Murder Case Prosecutors Claim 'National Security' To Stop Questions About FBI Examination Of Google Maps Search
from the coverups.gov dept
A Google Map search is seemingly the only piece of evidence tying former Cisco engineer Brad Cooper to the the murder of his wife, Nancy. According to his testimony, Cooper was at home with the couple's two daughters at the time his wife was strangled in a nearby park.
Nancy Cooper disappeared on July 12, 2008. That same day, Brad Cooper was questioned by local law enforcement. During the next couple of days, he consented to a search of his house and vehicle and turned over a pair of his wife's running shoes for dogs to track her scent. On July 14th, a body was discovered. This was confirmed to be Nancy Cooper the next day. Brad Cooper turned over the house to investigators that same day, moving out to "preserve" the house itself as evidence. He left behind his computer, which was still connected to the internet. This stayed on for 27 hours before investigators removed it.
Here's where it gets interesting. (An admittedly callous way to look at a situation where one person is dead, one is headed to jail and two kids are effectively parentless…)
The most damning evidence gathered by investigators (working with the FBI) was a Google search showing the exact spot where Nancy Cooper's body was discovered, supposedly performed by Brad Cooper the day before she was killed. This being the only evidence is a fact, rather than conjecture. It's acknowledged in the appeals court's decision which granted Cooper a new trial. [pdf link]
Prosecutors pressed hard with this discovery, coupling it with the fact that Cooper and his wife were observed arguing at a party the night before she vanished. The real story about this supposed search may never come out. Cooper pled guilty to reduced charges earlier this week, after being granted a new trial on appeal. Perhaps Cooper actually did murder his wife, but the key evidence being used against him was severely questionable, enough so that he was awarded another chance to fight the charge.
The 56-page opinion granting him a new trial details the previous court's unconstitutional "abuses," which led to a guilty verdict.
Cooper's defense attacked the supposedly damning search, alleging that it had been planted on the computer by investigators. Their first witness could likely have offered testimony indicating the search had been planted but the State called into question his expertise as a forensic expert and his testimony was prohibited by the court from covering this topic.
Cooper's defense tried to bring in another witness, one more specifically-trained to testify on the specifics the court was demanding. This last-minute replacement, who had reached the same conclusion as the previous expert (that the search had "been placed on the hard drive [and] could not have been the result of normal internet activity"), but was prevented from doing so when the State objected to this "violation" of discovery rules (i.e., witness and testimony were not presented to the prosecution before the trial began).
The appeals court disagreed with the previous court's dismissal of the first expert witness. It argued that this witness was specifically trained to discover computer tampering, something a planted search result would fall under.
The Google Map files recovered from Defendant's laptop were perhaps the most important pieces of evidence admitted in this trial. We hold that the trial court abused its discretion in excluding Ward from testifying, relying on the State's own evidence, to his opinion that the Google Map files recovered from Defendant's laptop had been tampered with.The appeals court also found that excluding the second witness because of discovery violations was also unconstitutional, noting that using procedural issues to deny the defendant a chance to defend against the single, most important piece of evidence is a deprivation of due process.
[...]
We hold, whether the error was constitutional or not, that erroneously preventing Defendant from presenting expert testimony, challenging arguably the strongest piece of the State's evidence, constituted reversible error and requires a new trial…
In light of the lack of willful misconduct on the part of Defendant, the rational reason presented for failing to inform the State before trial that Defendant would be calling [the new witness], the role of the State in having this situation arise after the trial had commenced, the fundamental nature of the rights involved, the importance to the defense of the testimony excluded, and the minimal prejudice to the State had the trial court imposed a lesser sanction – such as continuance or recess, we hold that imposing the harsh sanction of excluding Masucci from testifying constituted an abuse of discretion.The third key issue leading to Cooper being awarded the new trial is the most interesting -- a motion made to limit discovery with assistance from the FBI. Cooper's team tried to get the State to turn over information related to the means and methods used during its forensic search of Cooper's computer and found itself being denied on "national security" grounds.
The State filed a motion in opposition, arguing that there exists "a law enforcement sensitive qualified evidentiary privilege" which should act to prevent discovery of these items, "because such disclosure could lead to the development of countermeasures to FBI investigative techniques. Such countermeasures could defeat law enforcement's ability to obtain forensic data in criminal cases." The State also argues that this information was protected as "work product."The trial court agreed.
