potentially) validate the 3825 router being configured by BC the night of 7/11/08, but believe Massucci's proffer without reservation. Then you point to nontestimony in the way of a partial, incomplete, and imprecise anecdotal uttering allegedly made by the eldest daughter to a family friend, which doesn't provide specific context and isn't validated. Talk about biased! I know it's difficult for you to admit this, but that isn't evidence just because you want it to be. That family friend was never called to testify.

 

[oenophile]

IF Brad stands up in court and admits he did this, in order to get a plea of 2nd degree and thus a reduced sentence, you've said you'll believe he is then guilty. How then will you reconcile this "exculpatory evidence" that has you so convinced of his innocence?

I think you misconstrue what I am saying. I said that the exculpatory evidence contributes to my belief that he is not guilty. I weigh that against the rest of the evidence presented by the prosecution that suggests he is guilty. Based on an evaluation of all of the evidence, I conclude that he is not guilty.

If he accepts a plea, then that clearly changes things, as it introduces new evidence (his admission). It doesn't remove the exculpatory evidence, that still remains, it adds inculpatory evidence that outweighs the exculpatory.

We'll continue to disagree on the evidence. You refuse to acknowledge Chris Frye's proffered evidence in court that will (potentially) validate the 3825 router being configured by BC the night of 7/11/08, but believe Massucci's proffer without reservation.

Nowhere did I say that I ignore Frye's. I did not see Frye's evidence. I did see Massucci's, and I saw it to be credible. What I said about Frye's evidence is that I would like to see it subjected to the same scrutiny as the other prosecution evidence. If Frye's evidence is strong and survives a thorough cross-examination, then it would likely change my opinion from NG to Guilty. That is, if it says conclusively that a 3825 router was physically in the home at the time and being configured that night, then I believe this meets a burden of proof that the rest of the evidence did not meet. However, if for example the evidence shows that a 3825 was being configured but that it was not in the house (i.e. configured remotely), then that would not meet the burden of proof, because that would not have enabled a fake call to have been generated.

What I am not willing to do is to accept Frye's evidence uncontested. We saw that much of the prosecution's evidence failed massively on cross examination. The shoes. The ducks. The necklace. The drop cloth. The bugs. The soils. The hay. The garage. The list is endless. If you just saw it from the prosecution's point of view (which, frankly, is all some people on this forum see), then you would conclude that he is guilty. When you watch the trial and you see each of these systematically discredited, the conclusion is quite different. I absolutely look forward to Frye's testimony in the next trial. If it is as I describe above, it will change my opinion. If it is more like the ducks and the necklace, then it will likely not change my opinion.

Then you point to nontestimony in the way of a partial, incomplete, and imprecise anecdotal uttering allegedly made by the eldest daughter to a family friend, which doesn't provide specific context and isn't validated. Talk about biased! I know it's difficult for you to admit this, but that isn't evidence just because you want it to be. That family friend was never called to testify.

It has nothing to do with what I believe, it is evidence. It happened. It has been reported. It was very specific. Bias is believing that it never happened, or attempting to discredit it.

However, I agree with you that due to the fact it is hearsay, there is no way to confirm what was actually said. Hence why it is inadmissible. Unfortunately, the police did not interview the oldest daughter (another example of negligence) and therefore we have no corroboration of what was actually said. The family friend was not called to testify because the evidence itself was inadmissible. Thus, while it factors into MY belief as to his innocence, it should not factor into a legal opinion.

 

[Madeleine74]

It has nothing to do with what I believe, it is evidence. It happened. It has been reported. It was very specific. Bias is believing that it never happened, or attempting to discredit it.

However, I agree with you that due to the fact it is hearsay, there is no way to confirm what was actually said. Hence why it is inadmissible. Unfortunately, the police did not interview the oldest daughter (another example of negligence) and therefore we have no corroboration of what was actually said. The family friend was not called to testify because the evidence itself was inadmissible. Thus, while it factors into MY belief as to his innocence, it should not factor into a legal opinion.

So which witness introduced this evidence in trial?

You refuse to consider Frye's proffer, which did come into court, but wasn't "subject to the same scrutiny as the other prosecution evidence," but you claim the info about the oldest daughter's statement to a family friend, which was neither brought into court nor was subject to any scrutiny whatsoever, "happened, was very specific, and is evidence?"

