From: Texas Monthly
Thirty-eight years after Kerry Max Cook was convicted of murder, he continues to seek exoneration. And now he might finally have a chance to convince the courts of his innocence. – See more at: http://www.texasmonthly.com/news/four-decades-three-trials-two-death-sentences-1-exoneree-almost/#sthash.S6zVMqhs.dpuf
Editor’s note: This story has been updated below to reflect that Smith County district judge Christi Kennedy recused herself from Kerry Max Cook’s case. A new judge has been appointed to consider Cook’s writ: Jack Carter, age 72, from Texarkana. Carter is a Democrat who last year retired from the Sixth District Court of Appeals, which handles appeals in cases from 19 Northeast Texas counties—but not Smith County, where Cook’s trials have taken place.
The long, strange ordeal of Kerry Max Cook—perhaps the most bizarre series of capital murder proceedings in Texas history—just got longer. And stranger. Cook, convicted of the 1977 rape, mutilation, and murder of Linda Jo Edwards, spent 20 years on death row. While there, he was stabbed and repeatedly raped. The abuses led him to twice attempt suicide. He always maintained his innocence, and though his death sentences were overturned—twice—and the people who prosecuted him were reprimanded by a high court for extensive malfeasance and he was eventually freed from death row in 1997, he has never been exonerated. That’s because back in 1999, on the eve of an unprecedented fourth capital murder trial, he took a “no contest” plea. So even as he became a celebrity—writing a book about his experience, becoming a subject of a popular play and movie called The Exonerated, giving anti-death penalty speeches and hanging out with anti-death penalty celebrities—Cook is still considered a convicted killer. Especially in Tyler, Texas, where the murder took place.
And so today he ventured there again, at least legally, accompanied by lawyers from the Innocence Project and the Innocence Project of Texas, who filed two motions at the Smith County courthouse: a writ of habeas corpus to get his murder conviction thrown out and a motion to recuse the judge who would actually rule on the writ.
To win on a habeas writ, a person must have new evidence contradicting his verdict. Cook has that: DNA tests on 15 crime scene items, none of which show his blood or semen anywhere on or near the victim. In fact, these tests actually show a profile of another man: the victim’s lover, a married man with whom she’d been having a tempestuous affair. While this isn’t mind-blowing news—DNA tests from 1999 also excluded Cook and included the lover—this is the first time the test results have actually gone before a court. And they could eventually lead to a new trial for Cook.
Cook’s ordeal began with the bloody rape and murder of Edwards, a young secretary who lived in the same Tyler apartment complex he did. Over the next 16 years, prosecutors took Cook to court three times, even though they didn’t have much evidence: fingerprints on a patio door, a jailhouse informant who said that Cook told him he killed her, the recollections of a gay man who said that on the night of the murder he and Mr. Cook had had sex and watched a movie that involved a cat torture scene. Prosecutors came up with the bizarre but effective theory that Cook, whom they said was a latent homosexual, was aroused by the torture scene and then left the apartment and raped and killed Edwards, cutting off body parts (including the inside wall of her vagina), which he then stuffed in a stocking of hers that had gone missing.
But all of the evidence used against Cook proved to be problematic or downright fraudulent. It turned out that three different witnesses had testified to a grand jury that Cook told them he had met Edwards three days before the murder and had gone to her apartment, where they made out on the couch, which explained the fingerprints (prosecutors didn’t tell the defense about the witnesses). The jailhouse snitch confessed that he lied because he had been offered a reduced sentence for a murder conviction. The man who testified he’d had sex with Cook had previously told a grand jury there was no sex—and that Mr. Cook had ignored the movie in the first place. And the missing stocking that was supposed to be full of souvenir body parts was found in 1992 rolled up in a pants leg of Edwards’s jeans by a juror who’d asked to look closely at the trial exhibits—15 years after the murder.
Cook’s first conviction in 1978 was overturned on a technicality. The second trial, in 1992, ended in a mistrial. The third two years later led to a second guilty verdict and death sentence, but in 1996 the Court of Criminal Appeals overturned it too, thundering that “prosecutorial and police misconduct has tainted this entire matter from the outset.” A concurring opinion said, “The state’s misconduct in this case does not consist of an isolated incident or the doing of a police officer, but consists of the deliberate misconduct by members of the bar, representing the state, over a fourteen-year period—from the initial discovery proceedings in 1977, through the first trial in 1978, and continuing with the concealment of the misconduct until 1992.”
It looked like Cook was finally on his way to exoneration, and he was released on bond in 1997. But Smith County wasn’t finished and set about trying him for a record fourth time. As the February 1999 trial date approached, prosecutors made him an offer: plead guilty in exchange for 20 years (which he had already served), and the charges would be dropped. Cook refused. He was innocent, he said.
