Prosecutor Errors Haunt Long Exoneration Fight
The Texas Tribune analyzed 86 overturned convictions, finding that in nearly one quarter of those cases courts ruled that prosecutors made mistakes that often contributed to the wrong outcome. This multi-part series explores the causes and consequences of prosecutorial errors and whether reforms might prevent future wrongful convictions.
Kerry Max Cook had been out of prison for about three years when his son was born.
As Kerry Justice Cook slept in his crib, his father would peer down at his tiny son and cry, battling back suicidal thoughts that have haunted him since experiencing unspeakable horrors during 20 years on ...
Comments (20)
Dale Curry
Thank you Tribune, another exceptional article.
There is NOT a better argument for the abolition of the Death Penalty than this article. The Cook, Willingham, and Morton convictions speak volumes about the macabre sense of justice the State of Texas applies. As to the particulars of this case, is it any wonder that Clark, the prosecutor who should face misconduct charges, now works for our failure of an Attorney General? Furthermore, the fact that so many people involved with the repeated prosecution of this case, are all related to one another, should be reason enough for a change of venue. It strikes me more than cruel and unusual punishment for this man to face prosecution at the case by anyone ever affiliated with this apparently corrupt DA office. Not to mention that it is clear that Smith County “justice” has been delivered with a sense of nepotism that should NOT be allowed in any American courtroom. It is long past time for these corrupt “officers of the court” to be brought to justice for their misconduct. Their continued license to practice law is an indictment of the legal profession and our system of “justice” in Texas! These people make the Taliban’s stoning look positively judicious and humane!
Kerry Cook
Dale, I have been fighting against unimaginable police and prosecutorial misconduct with the Smith County District Attorney's Office for 35 years, trying to prove to the rest of Texas that the only reason I was arrested, tried and convicted to begin with was because of egregious police and prosecutorial misconduct by first, A.D. Clark, III. No matter how much I have established to prove I was wrongly convicted - - remain so today - -the Texas State Bar has remained deafening silent against the facts. I am not talking about legal technicality-like misconduct: I am referring to documented misconduct so pervasive, the Texas Court of Criminal Appeals ruled in 1996 that without it (misconduct), I could not have been found guilty and put on trial three times.District Attorney Jack Skeen and his Assistant, David Dobbs exponentially expounded on the miscondcut to send me back to death row a second time in 1994. Today, my legal nightmare continues but has been passed on to Skeen's acolyte - - Smith County District Attorney Matt Bingham. And the new David Dobbs is Bingham's unscrupulous side-kick, Michael West. By keeping the truth buried in Smith County, Matt Bingham and Smith County Judge Christi Kennedy hope to make certain no one outside Tyler ever knows the truth. Thank you for your comments, Dale. You nailed my nightmare today....
Kerry Cook
Lastly, one of the factors people always seem to omit, though, is that the original prosecutor in my case - - Michael Thompson - -was a drug-crazed, bribe-taking unscrupulous loon from Dallas County in 1978. It seems many of the things Thompson did set the stage for what happened later, and those were things that were hard to change once they got set in stone. This is the case first Jack Skeen, and now Matt Bingham have picked up and are using against me. This is the anatomy of a crime, with zero oversight and no interdiction from the State Bar of Texas.
Mickey Stevens
Unfortunately, things have not changed in Smith County in the decades since Kerry was originally tried. Prosecutorial misconduct is still commonplace. Jack Skeen mentored the current DA, Matt Bingham. This type of behavior has been passed down from one DA to the next. The fact that Jack Skeen is now a judge is hugely disturbing. This man committed egregious misconduct in many other cases as DA. Kerry's case may have been the worst, but it wasn't the only one. The Houston Chronicle wrote a series of articles about Skeen's DA's office in 2000 entitled "Win at all Costs." Still, even though his misconduct and egregiously unethical behavior was documented, Rick Perry appointed him to a vacant district judge seat. And, Skeen controls the local political machine which has assured his reelection.
