Cooper Case

State v. Brad Cooper

1. Current Status

Howard Kurtz of Kurtz & Blum, PLLC, and Robert Trenkle of Edwards & Trenkle represented Brad Cooper who was accused of murdering his wife, Nancy Cooper. Brad has consistently and adamantly declared that he is innocent of this horrible crime. Despite our best efforts throughout a 10 week trial, the longest non-capital murder trial in Wake County history, on May 5^th, 2011, the jury found Mr. Cooper guilty of first-degree murder. That conviction was immediately appealed to the North Carolina Court of Appeals. We estimate that this appeal will take no less than 18 months.

Unlike a trial, where a jury decides whether or not they believe a defendant is guilty, an appeal focuses on the decisions made by the judge throughout the course of the trial. If the Court of Appeals finds that the trial judge made substantial errors that likely would have affected the outcome of the case, they may choose to order a new trial.

According to the letter sent to the media by the jury foreman, Andy Gilbert, the primary testimony that drove the jury's verdict came from Officer Chappell and Special Agent Johnson. All of their testimony surrounded one piece of evidence, specifically Brad Cooper's laptop computer. They testified about files found on the computer that they assert were created the day before Nancy Cooper disappeared and show the precise spot where Ms. Cooper's body was found. They claim to have found no evidence suggesting that anyone tampered with the laptop. However, neither agent was able to explain why protocols were not followed by police, why one complete category of timestamps on all of the allegedly incriminating files were invalid, why there was no cookie that corresponded with the visit to Google maps, as well as a host of other anomalies.

Since the prosecutor successfully argued to the judge that it would jeopardize national security if the FBI had to turn over the complete results of the tests that they performed on Mr. Cooper's laptop, it was impossible for the defense to challenge or use their results in any way. Instead, the State and the FBI turned over only those results they chose to share.

Furthermore, the first expert witness tendered by the defense who was to address specific evidence proving that those files had been placed on Mr. Cooper's laptop, and that the laptop was therefore completely tainted, was disallowed as the court considered him to be a network security expert as opposed to a computer forensics expert. The court held that Jay Ward's expertise as a network security expert as opposed to a computer forensics expert precluded him from even reviewing data that was provided directly from the FBI.

The second expert witness tendered by the defense was specifically a computer forensics expert, Giovanni Masucci, who simply reviewed and adopted Mr. Ward's report as he believed it to be spot on accurate. However, since it was anticipated that Mr. Ward would provide the testimony about tampering on the laptop, Mr. Masucci was not on the defense witness list. As a result, the Judge ruled that Mr. Masucci's testimony would be too prejudicial to the State. He made this ruling even though prosecutors and the FBI computer forensics analyst were familiar with the substance of his testimony because they already had Mr. Ward's report. Though the judge had other options, such as a brief continuance so that the state could prepare for Mr. Masucci's testimony, he instead prohibited the jury from hearing that testimony at all. In addition to supporting Mr. Ward's conclusions that someone had tampered with the laptop and that files had been planted on the machine, Mr. Masucci also opined that a network security expert, specifically Mr. Ward, was imminently qualified to interpret the exact data that the judge had precluded him from discussing.

We respectfully disagree with a number of the Court's rulings. Without the ability to directly address the only substantive alleged evidence against Mr. Cooper, we were fundamentally impaired from presenting a defense. Because of these and other rulings, we are both hopeful and confident that the North Carolina Court of Appeals will grant relief and order that Mr. Cooper be afforded a new trial.

2. Community Response

In the days since the verdict, my firm has been flooded with e-mails, phone calls and letters of support from members of the community. We have experienced an outpouring, the likes of which I have never known in my 19 years of practice. We have received over 100 emails alone from all over the U.S. and Canada; many offer pledges of support. I can't possibly express adequately how vindicating it feels to know that so many average people were motivated enough to watch the trial and understood enough of what they saw to be troubled by the trial itself, the media coverage and the verdict. Moreover, those same people both cared enough, and were courageous enough, to share their feelings.

We are grateful for all of the support that we have received. Contrary to baseless accusations that have materialized since the trial, at no time did our team attempt to sway public support by posting on WRAL's web board, GOLO. The community support that Brad has received was entirely organic and was the result of people being able to watch the trial online. At times we issued official statements to the media and we stand behind those statements. We did not make anonymous comments on the internet in any sort of misguided attempt to sway public support. Since July of 2008, tens of thousands of comments have been posted on this case. Some of those comments were helpful, some hurtful; some voiced praise and some criticism. Though we monitored these comments and did our best to learn from them, we never manipulated them. The sentiments expressed by people posting on the web were frequently insightful and occasionally inaccurate, but they were never ours. Nonetheless, after a long and difficult day in court, it was heartening to find out that others had perceived the day's events as I had and that they cared enough to voice their support publicly.