The trial court found as fact "[t]hat the FBI's Standard Operating Procedures and policies are the same techniques and tools that are used in counterterrorism and counterintelligence investigations[.]" The trial court concluded that "under the provisions of N.C. Gen. Stat. §15A-903, patterned after Federal Rule of Criminal Procedure 16, the disclosure of the information sought by... Defendant would be contrary to the public interest in the effective functioning of law enforcement[,]" and that "under the provisions of N.C. Gen. Stat. § 15A-908[,]" disclosure of the information would result in "substantial risk" of harm to "any person, including the citizens of this State, of physical harm."As the appeals court pointed out, there was no reason to completely deny discovery. The documentation could have been reviewed in camera for any potential national security issues, or allowed certain redactions to be made. It also pointed out that even the FBI's stated national security concerns don't necessarily preclude discovery.
Even in the face of a compelling State interest in keeping records confidential, due process might compel discovery, depending on how material the records are to a defendant's defense.In this case -- with the "sole piece of evidence" being a questionable Google Maps search -- discovery was extremely material and possibly exculpatory. But the trial court wouldn't even allow the defense to ask whether revealing the forensic method used to "recreate" the map search would have national security implications.
MR. KURTZ: Well, Judge, there is potentially a piece of information that exists on Mr. Cooper's computer that could say definitely that this material was planted, absolutely definitive. I may be wrong. Special Agent Johnson's testing may indeed be that it all has the exact same millisecond all the way across. I don't think I'm wrong. Now, one way or the other, whether it's having a -- a test done on a Vista machine now and seeing what it -- what it actually shows or giving us access to the original test data, which I don't believe has any national security ramifications since it deals with a Google Map test. One way or the other, we should be entitled to this information as it could be tremendously exculpatory.Further on, Cooper's defense presses the issue further, veering into exasperated sarcasm, only to be shut down again.
THE COURT: Upon reconsidering this issue about this in-court test, pursuant to Rule 53-403, I'm going to sustain the objection and exclude any testing in Court because of the differences in the equipment and the statements made by this witness that this is not the appropriate place to do it. We need to bring the jury back in. And regarding the national security issue, that is a matter that we have already ruled on. It is something I have already dealt with.
MR. KURTZ: But, Your Honor, there is a witness on the stand that can answer specifically whether this is an issue of national security. And I'm not even going to be allowed to ask that question?
THE COURT: I believe I've already determined, because of the rules of the -- and the discovery process that you are not entitled to get those things.
MR. KURTZ: So my understanding is, the -- the rules and the discovery process, we're hiding behind national security on an issue where we could get a clear answer from a witness that this is not in fact a national security issue. And we're talking about a piece of information that could be exculpatory to Mr. Cooper.
THE COURT: It's the methodology that they used, I think, that falls under the security issue, but –This shut-down of discovery was the third factor prompting the decision to grant Cooper a new trial. Not that it matters. As stated earlier, Cooper has opted to plead guilty, perhaps because the lighter sentence could see him freed in another six years or so, as well as possibly give him the chance to be visited by his family members. It may also be that his new trial was being handled by a public defender who wasn't familiar with the details, rather than his previous legal team. There are a lot of factors to weigh, and even innocent people have been known to cop a plea rather than keep on fighting. It's been more than six years since Brad Cooper was arrested. He may spend less time in jail than he has fighting these charges.
MR. KURTZ: But if I could ask Special Agent Johnson if he has any national security concerns related to that methodology, we might be able to determine that this one particular test is a legitimate one to be disclosed, that it will not actually disclose the missile codes.
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THE COURT: The objection is sustained. I'm not going to allow further questioning in this line or any in-court testing of that computer.
None of the above is meant to imply that Cooper is definitely innocent, but the key piece of evidence is very questionable. Even without the FBI's "national security" intercession, the State has been very reluctant to turn over any information about its examination of Cooper's computer. An anonymous blogger who has been tracking this case notes that those who examined the computer made two different statements about the presence of a "cookie" verifying the Google Maps search.
Cooper's computer contained cookies for every day except the day the search was to alleged to have occurred. The forensic examination of the computer turned up no evidence of the cookie being deleted, as testified by the FBI's Agent Johnson. It simply wasn't there. The FBI could have subpoenaed Google for the information regarding this search but never did, even though it requested other information from the search giant.