The infamous "Mineola Swingers Case" is recent proof that nothing has changed in Smith County. In that case, Matt Bingham and one of his assistants withheld evidence and were even accused of hiding a witness. The DA in neighboring Wood County filed a 70 page amicus brief with the appellate court detailing the misconduct on the part of Smith County officials. Jack Skeen, as the judge on the case, was accused of planning strategy with the prosecutor. The convictions were overturned by the 14th Court of Appeals which said that Skeen invented ad-hoc rules of evidence to help the prosecution win. The opinion went on to detail the numerous ways in which Skeen violated just about every constitutional right of the defendants. This wasn't simply an error, but was inentional and deliberate. Yet, despite multiple complaints to the judicial conduct commission, he remains on the bench.
There are many, many other examples of this type of behavior that could be cited. In one of Kerry's recent hearings Bingham lied to the court. He told the court about a confession that never occurred. This man has absolutely no integrity.
One has to wonder if the citizens of Smith County will ever wake up and pay attention to what is going on there. I see some signs that things may be starting to change. But, this type of change seems to come slowly.
I've read just about everything I could find about Kerry's case. His innocence is beyond dispute. The fact that Bingham is still trying to fight it is beyond belief. Of course, he has a duty to protect his mentor, Skeen, and others in the system from embarassment. I believe that those in power there will stop at nothing to maintain their power. I'm not surprised that evidence was destroyed. It appears that the destruction was in violation of the law because it occurred after the law was passed requiring notification of the defendant. Yet, will Bingham and crew face any consquences. No, the laws don't apply to them (at least that's what they believe). This destruction of evidence in violation of the law is telling. It shows that they likely know that this evidence will show that Kerry is innocent.
There is a broader topic here that is beginning to be addressed. That of prosecutorial misconduct in general. This is a serious and pervasive problem. We have seen it happen over and over again. Anthony Graves is the next most prominent example. There's also the Morton case and many others, including some that have recently gone before the US Supreme Court (Connick v Thompson, McGhee v Pottawattamie). Currently, prosecutors enjoy absolute immunity. It is time to abolish that doctrine. There will be those who predict that the abolishment of absolute prosecutorial immunity will lead to dire consequences. Those assertions come from those who currently want to protect their lack of accountability. If the doctrine were abolished, prosecutors would still have qualified immunity. Qualified immunity is what police officers and other goverment officials have. If police officers are still able to perform their jobs with only qualified immunity, there is no reason why prosecutors can't also. Sure, there will be some increase in lawsuits, but, with qualified immunity the frivolous ones will be screened out early in the process, as they are now in cases against the police. Anytime you give people the type of power that prosecutors have with no accountablity, you are going to have abuses. Absolute immunity corrupts absolutely. If we truly believe in things like due process and justice, we cannot let these abuses continue. People like A.D. Clark, Jack Skeen, David Dobbs, and Matt Bnigham should be held accountable for their actions.
Vicki Johnston
Thank you Texas Tribune for this excellent and very important article.
"The account of the prosecuting attorney’s sustained and repeated determination to use treacherous lies, and induce others to do the same - - still going on to this day - - in order to convict an innocent person and to cause Kerry's death through our penal system, is beyond the grasp of the human heart. His story is the story of all stories when it comes to the abuses of the Texas legal system upon the innocent.
My concern, as the founding/director of the Robert Muller School, is how children grow up to be adults so corrupted by power. These conspirators’ behavior exemplifies everything we don’t want our children to become. On the other hand, the account of Kerry's steadfast courage, determination, resourcefulness, forgiving spirit and ability to stand the ‘eighth time after seven falls’, in the midst of the horrors brought to light in Chasing Justice, is the stuff of heroes. As one who knows the hunger of current generations for Heroes of the Heart, it affords me the greatest joy to see Kerry in the front field of RMS playing with, counseling, encouraging loving, and guiding our children who adore him. I thank God for Kerry, our own living, breathing example of an exemplary human, who, thanks to articles like this, is emerging victorious in the battle with the minions of darkness. We love you, Kerry."
Kathy Parker
The record is very clear in this case. Once the original suspect in this case retained the high-powered services of a very influential attorney named Buck Files, Smith County police and former district attorney A.D. Clark, III developed Plan B. Plan B became a "Psychological Profile" of the killer that called for the rapist and murderer of Linda Edwards to be a misogynistic, maniacal deranged, murderous homosexual. Kerry was 19 and living an open homosexual lifestyle and this, not the crime, became his undoing.