Are you aware no child can be interviewed by police without the permission of a parent (or in case there is no parent, legal guardian)? Do you remember the story Brad told more than once, to investigators and in his depo from the moment police came to his house, which was in evidence and part of the trial? The story in which that eldest child did not wake up, not even when her younger sister was crying for up to 15 min right next to her, was asleep until around 8:30am, was not downstairs (where her mother and younger sister were, starting around 4am), and Nancy was only wearing a long white Tshirt up until the time she left to go running around 7am? Are you aware that Brad said Nancy stayed downstairs and did not come up to get any clothes to go running, and that she found what she needed in the laundry room as he did not have to get anything for her from upstairs, and then she immediately left? And at the time she left the eldest child was in her bed (asleep) and he was holding the youngest child on his lap in his office and no one was downstairs to see Nancy actually leave? He said it was the door slamming shut and maybe her saying 'bye' or 'later,' that was his clue she had indeed left the house. And that after Nancy left to go running, he finished giving the daughter her bottle (still upstairs) and she got sleepy and he put her back into her bed, next to her sleeping older sister?

 

[oenophile]

So which witness introduced this evidence in trial?

*facepalm*

I already stated (several times in fact) that it was not admitted in the trial. That doesn't change the fact that it is evidence. It is inadmissible evidence, but it is evidence.

You refuse to consider Frye's proffer, which did come into court, but wasn't "subject to the same scrutiny as the other prosecution evidence," but you claim the info about the oldest daughter's statement to a family friend, which was neither brought into court nor was subject to any scrutiny whatsoever, "happened, was very specific, and is evidence?"

I refused to consider Frye's proffer because a) I didn't see it, and b) it was not subject to a thorough cross examination. The subject of Frye's offer is a VERY technical examination from which we are expected to draw a conclusion. The oldest daughters statement is NOT technical, it is a statement that directly contradicts the prosecutions assertions.

Are you aware no child can be interviewed by police without the permission of a parent (or in case there is no parent, legal guardian)? Do you remember the story Brad told more than once, to investigators and in his depo from the moment police came to his house, which was in evidence and part of the trial? The story in which that eldest child did not wake up, not even when her younger sister was crying for up to 15 min right next to her, was asleep until around 8:30am, was not downstairs (where her mother and younger sister were, starting around 4am), and Nancy was only wearing a long white Tshirt up until the time she left to go running around 7am? Are you aware that Brad said Nancy stayed downstairs and did not come up to get any clothes to go running, and that she found what she needed in the laundry room as he did not have to get anything for her from upstairs, and then she immediately left? And at the time she left the eldest child was in her bed (asleep) and he was holding the youngest child on his lap in his office and no one was downstairs to see Nancy actually leave? He said it was the door slamming shut and maybe her saying 'bye' or 'later,' that was his clue she had indeed left the house. And that after Nancy left to go running, he finished giving the daughter her bottle (still upstairs) and she got sleepy and he put her back into her bed, next to her sleeping older sister?

None of this changes the fact that the friend says the oldest daughter saw her that morning and described what she was wearing.

And again, I am certain that BC did not remember things exactly as they happened, just like JA, just like HP, just like every witness.

 

[Cherry]

BC going down, no address change will be in effect, watch and wait. Hope he hates every second he has to endure at said address.

 

[oenophile]

By the way, is your position that the family friend lied and that the eldest daughter never said that she saw her mother that morning, and that she never described what her mother was wearing?

 

[oenophile]

BC going down, no address change will be in effect, watch and wait. Hope he hates every second he has to endure at said address.

You mean like David Camm did?

 

[Madeleine74]

*facepalm*

I already stated (several times in fact) that it was not admitted in the trial. That doesn't change the fact that it is evidence. It is inadmissible evidence, but it is evidence.




I refused to consider Frye's proffer because a) I didn't see it, and b) it was not subject to a thorough cross examination. The subject of Frye's offer is a VERY technical examination from which we are expected to draw a conclusion. The oldest daughters statement is NOT technical, it is a statement that directly contradicts the prosecutions assertions.




None of this changes the fact that the friend says the oldest daughter saw her that morning and described what she was wearing.

And again, I am certain that BC did not remember things exactly as they happened, just like JA, just like HP, just like every witness.

Did you see the daughter & witness her statement? No? If you didn't witness it personally then what is your basis for knowing the accuracy or inaccuracy of the statement? What exactly was this statement? Was the daughter asked if she saw her mother or did she volunteer this info? Was she asked what her mother was wearing or did she volunteer this information? What time did the daughter see her mother? Had she had breakfast yet? Brad said his wife was not in running gear until right before she left and he didn't even see her in it (which is why he guessed at what she was wearing) because Nancy had found what she needed in the laundry room downstairs. Brad said at the time Nancy left the home the eldest girl was in bed, asleep. According to Brad's story (told multiple times), Nancy was only wearing a white Tshirt until right before she left to go running, which is why he didn't know exactly what she was wearing.

I refused to consider Frye's proffer because a) I didn't see it, and b) it was not subject to a thorough cross examination.

And neither was the daughter's statement. Based on your own set of standards, the daughter's statement should not be considered. It wasn't proffered, it never came into court, it was not subject to any vetting, and you didn't see it.

