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.

[...]

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…
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.
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.

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.
Further on, Cooper's defense presses the issue further, veering into exasperated sarcasm, only to be shut down again.
THE COURT: It's the methodology that they used, I think, that falls under the security issue, but –

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.

[...]

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.
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.

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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  • identicon
    Anonymous Coward, 25 Sep 2014 @ 12:53pm

    So:

    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!

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 25 Sep 2014 @ 2:20pm

      Re:

      So you Americans going to keep rolling over and taking this, or shall we note American independence as a brief footnote in history as their descendants did not seem to care enough about the ideals their country was formed on, to keep it a free country.

      reply to this | link to this | view in chronology ]

      • This comment has been flagged by the community. Click here to show it
        identicon
        Anonymous Coward, 25 Sep 2014 @ 2:50pm

        Re: Re:

        American here...

        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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        • identicon
          Anonymous Coward, 25 Sep 2014 @ 7:08pm

          Re: Re: Re:

          Christianity teaches you to be in the world but not to be of the world. Christianity teaches you to store up your treasures in heaven. Christianity teaches that wherever your treasure is, there is your heart. Christianity teaches you to give the man who sues you for your shirt your coat also. Christianity teaches you to turn the other cheek. Christianity teaches you to love your neighbor as you love yourself. Christianity teaches you to be like the good Samaritan and take care of people who are socially thought to be your enemy.

          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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          • identicon
            Anonymous Coward, 26 Sep 2014 @ 5:42am

            Re: Re: Re: Re:

            Guess you don't know how to read, the post stated that Christianity was keeping him from the shooting. Are you going to stop being Christian when the Lord comes to destroy?

            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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            • identicon
              Anonymous Coward, 26 Sep 2014 @ 11:00am

              Re: Re: Re: Re: Re:

              If you need Christianity to keep you from shooting people, you're already an inherently immoral person. "I want to shoot you, but my imaginary friend says I shouldn't."

              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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              • identicon
                Anonymous Coward, 26 Sep 2014 @ 1:03pm

                Re: Re: Re: Re: Re: Re:

                "How about - murder is wrong"

                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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                • identicon
                  Anonymous Coward, 26 Sep 2014 @ 2:52pm

                  Re: Re: Re: Re: Re: Re: Re:

                  Nothing is because I say so. Or because you say so. I consider murder wrong. A lot of other people do too. You apparently disagree.

                  "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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                  • identicon
                    Anonymous Coward, 27 Sep 2014 @ 4:26am

                    Re: Re: Re: Re: Re: Re: Re: Re:

                    Jesus was clearly a self-hating jew. He would probably be in Hezbollah if he were alive today because he was that anti-Pharisee. I am pro-Pharisee myself so keep your racism accusations to yourself.

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  • identicon
    Anonymous Coward, 25 Sep 2014 @ 1:03pm

    "Cooper and his wife were observed arguing at a party the night before she vanished"

    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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    • identicon
      JEDIDIAH, 25 Sep 2014 @ 1:13pm

      The butler did it.

      This is simply the principle of the most convenient perp. Regardless of the crime, cops will fixate on the most convenient victim/suspect available. The surviving spouse is always going to be the prime suspect.

      The fact that water is wet is compelling evidence to cops.

      reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 25 Sep 2014 @ 1:21pm

        Re: The butler did it.

        Open and shut case.

        How we shut it is a matter of National Security though...

        reply to this | link to this | view in chronology ]

      • icon
        John Fenderson (profile), 25 Sep 2014 @ 1:22pm

        Re: The butler did it.

        "The surviving spouse is always going to be the prime suspect."

        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.

        reply to this | link to this | view in chronology ]

        • identicon
          Anonymous Coward, 25 Sep 2014 @ 2:23pm

          Re: Re: The butler did it.

          In fairness to the defendant, statistics don't determine the truth, and sadly, cops often draw conclusions prior to looking at evidence unless the evidence is undeniable (i.e. irrefutable and released to the public and the media so that it's impossible to cover up).

          reply to this | link to this | view in chronology ]

          • icon
            John Fenderson (profile), 25 Sep 2014 @ 2:28pm

            Re: Re: Re: The butler did it.

            Absolutely true. Nonetheless, if you're just starting an investigation, there's nothing wrong with initially concentrating on the people who are statistically most likely to end up being the guilty party. If the cops are doing their job well, it only benefits everybody: if the spouse is innocent, they get ruled out as soon as possible and get to avoid the stress of being a suspect for a longer period of time. It the spouse in innocent, then they'll be apprehended that much sooner.