Matt Bingham is nothing more than the Smith County voice for more lies to cover up what is now known as the worst example of police and prosecutorial misconduct in Texas history.
The saddest part of Kerry's story is that Kerry got out at a huge cost: A.D. Clark, III, Jack Skeen and David Dobbs got out too, but without a scratch. The only person who has ever suffered in this case are the victim, Linda Edwards, and Kerry Max Cook....
Dr. Tim Jon Semmerling
As a citizen of Texas and an attorney of Illinois, I cringe every time I hear of Smith County’s continual mockery of justice in this case. How, I wonder, could our fellow citizens and members of our profession honestly believe that they are performing ethically when they are overlooking the truth and pulling out all the stops to make certain it cannot emerge? The prosecutors’ concerns in this news story are most revealing: they really worry and are driven more by the financial fallout further down the pike than the integrity of our profession, the rule of law, and human decency.
Moreover, I could find prosecutor Michael West’s comment, regarding Kerry’s efforts to prove his innocence, laughable if it wasn’t for the fact that the truth makes it so patently wrong and infuriating. Kerry’s award-winning book Chasing Justice (2008) is all about his uphill fight to expose his innocence and to shed light on the deplorable behavior of past and present Smith County prosecutors. Kerry’s lectures to legal, business, and youth organizations are filled with lessons of how zealous prosecutors have and continue to overrun justice in his case, and they are abundant with lessons of the human spirit’s triumph over adversity. I first met Kerry in 2010 when he was teaching defense teams at the Trial Lawyers College (DuBois, Wyoming) all about the mighty fight for their clients’ lives in the face of death penalty charges. There, he taught us about his own case, about the many people he knew who eventually lost their struggles and how those cases just might have won with compassionate defense teams. Not long afterward, I began teaching such courses with him to defense attorneys in Illinois. In every one of his lectures that I have witnessed, the audience is so moved that they rise in ovation for his fight to claim his innocence.
It’s time for Smith County to proclaim Kerry’s innocence and end this perpetual embarrassment, mockery, and madness. It’s long overdue for the Texas legal community to rise up and demand accountability for what is happening today. We can hear the silence all the way up here in Chicago…
Lucy Watkins
I don't understand all the legalities of this entire situation. It seems pretty basic to me. Powerful people made powerful mistakes and powerful egos continue to rule the roost. Meanwhile, not only has a young woman been murdered, a young man lost his life too. Despite all of the findings of his innocence/dna etc, he still carries the burden of powerful people's powerful mistakes.
We teach our children to take responsibility for their actions, to apologize and make amends. And yet, here sits a dear dear man with people fighting in his corner to help him but the powerful egos remain in charge of many decisions that have and will continue to affect Cook's life, his ability to live freely, to support his family and to be....
I wish I had the words.....
Debbie Zimm
I ran across this story out of Rockwall. It details a case of police perjury and withheld evidence. The ongoing cover up speaks volumes to the problem of prosecutorial misconduct. This fellow is a fugitive and refuses to surrender yet has taken his story public. The court has scheduled the 10th due diligence hearing. After all the stories of corruption in Law Enforcement and Texas DA's offices, who can fault this guy for not trusting the system? Here is a link with supporting documents:
https://docs.google.com/document/d/1nyzlyOROVYLQSaCXMlbQixwSK_rcP9uhXMJ4tg7LV9c/edit?pli=1
This goes beyond prosecutorial misconduct and is a glimpse into a future where no one trusts our "injustice" system.
Wendy Coe
Thank you Texas Tribune for this excellent article.
This story saddens my heart. A woman was killed and an innocent man was sent to prison for the crime. Over a period of several years, multiple examples of misuse of power and obvious framing were uncovered. Even DNA evidence proved that Cook was not the offender.
It is disturbing to know that any government agency would not right a wrong and give Cook a formal exoneration. His story seems to be a blantant example of misuse of the Texas legal system upon the innocent. I guess it is still a "good old boy network" after all. Smith County accused Cook of being a homosexual and therefore must be guilty.
Elle Prince
It is mind numbing that the Texas legal community will remain speechless as this abomination to justice unfolds before their very eyes. An innocent man had years of his human existence stolen from him for a crime he did not commit. What does that say about our justice system? What does that say about the state?