And again, I am certain that BC did not remember things exactly as they happened, just like JA, just like HP, just like every witness.

BC couldn't remember what occurred a mere 8 hrs after it occurred? That's when he detailed the events which started that very morning to the police who responded and then again to detectives. He was detailing the hours between when he came home from the party around 8pm on 7/11/08 and through the morning of 7/12/08 to police during the afternoon of 7/12/08. GMAB.

 

[oenophile]

Did you see the daughter & witness her statement? No? If you didn't witness it personally then what is your basis for knowing the accuracy or inaccuracy of the statement? What exactly was this statement? Was the daughter asked if she saw her mother or did she volunteer this info? Was she asked what her mother was wearing or did she volunteer this information? What time did the daughter see her mother? Had she had breakfast yet? Brad said his wife was not in running gear until right before she left and he didn't even see her in it (which is why he guessed at what she was wearing) because Nancy had found what she needed in the laundry room downstairs. Brad said at the time Nancy left the home the eldest girl was in bed, asleep. According to Brad's story (told multiple times), Nancy was only wearing a white Tshirt until right before she left to go running, which is why he didn't know exactly what she was wearing.

Again, let me ask you, are you denying that the statement ever happened?

And neither was the daughter's statement. Based on your own set of standards, the daughter's statement should not be considered. It wasn't proffered, it never came into court, it was not subject to any vetting, and you didn't see it.

How very convenient that you left out the next sentence in my response, about how the Frye testimony is a TECHNICAL analysis versus a very simple question and answer of the daughter. Do I think the evidence about the daughter is credible? Yes, I do, despite the fact that it is hearsay. Do I think the Frye testimony is credible? I do not know, because it deals with MUCH more complicated issues. Do I think the evidence about the daughter is absolutely accurate? No, I don't, and so it is not the determining factor.

But as you like to say repeatedly, it isn't just one thing, it is the whole of the evidence.

BC couldn't remember what occurred a mere 8 hrs after it occurred? That's when he detailed the events which started that very morning to the police who responded and then again to detectives. He was detailing the hours between when he came home from the party around 8pm on 7/11/08 and through the morning of 7/12/08 to police during the afternoon of 7/12/08. GMAB.

You are relying on the police notes for this, not Brad. In fact you don't know what Brad detailed to the police. They seemed to rewrite many of those notes later (remember "smelled like Downey"?). In addition, he was going through something that was rather traumatic. I wouldn't expect his memory to be perfect in that situation. GMAB.

 

[oenophile]

Regarding Change of Venue - Brad's attorneys filed a motion for a Change of Venue in August 2010 due to pretrial publicity.

By the way, that pretrial motion specifically calls out the Butterfly Fund and the coverage of the fundraising events as reasons for the requested change of venue.

 

[Madeleine74]

Again, let me ask you, are you denying that the statement ever happened?

How would I know what the statement consists of when I've never seen it and only heard of it through the forums? I can't deny or confirm anything because it wasn't presented in court and I haven't seen a legal document that gives me information. When I ask questions about this supposed "evidence," and ask the details around it, the only response back is some form of "do you deny its existence?" Where does it exist? Point me to the source.

You are relying on the police notes for this, not Brad.

Police notes? Where are these police notes that I can read, in order to rely on them? I am using trial testimony as my source as well as BC's own statements in his deposition. That's all I have available, outside of any legal documents that have been published.

 

[Madeleine74]

By the way, that pretrial motion specifically calls out the Butterfly Fund and the coverage of the fundraising events as reasons for the requested change of venue.

And, so? BC's own attorneys created pretrial publicity all on their own both through press conferences and by posting what they claimed was evidence, on their own public website, which ended up hoisting them by their own petard, as the saying goes, and was referenced by the court when their motion for COV was denied.

I dare you to walk up to 10 random people in the Cary or Raleigh area and ask them what "Nancy's Butterfly Fund" is about. You'll probably get a bunch of blank stares and a few guesses that claim it has something to do with saving or funding butterflies.

 

[oenophile]

And, so?

I dare you to walk up to 10 random people in the Cary or Raleigh area and ask them what "Nancy's Butterfly Fund" is about. You'll probably get a bunch of blank stares and a few guesses that claim it has something to do with saving or funding butterflies.

It was in the news then. I'm sure it has probably been forgotten now.

 

[oenophile]

How would I know what the statement consists of when I've never seen it and only heard of it through the forums? I can't deny or confirm anything because it wasn't presented in court and I haven't seen a legal document that gives me information. When I ask questions about this supposed "evidence," and ask the details around it, the only response back is some form of "do you deny its existence?" Where does it exist? Point me to the source.

Fair enough, you raise a valid point and I don't specifically recall the source. I will investigate.

