Posted 7:32 pm Saturday, December 22, 2012
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Court of Appeals rules Judge Kennedy will decide Kerry Max Cook evidence case
By DAYNA WORCHEL
dworchel@tylerpaper.com
The 12th Court of Appeals has ruled that Smith County Judge Christi Kennedy of the 114th District Court will be the one to rule on whether DNA testing can be performed on evidence in the decades-old Kerry Max Cook murder case, including a knife and a hair sample that had been kept at the home of Eddie Clark, a Tyler police sergeant.
dworchel@tylerpaper.com
The 12th Court of Appeals has ruled that Smith County Judge Christi Kennedy of the 114th District Court will be the one to rule on whether DNA testing can be performed on evidence in the decades-old Kerry Max Cook murder case, including a knife and a hair sample that had been kept at the home of Eddie Clark, a Tyler police sergeant.
The appeals court issued the ruling on Thursday.
Defense attorneys for Cook had argued on Nov. 1 before the Court of Appeals that the evidence in Clark’s possession had not been properly preserved and that former Smith County 114th District Court Judge Cynthia Kent should not have been the one to transfer the Cook case from the 241st District Court when Judge Jack Skeen Jr. began presiding over the 241st.
A portion of a prepared statement that Cook sent to the Tyler Morning Telegraph said that the specific basis for his motion to “recuse Judge Kennedy was due to her impartiality in being so connected to ... the entire Smith County legal apparatus that has kept the lies against me alive and well.”
“It would seem if they really didn’t have anything to hide they would, in the interest of justice and the truth, agree to have a Judge outside Smith County to make the ruling of my innocence. This way the truth could just be the truth,” Cook said in his statement.
Smith County Assistant District Attorney Mike West argued the case on behalf of the state.
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.
A portion of a prepared statement that Cook sent to the Tyler Morning Telegraph said that the specific basis for his motion to “recuse Judge Kennedy was due to her impartiality in being so connected to ... the entire Smith County legal apparatus that has kept the lies against me alive and well.”
“It would seem if they really didn’t have anything to hide they would, in the interest of justice and the truth, agree to have a Judge outside Smith County to make the ruling of my innocence. This way the truth could just be the truth,” Cook said in his statement.
Smith County Assistant District Attorney Mike West argued the case on behalf of the state.
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.
Cook was not freed because he remained under indictment of capital murder. Skeen, who was the Smith County district attorney at that time, tried twice more to convict Cook for Ms. Edwards’ murder.
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 who she was having an affair with 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.
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 who she was having an affair with 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.
“When Judge Jack Skeen Jr. took office, Judge Kent, in 2003, ordered transfer of all cases he had prosecuted out of his court,” said Cook attorney Gary Udashen after the hearing on Nov. 1. Administrative Judge John 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.
“Both Judge Ovard’s August 2012 transfer order and Judge Kent’s 2003 transfer order were a valid exercise of their respective authority and, independently, caused this case to be transferred to the 114th District Court,” the opinion stated.
“When Judge Jack Skeen Jr. took office, Judge Kent, in 2003, ordered transfer of all cases he had prosecuted out of his court,” said Cook attorney Gary Udashen after the hearing on Nov. 1. Administrative Judge John 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.
“Both Judge Ovard’s August 2012 transfer order and Judge Kent’s 2003 transfer order were a valid exercise of their respective authority and, independently, caused this case to be transferred to the 114th District Court,” the opinion stated.