Rebecca Stewart
I just don't get how the Texas legal system can stand by and watch this happen to him without doing anything. Why isn't anyone intervening and holding the officials in Mr. Cook's case accountable?
This story, is like Dale Curry said, the best argument for the abolition of the Death Penalty. Maybe it's rare that someone innocent is caught in it, but it DOES happen. Is it really worth having few innocent punished, just so the guilty also can be?
van quattro
This is a horror story. Reprehensible behavior ruins a mans life, and the cover up is so deep that it cannot be penetrated. Justice must be served regarding all this type of behavior. We still,, to this day, hunt the nazis, lets get caught up in this country. Make our justice system accountable for their crimes. We need a united front, not just special interest groups, to keep an eye on these judicial criminals and see to it that truth shall prevail.
Cristie Shultis
As someone who knew Kerry and his family for years while he was doing "The Exonerated", I am shocked to see what he is still having to go through with Smith County on his road for exoneration. Kerry, i pray that your day comes soon and cannot wait for the day when i hear that you have offically been exonerated. I know it has been a long hard road but you deserve so many great and wonderful things in life that i know will come your way!!
jessica blank
Thank you, Texas Tribune, for this excellent article. If Smith County is going to be so intractable, one would hope that someone else in the Texas criminal justice system would take notice of this gross miscarriage of justice and take steps to correct it. It's shameful that miscarriages of justice like this are allowed to continue when our Constitution gives us such an extraordinary blueprint for a truly just system.
c elwes
My name is Cary Elwes and I had the privilege of portraying Kerry Max Cook's story several years ago in "The Exonerated." Since then, Kerry and I have become very good friends and I have followed his story intently, particularity Kerry's new efforts with Smith County to have his wrongful conviction recognized in the death of Linda Edwards.
Former 1977-78 Smith County District Attorney A.D. Clark, III created the pernicious misconduct that made up a case against Kerry based on "fraud" and by engaging in "fraudulent tactics." These are the words of the Texas Court of Criminal Appeals. ("Most of the prosecutorial errors" were NOT remedied by the third trial, Brandi. Smith County District Attorney Jack Skeen and David Dobbs greatly expounded on the misconduct by re-using everything A.D. Clark made up through all the trials Kerry faced! The 1996 Texas Court of Criminal Appeals Opinion that reversed the conviction gained under Jack Skeen in 1994 was in grave error when it stated that in a footnote.)
Kerry finally got his wrongful conviction reversed in 1987 but only to face A.D. Clark's first cousin, Smith County District Attorney Jack Skeen and his unscrupulous assistant, David Dobbs. Skeen and Dobbs simply adopted all that A.D. Clark, III did to create a false case against Kerry and pushed it through nearly three more jury trials in the '90's, until they were finally, in Williamson County of all places, able to get a second conviction and death sentence.
Today, Jack Skeen is a District Judge and David Dobbs is his campaign treasurer. Who is it Kerry faces in his 2012 renewed efforts to try and prove these former officials lied, cheated, broke the law to gain an arrest and conviction(s)? Jack Skeen's handpicked successor, District Attorney Matt Bingham. What has Matt Bingham done thus far? Bingham has adopted the same 1978 set of lies A.D. Clark, III and his first cousin, Jack Skeen used to portray Kerry as guilty to avoid an appearance of criminal wrong doing. Bingham lied numerous times in court this past April, embracing the same pernicious misconduct. The most notable lie was that there was a confession that Kerry committed the crime from a dead witness named Robert Hoehn. Ironically, the April hearing was for removal of Smith County Judge Christi Kennedy to attempt to have a neutral judge from outside Smith County hear the case to stop the coverup. Bingham's basis for keeping the Kerry Max Cook case in Smith County -- any misconduct was long cured and the new District Attorney's office had no bias against Kerry. His readiness to lie in court and adopt the aspects of the case that were proven to be false by the Texas Court of Criminal Appeals obviously belies Bingham's claim.
