Attorneys for Kerry Max Cook have filed new motions in the decades-old murder case that Cook was sent to death row for in 1994, asking for Judge Jack Skeen Jr. to be recused from the case and for post-conviction forensic DNA testing to be done.
The motions filed this week in the 241st District Court cite “systematic corruption and egregious misconduct” as reasons they are asking for Skeen to be removed from the case and for a judge from outside Smith County to be appointed to hear the motion seeking new testing.
Cook, who has been free since 1998, was arrested for the 1977 homicide of Linda Jo Edwards.
Police found Ms. Edwards' body the morning of June 10, 1977, in her apartment on Old Bullard Road. She had been beaten in the head with a plaster statue, stabbed in the throat, chest and back more than 25 times and sexually mutilated.
But Cook said he met her at the apartment complex's swimming pool and went to her apartment.
He denied killing the woman.
He was sentenced to die by a Smith County jury in 1978, but the Criminal Court of Appeals overturned the case in 1989, because a psychologist had not read Cook his Miranda warnings thus rendering all information in the psychological interview useless.
But Cook was not freed because he remained under indictment of capital murder, and then Smith County District Attorney Jack Skeen Jr. took two more swings at convicting Cook.
In 1992, Smith County tried the case, but the jury ended deadlocked, so the case was stalled.
The man, who lived in the same apartment complex as Ms. Edwards, said he had an encounter with Cook the night of the murder, according to court documents.
However, the defense was not privy to statements the man made that might perjure him, and in 1997 the case was reversed by the Court of Criminal Appeals because the defense team could not cross examine the man about his testimony and impeach him based on the evidence that was originally suppressed from the defense.
New statements also were made by state witnesses that contradicted their earlier statements.
In the new motions, Cook's attorneys cite the Appeals Court in its opinion of the reversal, “Prosecutorial and police misconduct has tainted this entire matter from the outset. Little confidence can be placed in the outcome of the appellant's first two trials as a result and the taint, it seems clear, persisted until the revelation of the state's misconduct in 1992.”
In 1998, as Smith County was moving forward with a fourth trial, Skeen offered Cook a deal that would convict the man of murder but would not require Cook to admit he killed the woman.
In exchange for his plea of no contest, Cook was convicted of murder but sentenced to the time he already served. He was a free man.
But his attorneys say the cloud has hung over their client and they now want him exonerated.
Defense attorneys refused to comment on the case Thursday.
Paul Cates of the Innocence Project in New York said, “We are working with Mr. Cook's attorneys on the case, but we don't have anything to say other than what is in the papers filed in the court.”
Former Smith County prosecutor David Dobbs questioned the timing of the new motions and pointed out that Cook and “his handlers” (the Innocence Project and Centurion Ministries) waited 12 years since Cook was released from prison to begin asking for DNA testing on evidence.
“There were DNA and supplemental tests outstanding when he entered his plea in 1998. Why didn't his attorneys ask for it then? It makes you wonder why they waited 12 years to ask for testing while he was out promoting his book. One could only guess they are hoping the evidence has been lost so they can say he is innocent,” he said.
Dobbs, who was the assistant prosecutor on the case, said for all of the stories told by Cook, people need to know that Cook was a convicted felon and a fugitive at the time of Ms. Edwards' death and that on a previous occasion escaped from the Rusk State Hospital by jumping out of a window.
The former prosecutor admitted there were problems with the case from the beginning, but Cook's fingerprints were still found at the scene and that has never been explained.
“There were some things hidden from the defense in the case early on that is not a lie, but that was in the '70s,” he said. “I was in the eighth grade when he was first convicted and not a part of the prosecution.”
But the Court of Criminal Appeals cited Dobbs's attempted questioning of Cook without his attorneys as being one of the reasons they overturned the 1994 case.
Dobbs said he was sent to travel with Cook on a transfer back to Smith County because Cook had become self-injurious and was mutilating himself.
“I asked if he was OK, but when he began to talk to me I told him, I could not talk about the case without his attorney present. He freaked out, and the next day told his attorney that I tried to question him,” he said.
Dobbs said from the time of Cook's arrest in 1978 until forensic testing in 1995 put Cook inside of Ms. Edwards' apartment, Cook was adamant he had never been in the apartment. He said he had been window peeping.
When it was discovered he had been in the apartment, Cook said he was afraid it would make him appear guilty, Dobbs said. Cook then said that he had a relationship with Ms. Edwards.
“There have been a lot of stories and inconsistencies from him,” he said.
Dobbs said according to Texas law, Cook stands to gain $1,680,000 if he is exonerated because a person wrongfully convicted and confined can be awarded $80,000 per year they were incarcerated.
“He stands to gain quite a bit in all of this,” he said.
Smith County District Attorney Matt Bingham said he is not familiar with the facts and had just received the motions Thursday.
“I don't know what items of evidence there are to be tested, but if items exist that can be tested that will shed light on the case, I plan on having them tested,” he said.