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Thursday, September 5, 2013

Bradley Cooper, Google Maps, Expert Testimony & The Right to Present a Defense

In 2006, I was living in Chelsea. One day, my wife, our friend, and I went to the Whole Foods in Chelsea. While we were in the checkout line, we spotted actor Bradley Cooper. At the time, Cooper wasn't nearly as famous as he is today. Sure, he had a recurring role on "Alias." And he had stolen "Wedding Crashers" from Vince Vaughn and Owen Wilson. But at the time that we saw him, he was still a struggling actor. His ill-fated sitcom, "Kitchen Confidential" (loosely based on the much better Anthony Bourdain book of the same name) had tanked in the ratings opposite "My Name is Earl" and "How I Met Your Mother."  At the time that we saw him, Cooper was starring in the revival of "Three Days in the Rain," with the New York Times referring to him as a "luckless lunkhead[]." Maybe the best thing that Cooper had done to that point was his role on "Jack & Bobby" as a graduate student doing his dissertation(?) on superheroes.

In any event, it was from that role on "Jack & Bobby" that my wife and our friend primarily knew Cooper, and they made me wait outside the Whole Foods with them to get a look at him while he was leaving. The whole incident was almost as embarrassing as the time that Michael Stipe hit me in the face with his scarf. But this post isn't about the R.E.M. frontman or that Bradley Cooper, but it is a post about another Bradley Cooper. And a murder. And Google Maps.

In State v. Cooper, 2013 WL 4711606 (N.C. App. 2013), Bradley Cooper, who worked for Cisco Systems, was charged with murdering his wife, Nancy Lynn Rentz Cooper. Police had seized Bradley's laptop computer and recovered temporary internet files from it. At trial,

Special Agent Johnson and Detective Chappell testified that the temporary internet files recovered from the laptop indicated someone conducted a Google Map search on the laptop at approximately 1:15 p.m. on 11 July, the day before Ms. Cooper was murdered. They concluded that this search was done by someone using the laptop while it was at the Cisco office where Defendant worked. The State's experts testified that the Google Map search was initiated by someone who entered the zip code associated with Defendant's house, and then moved the map and zoomed in on the exact spot on Fielding Drive where Ms. Cooper's body was found.

In response,

Defendant called Jay Ward (Ward) to testify concerning the incriminating Google Map files recovered from the laptop. Ward had worked for more than fifteen years in the computer field, specializing in computer network security

The prosecution then

objected, challenging Ward's credentials to testify as an expert concerning the relevant Google Map files.

 

The State focused on Ward's lack of training and experience as a forensic computer analyst. The trial court agreed with the State and, on 19 April 2011, ruled that Ward could not testify specifically about the Google Map files. Ward was allowed to give general testimony concerning the ease with which files could be altered or planted on a computer that, like Defendant's, had been left connected to the internet. Defendant argued, since the trial court did not find the methods by which Ward obtained his data to be reliable, that Ward be allowed to testify based upon the data produced by the State's forensic analysts. The trial court denied Defendant's request. Ward testified on voir dire that had he been allowed to, he would have offered his opinion that the incriminating Google Map files had been planted on Defendant's computer, and he would have further testified to the specific aspects of the files that had led him to this conclusion.

Thereafter,

Defendant immediately sought a forensic computer analyst that he could call to testify concerning the Google Map files. Defendant located a forensic computer analyst, Giovanni Masucci (Masucci), on 20 April 2011. As the court session began on 21 April 2011, Defendant gave notice of Masucci as Defendant's replacement expert. Masucci had examined the data produced by the State's forensic computer analysts, and produced a report....Masucci's conclusion was the same as Ward's: that the Google Map files had “been placed on the hard drive [and] could not have been the result of normal internet activity.” Masucci's curriculum vitae was sent to the State on 22 April 2011, and Masucci's report was sent the next day. Court was not in session on these days.
Court resumed on 25 April 2011, and Defendant attempted to call Masucci. The State objected on the basis that Masucci was not on the list of experts Defendant provided to the State before trial, nor had the State been provided with Masucci's report prior to trial, and these failures constituted discovery rules violations. The trial court again agreed with the State, and ruled that Defendant had violated the discovery statutes by failing to notify the State that he was planning to call Masucci, and by failing to provide Masucci's curriculum vitae and report prior to the beginning of the trial. As a sanction for the discovery violations found by the trial court, the trial court ruled that Masucci could not testify. Pursuant to North Carolina Rule of Evidence 403, the trial court also ruled that allowing Masucci to testify would prejudice the State, and that this prejudice would substantially outweigh any probative value of Masucci's testimony. Defendant was prohibited from calling any witness to testify that the actual Google map files relied upon by the State to connect Defendant to the site where Ms. Cooper's body was found were corrupt or had been tampered with in any manner.

After he was convicted, Bradley appealed the trial court's expert evidence rulings. The Court of Appeals of North Carolina agreed with him that the trial court erred in precluding both Ward and Masucci from presenting expert opinion testimony. With regard to Ward, the court found that

The trial court apparently believed that, because the digital data was recovered using forensic tools and methods, only an expert forensic computer analyst was qualified to interpret and form opinions based on the data recovered. The evidence on voir dire does not support this understanding of the nature of Ward's expertise. Assuming arguendo that the data Ward recovered from the forensic copy of the hard drive was suspect, neither the State nor Defendant argued that the data recovered by the State's experts was flawed—just that there was disagreement concerning the interpretation of that data. Nothing in evidence supports a finding that Ward was not qualified to testify using the data recovered by the State. Ward, based upon expertise “acquired through practical experience,”... was certainly “better qualified than the jury to form an opinion as to the subject matter to which his testimony applie[d].”

With regard to Masucci, the appellate court found that the trial court erred by precluding his expert testimony even if Cooper did not technically comply with the rules of evidence. This was because of Cooper's right to present a defense.

In the present case, the only evidence presented by the State directly linking Defendant to the murder was the evidence of the Google Map search pinpointing the location where Ms. Cooper's body was found. Evidence challenging the State's presentation of that evidence would have clearly been a “significant factor” in Defendant's defense. Defendant was barred from presenting any evidence from his own witnesses concerning the Google Map files recovered from the laptop.

 

We assume, arguendo, that Defendant technically violated N.C.G.S. § 15A–905. Though exclusion of Masucci's testimony may not have been arbitrary, we hold that it was disproportionate to the purposes this state's discovery rules were intended to serve.

-CM

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