It is hard to understand how such rules governing a Texas prosecutor can exist, as codified in the Texas Disciplinary Rules of Professional Conduct, and yet, A.D. Clark, Jack Skeen, David Dobbs, Matt Bingham can be exempt and not be held accountable. There is no oversight. In Texas: the fox (prosecutors) are guarding the henhouse (the truth in Kerry's case).
I read the comments of Rob Kepple, the executive director of the Texas District and County Attorneys Association with disdain. “There’s a lot of folks out there really straining too hard to overstate the extent of the problem." I wished Rob Kepple could try to be Kerry Max Cook for awhile in his ongoing fight with Smith County.
It's time Texas prosecutors were held accountable for the criminal acts they have committed to secure convictions in the cases of Kerry Cook, Michael Morton, Earnest Willis, Clay Chabot, Billy Allen, just to name a few.
Schelly Corry
Honest people have nothing to hide. Kerry Max Cook has put himself out there to be seen and picked apart with nothing to hide. Smith County on the other hand seems to desperately want to keep this case in their own hands, very much a secret. Kerry Max Cook is innocent of this horrible crime. He served 22 years that he didn’t have to. He lost 22 years of his life and these people are worried about losing face about admitting they were wrong? They deserve to be in prison. They at the very least should be disbarred, removed from office and shunned for what they have done.
The state of Texas needs to stop Smith County. Kerry Max Cook deserves to have this case heard by fair and impartial humans. It is clear that the people in Smith County are not impartial and have set out on a vendetta towards anyone that challenges them. What an embarrassment to the state of Texas. Why won’t someone do something?
It is obvious that Kerry Max Cook is innocent and deserves to be exonerated at the very least. These people are so low down and dirty that they can’t even man up enough to admit they messed up and ruined an innocent man’s life and they are still trying to hurt him. It boggles the mind. Kerry Max Cook deserves every dime he can get out of them.
These Smith County employees should be made to give Cook an amount equal to 22 years of their own salaries. There is no amount of money in the world that can make 22 innocent years spent on Texas Death Row ok. The fact that they are even trying to color Kerry Max Cook in a negative light, as only looking for money shows how desperate they are to make him look bad. It can’t be done! Kerry Max Cook is innocent and Smith County you are not. Cook deserves every dollar that can be squeezed out of this good for nothing legal system. Starting with their own paychecks!
This article mentions that in an interview earlier this year, Assistant Smith County District Attorney Michael West questioned Cook’s motives for pursuing exoneration more than a decade after his release. “It seems like if I was all fired up and gung ho about being innocent, I wouldn’t have waited so long,” West said.
Really? Wow! Words spoken by a man looking for something, anything to say to try and deflect the truth of the matter. If I had just spent 22 years in a hell hole and barely made it out alive, it would take me a long time to pull myself together. This comment just shows how ignorant and how out of touch with reality these people are. Let’s see how Mr. Michael West feels after 22 years on death row for a crime he didn’t commit.
Keri Mallon
Such an injustice to Mr. Cook & it amazes me that the injustice continues today with no hesitation. It's very sad & unfortunately Mr. Cook is not the only victim in the Texas system, there are countless others.
Jonathan Perri
Kerry Max Cook has started a petition that more than 70,000 people have signed. It can be found here: http://www.change.org/kerry
Megan Berry
I'm confused; perhaps I don't understand politics.
I don't understand why the DA's Office wouldn't welcome third party oversight or for the trial to be moved. If they are confident in their work, it should stand on its own regardless of who the players are or what the jurisdiction is. The only reason I can see for their fighting the trial to be moved out of Smith County is if they don't actually stand by their work. If I were a taxpaying Texan I'd be very angry that my tax dollars were being spent on another incredibly expensive trial where the prosecutors and judges all have an arguable conflict of interest. Justice is supposed to be impartial but an impartial outcome is not possible in a tight nit community where so many professionals have so much personally at stake on a predetermined outcome. As legal professionals, they should be asking to be recused rather than putting the onus on the defendant let alone fighting the defendant's request on this matter.
Finally, where is the constitution in all of this? I don't understand how this is even constitutional; from the cruel and unusual punishment Mr. Cook suffered in prison to the multiple jeopardy he seems to have been subjected to after his release. I'm surprised that Federal Court or even the Supreme Court hasn't taken control of all of this (but I'm a legal novice).
Thank you for publishing this important article.