Amongst the most stalwart supporters is a group who recently launched a website, www.justiceforbrad.com. It is my understanding that the site is still in its nascent stages and that when finished, it will document different issues that arose in the trial as well as provide a forum for people to discuss matters related to the case. Given all of the requests that we have received asking how people might donate to Brad's defense, the site will also give people the opportunity to make financial contributions. Supporters even created videos of relevant portions of trial testimony and legal arguments to illustrate a variety of points. Though the site is not affiliated with Kurtz & Blum in any way, and the opinions expressed there may not reflect the opinions of members of our firm, it is nevertheless my hope that it will serve to educate and motivate people as to what happened in Brad's trial so that it can be prevented from occurring again.

3. Unanswered Questions

If you believe that you may have information that could be relevant to Nancy Cooper's homicide, we implore you to come forward and speak with us. Please call our offices at (919) 832-7700 and tell the receptionist that you have information about the Cooper case. To contact us via email, please use the form on the contact page of our website at www.kurtzandblum.com.

Even if you have already spoken with the police, we ask that you share your information with us as well. Multiple people provided significant information to the Cary Police that was ignored until those people brought their information directly to us. We are extremely grateful to those people who have stepped forward.

4. Well Deserved Recognition

First and foremost, I would like to thank my co-counsel, Bob Trenkle. Bob was a pleasure to work with and his talents in the courtroom were simply exceptional. I could have had no finer ally in this battle.

Next, I would be remiss if I did not take this opportunity to thank a number of people who volunteered a great deal of time and energy to maximize the probability that justice would prevail. Though some were partially compensated, most donated the majority of their time for the cause.

Case Preparation and Presentation

The complete file in this case was well over 20,000 pages. In addition there were almost 200 CDs and DVDs and 10 computer hard drives. There were hundreds of witnesses, most of whom provided multiple versions of their statements. Issues of significance in the case ranged from the minutia of the Coopers' daily life all the way through the technical mechanisms of DNA extraction. Knowledge of every possible area of forensic expertise was required. Organizing and integrating this volume of information proved to be an almost insurmountable task.

Only the relentless dedication of two law students and one young lawyer allowed us to master this volume of information.

The first person deserving of mention is Casey Francis. For over a year, Casey volunteered the majority of her time putting in grueling hours on every facet of the case. Her drive and diligence were unparalleled. Casey coordinated with experts and other witnesses, researched computer forensics and spent hundreds of hours in the Wake County Jail. She also ensured effective implementation of the technology in the courtroom. And Casey did all of this while enrolled full-time in her final year at UNC law. Within a few short months, we look forward to welcoming her as a new member of the North Carolina State Bar.

Casey's combination of raw intellect, legal acumen and computer expertise made her contribution to the defense absolutely invaluable. And when Casey found that she alone had too few hours in the day to accomplish all of the tasks that were asked of her, she graciously volunteered the services of her husband, Charles Francis, who was also of tremendous value in the lead up to trial.

Another law student whose contributions cannot be adequately summarized and to whom we are eternally grateful is Natasha Richardson. For almost 2 years Natasha volunteered the majority of her time shuttling between the office and the jail. Natasha imposed organizational structure upon documents that seemingly defied organization. She also assisted in the drafting of motions and, like Casey, was a full-fledged and highly valued member of the defense team. Again, none of us are particularly certain how it is that Natasha was able to balance her school work with her tremendous responsibilities in Cooper.

Unlike Casey and Natasha, Kellie Manette is a practicing attorney with the Durham-based organization known as the Fair Trial Initiative or FTI. Immediately prior to trial Kellie's funding was entirely expended. As a result, Kellie asked her boss, Mark Kleinschmidt, what she needed to do. We are indebted to Mark for his simply telling Kellie that FTI is an organization dedicated to ensuring that justice is available to all people, not just those with resources. Mark allowed Kellie to continue working full-time through the duration of the trial.

Kellie, like Casey and Natasha, contributed in too many ways to list. She single-handedly took care of the logistics required for hundreds of witness subpoenas and catalogued hundreds of pieces of evidence that were introduced during trial. She actually mapped every single fact into one massive database so that information could be quickly accessed. Kellie also assisted with the drafting of motions and in the preparation of witness examinations.

Kellie's intern, Kelli Ganz, was also extremely helpful shepherding witnesses and Tamara Crepet, a previous fellow with FTI, also helped with legal research and drafting.

Exhibits

All of the exhibits that we presented during trial were designed and prepared by Mark Valentine, owner of The Visual Advantage. Mark made himself available to us at all times to discuss presentation strategy. His insights were highly valuable and his work product was impeccable. When Mark first offered his services, we had no idea how integral a member of the defense team he would become. His personal contributions to the defense effort were more than we had any right to expect. The exhibits he produced were amazing.