Agent Chappell, on the other hand, offered up two different stories in court documents. In the report stating that the FBI had found no evidence that Cooper's computer had been tampered with, he says that "we have an index.history.dat file the week of 7/11 that corroborates the visit to maps.google.com and a cookie for the visit."
But in his testimony, he states the opposite. Chappell was unable to find the cookie corroborating the visit in "allocated or recovered deleted." In fact, Chappell could find "nothing from this side."
Futhermore, it appears law enforcement may have attempted to "wait out" Google's privacy policy, which states that information is only retained for 18 months.
In May ’09 …. 10 months after the crime, Howard Kurtz, Brad’s defense attorney contacted Agent Johnson and asked him if he could obtain a copy of the hard drive and Johnson informed him that he was finished and that he could pick up a copy that day. Hours later, Detective Daniels contacted Brad’s attorneys and informed them that ADA Howard Cummings would not release the hard drive to them. No reason was given, no timing was given. They wouldn’t receive it until after the privacy policy had expired, making it too late to ever verify the search through Google cookies. Because they received the Defense “preservation of evidence” letter, the prosecution knew that they would miss this privacy deadline.There's more. According to the defense's examination of the hard drive, dozens of files were altered during its stay with local law enforcement. A police officer charged with recovering information from Nancy Cooper's Blackberry destroyed it instead, possibly inadvertently. This happened nine days after the preservation order in 2008. The defense wasn't informed of this fact until shortly before the trial began in 2011.
But in the middle of it all is the FBI. While the FBI may not have tampered with Cooper's computer, the simple fact is that any law enforcement agency can ask for the FBI's help in matters like this and use the feds' "national security" shield to withhold certain information from the defense. The appeals court chastised the trial court for indulging the FBI's secrecy, but many, many courts will swiftly defer, even if it means the withholding of possibly exculpatory evidence. That's the very troubling side effect of the FBI's dalliance in national security, something it has focused more and more of its efforts on over the past several years. It can assist law enforcement, like it always has, and use its "higher calling" to shroud itself and those it helps in secrecy.
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Filed Under: brad cooper, doj, evidence, fbi, google maps, murder, national security, search
Reader Comments
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The government can freely spy on you because of national security.
They can freely share information they've gathered from spying on you with local law enforcement.
Local law enforcement can enter your home on reasonable suspicion of underage drinking.
Local law enforcement can then arrest you for something discovered in your home completely unrelated to underage drinking (whether it's legit or planted)
Local law enforcement can then tell the courts whatever they want and it's taken as gospel truth because an officer's word is more truthful than video or audio recordings (if any exist).
Local law enforcement are then able to refuse access to any and all evidence as national security.
And even if you're innocent, you're guilty because you'll spend more time in jail trying to fight than to accept a guilty plea.
JUSTICE EVERYBODY!
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Please make that note... America has been overrun by leftist cowards and illegals seeking government titties to suck on.
I would pick up my gun and shoot this nation back to prosperity but I have other priorities to deal with as a Christian. I do however try to vote in people that would stop promising the losers all of my money but that trick does not appear to be working.
Meanwhile over 1/2 of the other fellow Christians of mine loved Bush and the DHS more than their own liberties... so my rights are also under constant assault. It has been extremely hard to get them to use their brains for something other than dogma and fear.
Caught between idiots and mindless zealots I am.
Whether I turn left or right I find nothing but greedy assholes that have no idea how humanity truly operates and this time of relative peace has made them blind to the perils of war and what creates it.
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I'm not getting much of any of that from your words.
Politics are of the world. Your money and property are treasures on earth. Your desire to shoot people isn't loving your neighbors or your enemies. I'm not getting any peace, hope, and love from your words.
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So tell me... you must think that all the Christians whom fought to create a nation of liberty were not being Christian?
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How about - murder is wrong and I don't need a deity to tell me that?
I stopped being a Christian 14 years ago, so that ship has already passed. The Flying Spaghetti Monster can come whenever he likes and smother us in the great apocalyptic tomato sauce of doom.
I don't have enough information regarding the religiosity of people who have been dead for hundreds of years and it doesn't matter because they couldn't change if they wanted to now. My opinion on that topic doesn't and shouldn't matter to anyone else either.
I just find it difficult to respect self-proclaimed Christians who don't actually even attempt to reconcile their earthly, selfish, hypocritical behaviors and statements with their supposed beliefs.
