Appeals court faults judge's rulings, orders new trial in Brad Cooper murder case

ablythe@newsobserver.comSeptember 3, 2013 

— The defense attorney for Brad Cooper, the father of two convicted in 2011 of killing his wife and dumping her body near their Cary home, rose before Wake County Superior Court Judge Paul Gessner midway through the trial and accused him of making rulings “consistently outside the bounds of prudent jurisprudence.”

Howard Kurtz, the Raleigh lawyer defending Cooper, asked Gessner to recuse himself and declare a mistrial in a case that was largely circumstantial.

On Tuesday, more than two years after that unusual courtroom exchange, the state Court of Appeals ordered a new trial for Cooper, the former Cisco employee convicted of killing his wife, Nancy.

The three-judge appeals court panel, in its unanimous decision, cited several rulings that Gessner made as the underpinnings for ordering a new trial.

The appellate judges – Linda M. McGee, who wrote the opinion, along with Martha A. Geer and Mark A. Davis, who concurred – said decisions made at trial by Gessner prohibited Cooper from putting on his best defense.

“I feel vindicated,” Kurtz, the lead member of Cooper’s defense team, said Tuesday. “The ruling was amazingly thorough – I think they knocked the ball out of the park.”

Jurors said after their decision in 2011 that prosecutors won with computer evidence that defense lawyers had tried to quash, in part because they argued that it was gathered illegally.

Gessner allowed prosecutors to introduce evidence of a Google Map search of the site where the body of Nancy Cooper had been found. The judge also ruled against the defense’s attempt to classify two witnesses as forensics experts to raise questions about evidence collected from a computer.

In the ruling Tuesday, the appeals court judges noted that the “sole physical evidence linking” Cooper to the homicide was the Google Map search. “Absent this evidence, the evidence connecting Defendant to this crime was primarily potential motive, opportunity, and testimony of suspicious behavior,” the ruling said.

Further, the appeals court panel added that “whether the error was constitutional or not,” failure to let Cooper use his experts at trial was a key error that warranted a new trial.

“[T]here is a reasonable possibility that, had the error in question not been committed, a different result would have been reached at the trial out of which the appeal arises,” the ruling states.

‘It was error’

An FBI agent had helped police examine the information on Cooper’s computer. The defense team tried to get access to details of how that investigation was done, but the FBI, citing national security risks that might result from the exposure of such information, fought that.

Gessner ruled that the agent did not have to disclose how the FBI does its analysis. That was a problem, the appellate judges said Tuesday.

“It was error for the trial court to shut down this line of questioning without ascertaining how, or if, national security or some other legitimate interest outweighed the probative value of this information to Defendant,” the ruling states.

In April, the appeals court panel spent an hour listening to arguments and asking questions of their own about what qualifications should be necessary for someone to be considered an expert.

Attorneys representing the state disputed the claims that Cooper’s defense was weakened by Gessner’s rulings. They contended the computer evidence was seized legally and that Cooper could have called others to testify to raise doubt about the evidence.

They also argued that there was an overwhelming amount of circumstantial evidence that would have led the jury to the same verdict.

Supreme Court review?

Wake County District Attorney Colon Willoughby said Tuesday that he would consult with state Attorney General Roy Cooper during the next 20 days and decide whether to petition the state Supreme Court to review the case. Because the appeals court ruling focuses on numerous constitutional issues, Willoughby said, the state’s highest court could review the decision.

Until that decision is made, Willoughby said, it is too early to know how the Wake County prosecutor’s office will proceed toward a new trial.

The murder trial in the spring of 2011 was described by longtime courthouse officials as one of Wake County’s longest, with nearly 36 days of testimony and a note from the jury toward the end of the trial asking the judge to instruct the lawyers to use their time more judiciously so that jurors could return to their lives.

For several weeks, prosecutors called numerous friends and family of Nancy Cooper to the witness stand to describe the crumbling relationship between her and her husband.

Nancy Cooper, the more outspoken of the two, had told many people that she wanted out of her marriage and planned to return to her native Canada with her two children.

Trial testimony

Friends described Nancy Cooper as an emotionally battered wife, a former career woman in Canada who had to rely on her husband for her financial well-being because she did not have the necessary documents to work in this country.

Friends testified that her husband gave her an allowance but cut off her access to the couple’s bank accounts. Defense attorneys contended that Nancy Cooper spent beyond the family’s means and that her husband instituted financial controls to protect their assets.

Cooper, 39, was listed as being in Central Prison on Tuesday, according to the state Department of Public Safety’s public information site.

Kurtz said Tuesday that he hopes the Wake County district attorney and state attorney general will not challenge the appeals court decision.

“I would like to think they are wise enough to interpret the decision as the right decision,” Kurtz said.

Blythe: 919-836-4948

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