Then, on February 4, a DPS analyst, examining Edwards’s underwear, found a previously unseen semen stain; the state moved to run modern DNA testing on the stain as well as a hair found on her buttock. According to reporter David Hanners of the Dallas Morning News, Assistant DA David Dobbs told him that the semen “could only have been left by the killer.” On the morning of jury selection, the DA shocked Cook with a final offer: plead no-contest and the case would be dismissed. Such a plea had never been allowed in a Texas death penalty case before, but with it, Cook could maintain his innocence (even though he wouldn’t be legally exonerated), while the state would keep its conviction. Cook’s advisors—suspicious that prosecutors were panicking because they knew his DNA would not be found in the sample–urged him to go to trial. Cook, though, terrified of going before a Smith County jury again and returning to death row, took the plea.
He should have waited. The DNA results came back two months later, and, as Cook had always insisted, it wasn’t him. In fact, the semen came from James Mayfield, a former college dean with whom Edwards (a secretary in his division) had been having a stormy affair. Three weeks before she was murdered, in fact, she had tried to kill herself, and when news of the attempt became public, both were fired from their jobs. Not only did Mayfield and Edwards see each other several times in her final days, according to a friend of hers who talked with her five hours before she was murdered, she had informed Mayfield she was going to date other men—and he did not take the news well. On that last night, her roommate saw a man standing in the doorway of her bedroom; she told police and others that it was Mayfield (though more than a year later she would change her mind and testify that it was Cook).
Cook was ecstatic with the results, but the Smith County DA’s office now said that they just confirmed what everyone knew—Edwards and Mayfield had a sexual relationship. Though Dobbs had told Hanners the DNA was essentially the smoking gun, now he told another reporter, “It’s irrelevant. Cook has been convicted of the murder.” And indeed he had.
Cook tried to move on with his life—and had a terrible time of it. He was free but still had a murder conviction on his record. “I couldn’t get a job, couldn’t sign a lease,” he said later. “We’ve had to move five times because people would find out about me. One woman threatened to put up posters in the neighborhood saying ‘Convicted murderer lives here.’” He couldn’t vote, own a gun, or run for office. In 2009 Cook befriended Marc McPeak, a civil lawyer who offered to help him. Three years later, McPeak, working with Dallas lawyer and Innocence Project of Texas member Gary Udashen, filed for DNA testing on other crime scene evidence—including the bloody knife. The lawyers also moved to recuse the judge who would rule on the testing. That judge was Jack Skeen, who had prosecuted Cook twice. Judge John Ovard okayed the testing and the recusal, sending all further matters to be decided by fellow Smith County district judge Christi Kennedy.
Next Udashen contacted the Innocence Project, which has used DNA testing to exonerate more than 300 people nationwide. Fifteen items from the crime scene, including Edwards’s stained bra, her jeans, cigarette butts, and blood on the knife, were sent to Cellmark Forensics lab near Dallas. They were tested over the next two and a half years; the final results came in March. The results corroborated the 1999 findings: None of Cook’s DNA was found on anything at the bloody crime scene. More elaborate DNA testing on the underwear, though, got an even stronger profile of Mayfield.
The DNA evidence is the biggest part of the writ of habeas corpus, and the lawyers use it to make the claim that Cook is actually innocent. To prevail in such a case, someone like Cook has to show that his innocence has been unquestionably established with newly discovered evidence, and the lawyers are banking on the fact that none of Cook’s DNA evidence has ever been brought into a court, not even the 1999 results. Cook’s lawyers are also using Texas’s “junk science writ,” passed in 2013, which says that new forensic science can be used to successfully attack a conviction; all a petitioner has to do to get a new trial is show that with the new scientific evidence, it’s more likely than not that a jury wouldn’t have convicted him. If Cook’s trial were held today, with the DNA results pointing to the victim’s ex-lover, would he still be found guilty? Almost certainly not.
The Innocence Project also alleges that prosecutors knew when they made the “no contest” plea offer that Mayfield’s DNA profile would show up in the semen, not Cook’s—and urge an evidentiary hearing to look into the matter. And the lawyers attack law enforcement for destroying evidence, in particular the hair found on Edwards’s buttock, which doubtless came from the killer. Prosecutors knew the hair wasn’t from Cook or Edwards–an expert had already testified, back in 1978, that it couldn’t have come from either person.
But in early 2002, two years after the results of the DNA testing pointed to Mayfield, Tyler police destroyed the hair. This wasn’t just an unbelievably wrongheaded action, it was also against the law, violating Chapter 64, the law the legislature had passed in 2001 that allowed inmates to ask for post-conviction testing. It also forbade law enforcement from destroying any piece of biological evidence that was eligible for testing. When police destroyed that hair, they destroyed an important clue to the killer of Linda Jo Edwards.
