Judge Supported the Withholding of Exculpatory Evidence

Despite the very lengthy 10 week trial, there was very little evidence presented in this case and none of it connected Brad to the murder.  In any investigation, but especially this one, it’s crucial to explore every possible lead and to consider all information obtained, including information from children. The afternoon that Nancy disappeared, Bella Cooper (age 4 1/2 at the time) told a neighbor, Clea Morwick that she saw her mother that morning in black shorts and a white tee-shirt.  The clothing description was consistent with that of many of the sixteen people who contacted police because they believed they saw Nancy that morning.  They were responding to “missing” flyers posted throughout the area.  The flyers had Nancy’s photo on them and many of the witnesses felt very certain that it was Nancy they saw jogging.

If the Cary police interviewed Bella, there was no record of the interview in discovery documents.  If they didn’t interview Bella, what reason would possibly justify ignoring important information such as this?  Clea told Detective Dismukes shortly after Nancy disappeared that Bella saw Nancy that morning.  Why didn’t police follow up on this?  Maybe they did but it was never disclosed.

The defense referenced this in the motion to compel in February ’11, just before the trial began. From page 11 of the document:

A defendant has a constitutional right to know the exculpatory evidence the prosecution and the police know. Brady v. Maryland, 373 U.S. 83, 10 L.Ed. 2d 215 (1963).

The following illustrates error and potential prejudice in various rulings, but does not discuss every erroneous ruling of the trial court and does not exhaust the possibilities for prejudice that the sum of the court’s erroneous rulings have injected into the case.

1.  Information Bearing On The Crucial Issue Of Whether Ms. Cooper Was Alive The Morning She Was Reported Missing.

Mr. Cooper has consistently maintained that Ms. Cooper disappeared the morning of July 12, 2008 after she left the family home to go jogging.  If she went jogging, indeed, if she was alive that morning, other indisputable facts are such that Mr. Cooper could not have killed her.  The trial court denied disclosure of any law enforcement interviews with the Cooper’s oldest child, Bella, who was four and a half years old at the time of her mother’s death.

Clea Morwick, a neighbor and family friend who took the Cooper children to her home the day Ms. Cooper disappeared, was interviewed by the police the evening of the same day.  Ms. Morwick told the police that Bella told her that she had seen her mother that morning and that her mother had been wearing clothing consistent with a morning jog (“black shorts and a white tee shirt”).

The trial court refused to make the prosecution even to admit or deny that Bella Cooper was interviewed.  If the child was interviewed, that interview is patently discoverable under G.S. 15-A-903 (a) (1).  If the information gathered in that interview was consistent with what the child had said the day of her mother’s disappearance, it’s disclosure is constitutionally mandated.  If the child was not interviewed, which seems inconsistent with the investigation otherwise conducted in this case, that fact in itself is exculpatory as a glaring and biased failure by investigators to interview a witness with exculpatory information.  See, United States V. Bagley, 473 U. S. 667, 87 L. Ed. 2d 481 (1985) (information that impeaches credibility of key witnesses is exculpatory under Brady v. Maryland.

The trial court ruled that the request for interviews of the child was “denied” and that information concerning a failure to interview was “not discoverable, but is the subject of cross examination.”

With all due respect, these rulings are dumbfounding.  A defendant has a constitutional right to a timely disclosure of exculpatory information and to not be forced to hunt for the information in the cross-examination of witnesses at trial.  See generally, Kyles v. Whitley, 514 U.S. 419, 131 L. Ed. 2d 490 (1995).  Indeed, if the prosecution at trial does not call witnesses who interviewed the child, the court’s ruling will bury the information until a court of superior jurisdiction orders it disclosed.  The prosecution apparently chooses to take it’s chances on getting conviction and then arguing on appeal that the error was harmless.  The court’s rulings reduce statutory and constitutionally-mandated discovery to a game of twenty questions and is completely inconsistent with North Carolina law and the prosecution’s due process obligations.

These are the prior discovery requests described above, along with the judge’s rulings (pg. 57)

1.  If they did interview Bella Cooper, full disclosure as to the details of any interviews with Bella Cooper that they conducted or of which they are aware and if notes were not made that they be compelled to commit them to writing.

Judge’s ruling: The information sought is denied. (pg. 126 of motion document)

2.  If they did not interview Bella Cooper, full disclosure as to the reasons why they did not interview a material witness who had relayed exculpatory information along with who participated in the decision, when it was made, and if it was not previously committed to writing for it to be so committed.

Judge’s ruling: The information sought is not discoverable, but is the subject of cross examination.

3.  Documentation with respect to the Cary police department’s policies or training in the interviewing of child witnesses.

Judge’s ruling: The information sought has been provided.

So the police, prosecutors and judge worked together to keep any testimony regarding interviews of Bella Cooper out of the trial, even though it was documented that she told Clea Morwick that she saw her mother that morning. Does this sound like a fair trial?  I don’t think so.

The small amount of testimony related to Bella Cooper’s account of that morning was blacked out because the detective was working undercover at the time.  I have only read the media’s twitter feed and I will include it here but it was noted that the jury wasn’t present during this part of the questioning by the defense.

Defense: Cooper daughter, Bella, told adult she saw her mom that morning wearing black shorts, white shirt. Officer confirms.

Officer: “Due to the stress & trauma it could cause a 4 1/2-year-old child, I did not interview her about her missing mother.”

Undercover officer: I went with the info Brad gave us. He said Nancy left at 7 a.m. & Bella was still sleeping.

Jury out of the room during testimony about what Bella said. Judge rules that he will not allow that testimony at this point.

So that was it.  The jury never got to hear that the Cooper’s daughter told a neighbor she saw her mother that morning.  This reminds me of a recent exoneration in Texas.  Michael Morton served 25 years for a murder he didn’t commit and was finally cleared on DNA evidence.  There is mention of exculpatory evidence that was withheld.  Apparently the Morton’s 3 year old son reported seeing a man attack his mother that morning. From the article:

  Morton’s attorneys — John Raley of the Houston law firm Raley & Bowick and lawyers at the New York-based Innocence Project — allege that the Williamson County district attorney’s office intentionally withheld a transcript in which Christine Morton’s mother told a sheriff’s investigator that the couple’s 3-year-old son, Eric, saw a “monster” with a big mustache who was not his father brutally attack his mother.

In both of these cases, prosecutors withheld information reported by children that was favorable to the defendant.  It is now being called into question in the Morton case and I hope soon that it will be in the Cooper case as well.

One thought on “Judge Supported the Withholding of Exculpatory Evidence

  1. Again, this is but one of many reasons why Brad Cooper did not receive a fair trial. The question is, how long will it take for his request for an appeal to be considered?


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