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Why because you said so?
Might makes right... its a law that is irrefutable. Try doing something wrong and see what happens. People WITH GUNS will come to stop you. Society has and will always be ruled by force regardless of your ignorant fantasies! That is the LAW!
You like most others, including Christians, know nothing of Christianity. People go to church but they learn nothing.
Seeing they will see and not perceive, hearing they shall hear and not understand.
All that is necessary for evil to prevail is for good people to do nothing. When evil comes with a gun, are you seriously saying the good guys or Christians for that matter are not allowed to have guns to stop evil? You must then believe that all the founders of this nation to be nothing short of evil too?
Jesus himself walked with disciples that carried WEAPONS!!! Did he rebuke them? No He did not, He did mention that those that decide to live by the sword would die by it. He did not call them out on sin or tell them they would perish in hell for it... of course unlike you whom seem to know so much.
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"Might makes right" doesn't mean what you think it means. "Might makes right" means that if you have enough power and force (i.e. weapons), what you say is right is right because you can kill or coerce everyone else to accept your definition.
Your argument could be used to justify the genocides carried out by any dictator in the history of the world.
Now tell me about Christianity as you understand it and who Jesus would have mass murdered...
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Question: What married couple hasn't been observed arguing at least half a dozen times a year? It seems certainly within the realm of possibility that a couple of those arguments would occur around the time that something unfortunate happens to the husband or wife.
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The butler did it.
The fact that water is wet is compelling evidence to cops.
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Re: The butler did it.
How we shut it is a matter of National Security though...
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Re: The butler did it.
In fairness to the cops, the reason for this isn't because the spouse is the most convenient suspect available. It's because, statistically speaking, the spouse is the individual most likely to have done it.
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If the cops aren't doing their job well, then the problem is not that they put the spouse on their first "most likely to have dunnit" list, the problem is that the cops suck at their job.
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Ugh, me and my poor editing skills. This should be "If the spouse is guilty, then they'll be apprehended that much sooner."
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Look at it another way: Are blacks the most violent because they make up majorities of arrests and prison sentences, or is it that they're unfairly targeted due to the fact that they are the largest population in prison?
Downward spiral, spiraling faster downward...
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It makes me feel so nationally secure.
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A little birdy told us he's guilty
there exists "a law enforcement sensitive qualified evidentiary privilege" which should act to prevent discovery of these items, "because such disclosure could lead to the development of countermeasures to FBI investigative techniques. Such countermeasures could defeat law enforcement's ability to obtain forensic data in criminal cases."
That's ridiculous. At some point in history, the same argument could be used to block disclosure of any evidence gathering methods - for instance, how fingerprints and DNA are obtained. Evidence that is not allowed to be fully examined by both parties needs to be thrown out.
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Re: A little birdy told us he's guilty
"to be informed of the nature and cause of the accusation"
They won't tell him how the information was found.
"to be confronted with the witnesses against him"
They won't let him examine the evidence.
"to have compulsory process for obtaining witnesses in his favor"
They dismissed TWO of his witnesses and disallowed the admission of their testimony. AND stopped him from obtaining evidence to prove his innocence...
This is so incredibly disgusting.
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This judge needs to be fired.
Now, am I to take it that the judge in this case is an incompetent? Does he routinely preside over a kangaroo court?
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Re: This judge needs to be fired.
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Moral of the story. Never consent to a voluntary search, especially if you're innocent. Always encrypt your hard drive.
You'd think the above would help you, but in the land of parallel and falsified construction. Rogue agencies will just reformat your encrypted hard drive with the evidence they desire.
Once in court, national security will prevent planted evidence from being challenged.
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1. They would have gotten a search warrant anyway, no doubt about it.
2. They would almost certainly try to make him turn over his encryption key and hold him in contempt until he did.
Yeah, I know that encryption keys as a matter of Fifth Amendment protection is not settled yet in the U.S. (turnover of keys is required in England, don't know about the rest of the UK or Europe), but does that really matter when you're sitting in a jail cell for contempt? Good luck getting that to the Supreme Court for a final rule...
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Digital forensics black magic
Forensic examination of digital evidence is not black magic. (If you look at these eight bits with your old, busted tools, they read "A", but with my new hotness tools, the same eight bits read "B". The only way that would be true is if one of the tools was actually broken, something a defendant should be able to test.)