Police notes? Where are these police notes that I can read, in order to rely on them? I am using trial testimony as my source as well as BC's own statements in his deposition. That's all I have available, outside of any legal documents that have been published.

Police relied on those notes for their testimony. The only source you have for what BC stated during the day in question is the trial testimony, and that is based on the notes. BC's deposition happened months later, and has nothing to do with your claim about what he recalled the 24 hours following NC's disappearance.

 

[Madeleine74]

Police relied on those notes for their testimony. The only source you have for what BC stated during the day in question is the trial testimony, and that is based on the notes. BC's deposition happened months later, and has nothing to do with your claim about what he recalled the 24 hours following NC's disappearance.

The only source I have for anything in this (or really any) case is what legal documents get published and made available to the public, or via hearing or reading witness testimony. In this case I get one more source -- BC's deposition where I can listen to him in his own words and have the luxury of hearing them again, should I ever need to go back for a listen. That's more than is usually available to case watchers. As such that's still more than the jury had available, as they didn't get to read the published legal documents or see testimony of any witness aside from BC's deposition in the civil custody case.

 

[oenophile]

The only source I have for anything in this (or really any) case is what legal documents get published and made available to the public, or via hearing or reading witness testimony. In this case I get one more source -- BC's deposition where I can listen to him in his own words and have the luxury of hearing them again, should I ever need to go back for a listen. That's more than is usually available to case watchers. As such that's still more than the jury had available, as they didn't get to read the published legal documents or see testimony of any witness aside from BC's deposition in the civil custody case.

Talk about changing the goalposts. You said:

BC couldn't remember what occurred a mere 8 hrs after it occurred? That's when he detailed the events which started that very morning to the police who responded and then again to detectives. He was detailing the hours between when he came home from the party around 8pm on 7/11/08 and through the morning of 7/12/08 to police during the afternoon of 7/12/08. GMAB.

Your claim is based on what BC could remember 8 hours after it occurred. The deposition was taken 3 months after it occurred. It is not relevant to your statement about what he could recall 8 hours after.

Since we don't have any video of his recollection 8 hours after, the only source is the police testimony. And that testimony is largely based on their notes. We saw, in the example of the "smelled like Downey", that the police went back and added things to their notes which were questionable in their accuracy.

Therefore, you cannot make an assessment as to BC's memory 8 hours after the events occurred. You are mostly relying on his deposition, which was three months later. Hardly the same thing.

 

[oenophile]

How would I know what the statement consists of when I've never seen it and only heard of it through the forums? I can't deny or confirm anything because it wasn't presented in court and I haven't seen a legal document that gives me information. When I ask questions about this supposed "evidence," and ask the details around it, the only response back is some form of "do you deny its existence?" Where does it exist? Point me to the source.

Here is the first legal document, in the form of the motion to compel by the defense:

http://www.wral.com/asset/news/news_briefs/2011/02/17/9132146/coopermotion.PDF

Page 6.

Note, the trial testimony related to this was not recorded due to the silliness about "national security".

I'll see if I can find more references.

 

[oenophile]

How would I know what the statement consists of when I've never seen it and only heard of it through the forums? I can't deny or confirm anything because it wasn't presented in court and I haven't seen a legal document that gives me information. When I ask questions about this supposed "evidence," and ask the details around it, the only response back is some form of "do you deny its existence?" Where does it exist? Point me to the source.

From the trial transcript, Kurtz questioning Dismukes outside of the presence of the jury:

Q. And once in your car, Clea told you that she had met with Brad that morning and taken custody of the Cooper children?
A. Yes.
Q. And that it was about 5 o'clock that afternoon when she had spoken with Bella, who was four-and-a-half years old?
A. Yes.
Q. And that according to Bella, she'd seen her mommy that day?
A. Yes.
Q. Clea told you that Bella specified that her mommy was wearing black shorts and a white T-shirt?
A. Yes

State vs Bradley Cooper, March 17, 2011, Volume 14, page 3070.

 

[Madeleine74]

Talk about changing the goalposts. You said:

Your claim is based on what BC could remember 8 hours after it occurred. The deposition was taken 3 months after it occurred. It is not relevant to your statement about what he could recall 8 hours after.

What goalposts? This isn't a game.

Explain why his statement from his deposition is fairly consistent with what he told detectives a couple or more times the day Nancy went missing: Nancy downstairs, not upstairs, starting around 4am-ish or slightly after, when they either meet in the hall or Brad brings downstairs the youngest child, where Nancy is, them taking turns holding the youngest, Nancy only wearing a Tshirt, oldest asleep in her own bed, youngest eventually getting a bottle, then upstairs with Brad and then once sleepy being put back to bed next to her sleeping sister. BC saying he did not see his wife but hearing the door slam at or slightly before 7am and assuming she left to go running. He didn't see what she was wearing when she left. Kids asleep until around 8:30am or so.