Gary Udashen, an attorney for Kerry Max Cook, was speaking after a hearing held for his client. He referenced a knife and a hair sample kept at the home of Eddie Clark, a Tyler police sergeant. Clark told prosecutors in an affidavit that he took the knife and the slide of hair with him from an evidence room several years ago when the rest of the material in Cook’s case was going to be destroyed - standard procedure then in a case considered closed, Smith County Assistant District Attorney Mike West said in May.
“This raises questions about cross-contamination. The property is not testable under statute; they must have a chain of custody established,” Udashen said.
Marc McPeak, another attorney for Cook, also told the three Court of Appeals justices that former Smith County Judge Cynthia Kent should not have been the one to transfer the Cook case to the Smith County 114th District Court from the 241st District Court in 2003, and instead should have referred the case to Administrative Judge John Ovard to re-assign.
“When Judge Jack Skeen Jr. took office, Judge Kent ordered transfer of all cases he had prosecuted out of his court,” said Cook attorney Gary Udashen after the hearing on Thursday. Judge Ovard should have been the one to make that decision, Udashen said.
But Justice James Worthen argued that the order was valid because Judge Kent, acting as both a Smith County administrative judge and as judge for the then-vacant 241st District Court in 2003, signed the order, transferring the Cook case to the 114th. And McPeak agreed with Worthen that the opinion was valid.
Cook, arrested in the 1977 homicide of Linda Jo Edwards, has been free since 1998. He was 19 years old at the time of the arrest, according to his website. Police found Ms. Edwards’ body June 10, 1977, in her apartment on Old Bullard Road. She was beaten in the head with a plaster statue, stabbed in the throat, chest and back more than 25 times and sexually mutilated.
After initially being convicted of capital murder and placed on death row in 1978, his case was overturned in 1989 because a psychologist had not read Cook his Miranda Rights, thus rendering all information in the psychological interview useless.
In 1992, Smith County tried the case, but the jury ended deadlocked, so the case stalled. In 1994, Cook was found guilty of capital murder when the state used the testimony of a male witness who had died. The male witness, 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.
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 then a free man.
But his attorneys, McPeak and Udashen, say a cloud has hung over their client, and they now want him exonerated. They said in a February filing that additional biological evidence found in Ms. Edwards’ underwear matched the DNA profile of a married man with whom she was having an affair at the time of her death.
Ovard, presiding judge of the First Administrative Judicial Region, ruled April 9 in the 114th Smith County District Court that Judge Kennedy did not have to recuse herself in the Cook case after hearing arguments from McPeak and Udashen, along with prosecutors.
McPeak and Udashen argued that Judge Kennedy could not be fair or impartial on any rulings she might make in the Cook case because some of her colleagues on the bench and their families were involved in Cook’s prosecution in his previous trials.
West argued forcefully before the justices that the Smith County District Attorney’s Office had tested all DNA evidence from the murder case that they were required to test. He said he couldn’t understand why Cook’s attorneys would not want the knife tested. “If I were innocent, I would want the murder weapon tested,” West said.