The difference in tools and techniques used is primarily determined by ease of use, training, budget, speed of examination, etc. The only area I can think of where the FBI's argument might be valid would be details of circumvention of security measures (like drive or file encryption), but even in that case, if the defendant knew what he used for encryption, he would also know that it had been circumvented and that method was cracked or improperly implemented.
In general, security by obscurity is not security at all. If a technique used to examine evidence is not open to inspection and evaluation, the results should be inadmissible in court. It would grieve me to see a murderer go free because of a weakness in the tools we use to uncover evidence in complex cases, but it would grieve me more to see innocent people railroaded into convictions with no reasonable means for defense.
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But the LAST THING I would agree to do in either situation would be to grant the police free license to roam about my house at will.
All too often the police pick a superficially likely suspect and then simply start building a case against that suspect while ignoring all evidence pointing elsewhere.
And the more wins, er...convictions they score the more points they earn which gain them promotions, benefits, higher salary, status with their peers and so forth.
Never voluntarily give the police access to anything no matter how obviously innocent you believe that you are.
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Parallel Construction perhaps?
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decoding the technical details
what is an expert?
Because it is so common now, computer forensic experts can be specifically licensed to do forensic work after having taken an accredited course using some commonly accepted forensic tool. You have to have the stupid license to be an expert. You could be the guy who designed the file system, knows every detail of the OS, and is familiar with all the network protocols but if you haven't taken a week-long course and earned a certificate in computer forensics you can't testify as an expert.
Top secret FBI investigation methods:
Here, the FBI guy performed a test to recreate timestamps on a set of temporary internet files. The reason is to confirm that the actual timestamps for a Google Map search from Cooper's laptop are reasonable and not files planted on the computer at some later time. I am really trying to think hard as to what sort of important secret is being protected here, but I am coming up empty. The original court's rationale for restricting this evidence is completely bogus.
Forensic mistakes by the police:
The computer should have been checked immediately for anything useful that would be changed (e.g. main memory, internet connections) once it was shut down. Instead, the computer was left in the house, connected to the Internet, for 27 hours. It was not in Cooper's physical custody and it was a machine that belonged to Cisco and, supposedly, only Cisco IT had a password for an administrator level account. This left the chain of custody uncertain even though the police had physical custody. The mysterious altered files could easily be due to internet connection activity including automated updates, or a Cisco IT guy, or Cooper himself. Intentional planting of evidence is not necessarily indicated nor is it ruled out. This uncertainty is precisely what a forensic examiner and detailing chain of custody is supposed to prevent.
Missing cookies:
It's not hard to identify and delete a particular cookie on a computer. It is a lot harder to delete a portion of the temporary internet data. What I am not sure about is if that deleted cookie can be recovered or it is quickly overwritten by a new cookie or something else entirely if an entire sector has been freed up. My hunch is that a cookie, once deleted, may not be recoverable if other cookies are added later which is the case here. The other side of the defense argument is that it is impossible to spoof a Google cookie and so a fake one cannot be planted on a machine. I don't think that is true. At any rate, not get the cookie from Google's own server logs was a major mistake for the prosecution. I am not sure the defense couldn't have done it's own inquiry given the laptop's IP address, date, and time.
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Blind to the world their creating
I wonder if they ever had a "moral high ground"
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EVIDENCE against COOPER
It is well documented, thru witness testimony of good friends, ppl close to the coopers, Brad hated his wife,,, he controlled the money,, and did not like her painting or doing anyting to earn money,, the guy is a psycho - and before she died - she to told everone she knew he was going to kill her,
Lets just throw all of that evidence out - toss it because it does nothing to indicate whether or not brad ad any chance. reason to kill his wife,
This guy was getting left behind- she was leaving and he woukld have to pay for her and the kids,,, he knew he was ruined soi e did what all these idiots do,,, lets just hopoe he does not get away with murder,,, like Abaroa did ( NORT CAROLINA) and it looks like JASON YOUNG too ( NORTH CARO(LINA) nand now BBrad Cooper ( NORTH CAROLINSA) this is a joke - north cariolina,,, please, get ur act together,
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I'd prefer to see the DoJ actually make difficult choices
I recall once we believed it was better that the guilty walk than we convict based on poisoned fruit, given that such convictions only leads to more use and abuse of the (once) poisonous methods.
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