Almost four decades into his ordeal, Cook, aided by the powerful, well-funded Innocence Project, has his best shot at vindication. But given (in the CCA’s words), “the deliberate misconduct by members of the bar, representing the state, over a fourteen-year period,” the one thing he says he hasn’t had is an objective hearing of his claims.
And so his lawyers filed a second motion, this one to take the case out of the court of Judge Christi Kennedy, one of four district judges in Smith County. Tyler is a small town, they say, with a close-knit legal community, and there’s no way Kennedy can objectively adjudge a writ of habeas corpus dealing with the most controversial case in the history of Smith County—she’s just too close to the major players. For example, one of Kennedy’s fellow district judges, Carole Clark, is married to A.D. Clark, the first DA to prosecute Cook. Another fellow judge is Skeen, who, of course, prosecuted Cook in his second and third trials. Kennedy’s late husband Richard was an ADA under Skeen during Cook’s second trial. The Texas Rules of Civil Procedure say, “A judge shall recuse himself in any proceeding in which: (a) his impartiality might reasonably be questioned; (b) he has a personal bias or prejudice concerning the subject matter or a party…” Could Kennedy be fair in ruling on the possible innocence of a man whom her friends and peers tried for so long to execute?
There is precedent for judges stepping aside when their impartiality—or just the appearance of favoritism—might become an issue. In 2010, before Michael Morton’s retrial in Williamson County, the judge set to hear the case, Billy Joe Stubblefield, recused himself when it became clear he was going to have to rule on charges of serious misconduct by former DA and current judge Ken Anderson, one of Stubblefield’s peers on the Williamson County bench. Stubblefield never gave a reason for his recusal, but one can surmise that he thought the public’s confidence in what was already a controversial trial would be higher if he didn’t oversee it.
Kennedy has three days to decide whether to recuse herself or to stay on and hear the case. Either way, the issue will go to Mary Murphy, presiding judge of the 1st Administrative Judicial Region in Dallas, which oversees Smith County. If Kennedy steps aside, Murphy will choose a replacement court and judge; if Kennedy refuses to recuse, Murphy will decide whether, in fact, she should or not. One way or another, Murphy will ultimately decide which judge—in which county—adjudicates the writ.
How much stranger could the case of Kerry Max Cook get? After 38 tortured years, everyone would like to see a fair, impartial, and totally normal end to it. But at this point, there’s only one way for that to happen: put Cook’s writ of habeas corpus—which contains compelling evidence that he is an innocent man—in front of fresh eyes, in a courthouse unsullied by the taint of bitter memories and years of deliberate misconduct.
UPDATE (9/18/15, 9:30 a.m.): Late on Thursday, Judge Christi Kennedy of the 114th Judicial District Court in Smith County voluntarily recused herself from considering the writ of habeas corpus filed by Kerry Max Cook earlier in the week. In addition to Monday’s writ application, Cook also filed a motion asking Kennedy to recuse herself from considering it, for the simple reason that she’s too close to the major players. Kennedy is one of only four district judges in Smith County—one of the others, Carole Clark, is married to A.D. Clark, the first DA to prosecute Cook, and another fellow judge is Jack Skeen, who also prosecuted Cook. A third deep connection is that Kennedy’s late husband Richard was an ADA under Skeen during Cook’s second trial. “For these reasons,” Cook’s motion read, “it would be unreasonable to expect any individual in Judge Kennedy’s position—particularly one who presently serves alongside Judge Skeen and Judge Clark in a small, four-district-judge courthouse—to serve as the trier of fact on these claims.”
In the order, Kennedy was insistent that the recusal motion had the facts wrong. “Having considered the motion,” she wrote, “the Court FINDS that factual allegations contained in the motion are false. The Court does not harbor any personal bias or prejudice against Applicant nor does the Court lack impartiality.” However, Kennedy writes, “the Court finds the interest of judicial economy along with the appearance of impropriety dictate the Court sua sponte recuse itself from any further proceedings in this case. So that all parties in this case will have confidence in a fair and impartial tribunal, the Court asks that the Presiding Judge of the First Administrative Region assign a judge to preside over this case.”
That judge is Mary Murphy, who lives in Dallas. She will choose which judge in which county will hear Cook’s writ of habeas corpus, in which he claims to be actually innocent of the murder of Linda Jo Edwards.
UPDATE (9/18/15, 12:00 p.m.): Mary Murphy, presiding judge of the 1st Administrative Judicial Region in Dallas, has appointed a judge to hear Kerry Max Cook’s writ of habeas corpus: Jack Carter, age 72, from Texarkana. Carter is a Democrat who last year retired from the Sixth District Court of Appeals, which handles appeals in cases from 19 Northeast Texas counties—but not Smith County, where Cook’s trials have taken place.