            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.

            reply to this | link to this | view in chronology ]

            • icon
              John Fenderson (profile), 25 Sep 2014 @ 2:29pm

              Re: Re: Re: Re: The butler did it.

              "It the spouse in innocent, then they'll be apprehended that much sooner."

              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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        • identicon
          Anonymous Coward, 26 Sep 2014 @ 6:38am

          Re: Re: The butler did it.

          Corollary: Are the spouses statistically the most likely because they're often over-burdened with the inability to prove innocence, like this guy was? What if spouses are the most likely because they have almost no chance to prove themselves innocent? "We're going to force a conviction on you, the spouse, because spouses are commonly the assailant -- the fact that we forced convictions on them for the same reason is notwithstanding."

          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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  • identicon
    Anonymous Coward, 25 Sep 2014 @ 1:12pm

    Appears we're witnessing the dawn of a new age of lawless law.

    It makes me feel so nationally secure.

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    • identicon
      Anonymous Coward, 25 Sep 2014 @ 2:17pm

      Re:

      long as your one of the elite you have nothing to fear from disgruntled serfs and the thugs that are hired to protect your rights, but not theirs

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  • identicon
    Anonymous Coward, 25 Sep 2014 @ 1:17pm

    When Law Enforcement screws up and unconstitutional abuses occur to give even a jury full of cops reasonable doubt...it's a national security issue.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 25 Sep 2014 @ 1:37pm

    A little birdy told us he's guilty

    But you're not allowed to know anything about that bird.


    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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    • identicon
      Shufflepants, 25 Sep 2014 @ 2:07pm

      Re: A little birdy told us he's guilty

      Indeed. Isn't this sort of injustice EXACTLY what the 6th amendment was written for?
      "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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      • identicon
        Anonymous Coward, 25 Sep 2014 @ 2:16pm

        Re: Re: A little birdy told us he's guilty

        Secret courts with secret trials with secret evidence. One would almost think you were in North Korea not America

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  • identicon
    Anonymous Coward, 25 Sep 2014 @ 2:15pm

    WE should believe the FBI obviously. They are too busy setting up fake terrorism plots to setup citizens with murder.

    reply to this | link to this | view in chronology ]

  • icon
    Ramon Creager (profile), 25 Sep 2014 @ 2:27pm

    This judge needs to be fired.

    Note how the judge bends over backwards for the prosecution and the FBI. The defense's witness is presumed unqualified out of hand; no need for the prosecution to lift a finger and actually have to, you know, work to make that case in court. OTOH the FBI's expert's qualifications and his work are to be taken for granted, and shielded from meaningful scrutiny (trust us! National Security!). Jarring.

    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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    • identicon
      Almost Anonymous, 26 Sep 2014 @ 5:58am

      Re: This judge needs to be fired.

      It all makes sense once you accept the incestuous relationship between the judicial system and law enforcement. All of the cards are pre-stacked in law enforcement's favor, I actually find it pretty amazing that anyone ever gets acquitted of anything nowadays.

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  • identicon
    Anonymous Coward, 25 Sep 2014 @ 2:32pm

    An unbelievable story. Two separate forensic experts came to the same conclusion. The Google Maps metadata was planted on the defendant's hard drive.

    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.

    reply to this | link to this | view in chronology ]

    • identicon
      Almost Anonymous, 26 Sep 2014 @ 6:08am

      Re:

      "Moral of the story. Never consent to a voluntary search, especially if you're innocent. Always encrypt your hard drive."
      Unfortunately, neither parts of your advice would have helped him:
      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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      • identicon
        C2SJ48E933FQGSK8474DHP3ML2J1V6R0L7, 26 Sep 2014 @ 7:27am

        Re: Re:

        My password is a random sequence of alpha numeric characters. Seeing as I very rarely reboot my computer, like maybe once per month, I had no choice but to write it down on a sticky note and paste it near my monitor. It was just too hard to remember. What? The sticky note isn't there? Hmm, maybe it fell down and got stuck to the bottom of an investigators shoe? Or perhaps one of them already put it into evidence? It should be there... honest! ;-)

        reply to this | link to this | view in chronology ]

  • identicon
    New Mexico Mark, 25 Sep 2014 @ 3:08pm

    Digital forensics black magic

    The idea that revealing techniques could lead to countermeasures to investigative techniques is patent nonsense. Imagine a law enforcement agency trying to defend the idea that if they reveal that they use a microscope to examine fibers, somehow criminals will invent new clothes for emperors with fibers that can't be seen under microscopes. Maybe that IS possible, but that doesn't mean the method may be kept secret when a defendant's guilt of innocence is on the line.