Computer Forensics

Detection of anti-forensics techniques, techniques used to intentionally mislead forensic examiners to cause them to form inaccurate conclusions, requires a great deal of computer expertise and technical sophistication. It is well beyond the scope of most forensic examinations and beyond the capability of most forensic examiners. Neither The Forensic Toolkit (FTK) nor Encase, the two leading software packages for computer forensics, evaluate files for inconsistent or invalid timestamps or even logical inconsistencies in general. The vulnerability of these programs has been known for quite some time yet they are still incapable of identifying files on which timestamps have been altered.

Casey Francis and I are both possessed of considerable technical skill sets. However, given the complexity of the evaluation required, we embarked on a quest to find the best and brightest expert possible. We consulted with true titans of the computer security field in an attempt to identify such an individual. After describing the anomalies that we ourselves had found and after pinpointing the type of anti-forensics detection we required, we were given the name Jay Ward without reservation. Jay's credentials were impeccable and his expertise unassailable. He could not have been recommended more highly.

And so it was that Casey and I arranged to meet with Jay. After a lengthy explanation of our own findings and after we detailed the type of evaluation that would be required of him, Jay readily accepted the challenge. Not only did Jay agree to evaluate the hard drive along with the FBI's report on that drive but he agreed to do it without compensation.

Jay likely spent hundreds of hours evaluating Brad's hard drive. He reviewed each file individually. One by one Jay assembled the data as if he was putting together the pieces of a puzzle. By the time he was complete the picture was quite clear. Jay Ward had independently come to the conclusion that someone had tampered with, and planted files on, Brad's computer.

As you know, Jay was never allowed to testify as to his findings. He was never permitted to testify to his conclusion that files had been planted on Brad's laptop. We will never be able to fully repay Jay for the laser-like focus that he applied to that hard drive. There are few computer experts with the skill or insight to identify and explain what was done to Brad's laptop. It would be impossible for me to adequately express the gratitude I feel toward Jay for willingly and selflessly taking on an unpopular cause simply because he believed it was the right thing to do.

Once the judge had ruled that Jay Ward would not be allowed to testify as to his conclusions based upon data that the FBI themselves provided, it seemed unlikely that we would be able to find a forensic examiner with the credentials, technical expertise and ability to immediately dedicate a great deal of time to interpret and verify the information that Jay Ward developed. Luckily, he found us.

Giovanni Masucci is a well respected and renowned computer forensics investigator. In fact, he frequently assists and teaches law enforcement. Giovanni makes it a part of his job to keep up with cases that might be significant from a computer forensics perspective, so naturally he had followed Cooper because of the central role of computer forensics in the case. At the point where Judge Gessner ruled that Jay Ward would not be allowed to testify as to his opinions regarding data that the FBI themselves had provided, Giovanni immediately contacted me and offered his assistance.

Over the next several days, frequently working late into the evening, Giovanni examined the Cooper hard drive and independently verified the information that Jay Ward had included in his report. Giovanni did this knowing that he had no possibility of being paid for his work. He also knew that it would be wildly unpopular to testify that law enforcement had failed to follow protocols and that data had been planted on the computer. Giovanni Masucci did this because he is a true professional who believes that computer forensics, done properly, can be extremely valuable and if done improperly they can have catastrophic consequences.

It was a privilege to work with Giovanni on this case. Between his report and testimony and those of Jay Ward, there should be no doubt that files were intentionally placed on Brad's laptop to make it appear as if he had searched the area where Nancy's body was found.

Investigation

Richard McGough and Etta Blankenship both assisted with the factual investigation of the case and both put in time far beyond that for which they were compensated. Gary Richardson volunteered his time and services. We were lucky to have them.

Legal Preparation

The Appellate Defender, Staples Hughes, personally spent vast swaths of his time assisting us with issues and drafting motions. Amos Tyndall and Mark Edwards helped us with witness preparation. Lynn Prather, Debbie Sandlin, Jonathan McGirt and Seth Blum all helped with editing and strategizing.

My roommate from Gerry Spence's Trial Lawyer's College, Paul Henderson, along with his new bride, Connie Taylor, both provided tremendous assistance working through themes and language for both opening and closing.

It is because of the support of such great attorneys that Bob and I were able to meet the State's considerably greater resources.

General Support

The staff of Sandlin & Davidian pitched in every way they could. Similarly, the staff of my own firm, Kurtz & Blum, worked above and beyond their normal duties to grapple with a case that consumed all of my time for almost three years. My office manager, Byron Jennings, worked nights and weekends to ensure that we were prepared. Without all of their support, we wouldn't have had any chance of meeting the tremendous resources leveraged by the State.

Benefactors who Shall Remain Anonymous

In addition to those people named above, there are a number of other individuals who contributed freely and substantially of their time and expertise. However, due to their jobs or other concerns, it would be inappropriate to list their names publicly. Nonetheless I do hope that they recognize the value of their contributions as well as the depth of gratitude we feel for their selfless assistance.