    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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  • identicon
    Anonymous Coward, 25 Sep 2014 @ 3:24pm

    6 years of fighting and then getting stuck with a public defender? Its not hard to see why he plead guilty.

    reply to this | link to this | view in chronology ]

  • icon
    Binko Barnes (profile), 25 Sep 2014 @ 3:46pm

    It would truly be a nightmare if my wife disappeared and a great tragedy and source of grief if she was found dead.

    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.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 25 Sep 2014 @ 4:23pm

      Re:

      cops are lazy, they only look for enough to charge and convict, never for the truth.

      reply to this | link to this | view in chronology ]

    • icon
      Mike Brown (profile), 25 Sep 2014 @ 5:08pm

      Re:

      Maybe he fell for that old chestnut: "If you have nothing to hide, you have nothing to fear."

      reply to this | link to this | view in chronology ]

    • identicon
      Almost Anonymous, 26 Sep 2014 @ 6:11am

      Re:

      While I agree with you in principle, the agreement to voluntary search probably made very little difference. If he hadn't agreed, they would have gotten a search warrant and searched his house and computer regardless.

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 25 Sep 2014 @ 3:48pm

    so is this really just another case where the prosecutors think it is more important to get a win than sending the correct person to jail? if they were convinced they had the right person for the crime, they wouldn't object to any expert checking the evidence. after all, it isn't one of them going to prison, is it?

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 25 Sep 2014 @ 4:53pm

    This is exactly what will lead this country into rebellion. It's evident already that there is little faith in government nor justice. There's not much margin left before this country goes into rioting followed by uprising. I have no faith there is any way to avoid this because of actions just like what are seen in this article. The problem isn't just this judge.

    reply to this | link to this | view in chronology ]

  • identicon
    Stewby, 25 Sep 2014 @ 5:33pm

    Parallel Construction perhaps?

    Not technically literate enough for me to know, but I was curious whether the ties to Cisco would have the national security types up in arms enough to use NSA-derived data laundered with the fraudulent Google search cookie. Maybe they had the goods on him from their mass collection and planted evidence to convict someone they knew to be guilty. Disturbing, but is it possible?

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 25 Sep 2014 @ 6:12pm

      Re: Parallel Construction perhaps?

      Maybe she was having an affair with an NSA agent and he needed her erased before she exposed him and his secrets with the secret tapes she had made?

      reply to this | link to this | view in chronology ]

      • identicon
        Stewby, 26 Sep 2014 @ 4:16am

        Re: Re: Parallel Construction perhaps?

        I would consider that unlikely myself, however there are any number of reasons other than the obviously ridiculous that may have motivated the investigators. I still tend to lean towards the more mundane types of misconduct, but I suppose she could have been the First Lady's lover that had to die or something if you want to jump straight into the realm of absurdity.

        reply to this | link to this | view in chronology ]

  • identicon
    Socrates, 25 Sep 2014 @ 7:20pm

    In USA, a quarter of all convicted persons proved to be innocent had plead guilty.

    reply to this | link to this | view in chronology ]

  • icon
    aldestrawk (profile), 25 Sep 2014 @ 11:49pm

    decoding the technical details

    several observations here:

    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.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 28 Sep 2014 @ 2:00am

    So what their admitting too, is using tools specifically created to "deal" with an extreme situation, and use it in every day life......the words, "carpet pulled under them" comes to mind"..........shushhhhhhh

    Blind to the world their creating

    I wonder if they ever had a "moral high ground"

    reply to this | link to this | view in chronology ]

  • identicon
    Akhenatron, 28 Sep 2014 @ 4:46pm

    EVIDENCE against COOPER

    It's common sense. This guy has no business getting another trial - yet, he does live in North Carolina - the only state that lets spouses kill each other and get 3 years in prison ( see abaroa trial).

    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,

    reply to this | link to this | view in chronology ]

  • icon
    Uriel-238 (profile), 29 Sep 2014 @ 11:16am

    I'd prefer to see the DoJ actually make difficult choices

    I think evidence too secret to reveal to the court is evidence that shouldn't be admitted to the court at all. One does not get to bypass the transparency of the justice system because they represent the state, especially given that our justice system was developed on the experience of the people suffering from a state-biased court. Evidence that emerges from national security secrets is no evidence at all, and if we allow it, it sets the precedent that Law Enforcement can simply say "because I said so" and will. Everytime.

    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.

    reply to this | link to this | view in chronology ]

  • identicon
    davidbarcomb, 26 Nov 2014 @ 9:23pm

    Great article

    reply to this | link to this | view in chronology ]


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