Update, May 15, 9 p.m.:
Kerry Max Cook's fight to legally prove his innocence in the 1977 murder of Linda Jo Edwards will stay in Smith County for now, after a judge on Monday denied a second request to move the case out of the jurisdiction where courts have ruled that prosecutors in the case had committed "egregious" misconduct.
Administrative Judge John Ovard signed an order denying Cook's request, a move the former death-row-inmate-turned-author and motivational speaker said could doom his chances for a fair hearing.
"What are they afraid of?" Cook asked. "We are just asking for a neutral judge."
Smith County state district Judge Christi Kennedy will be assigned to Cook's case. Her husband worked for one of the former prosecutors who sent Cook to death row. Cook said he worried that Kennedy will be unable to objectively consider the work of Jack Skeen and A.D. Clark III, the prosecutors who previously tried him. Skeen is a state district judge and colleague of Kennedy's and her husband's former boss. And Clark, who now works for Texas Attorney General Greg Abbott in Tyler, is married to a state district judge who works alongside Kennedy.
Prosecutors in Smith County have argued that Cook can get a fair hearing there and that current law enforcement authorities had nothing to do with the decades-old case. Everything about the county is different now, Michael West, an appellate lawyer in the Smith County district attorney’s office, has said.
Former death row inmate and author Kerry Max Cook, whose lawyers are working to officially exonerate him in a 1977 rape and murder, is asking a judge to conduct a hearing to determine what evidence is still available for DNA testing to finally establish his legal innocence.
The request comes after Cook discovered that much of the physical evidence in his case was destroyed and that someone in Smith County law enforcement — there's a dispute over whether it was a former prosecutor or an investigator — kept the murder weapon and samples of Cook's hair as a "souvenir" from the brutal murder of Linda Jo Edwards.
"Serious questions have been raised as a result that must be answered as a part of the DNA Motion," Cook's lawyers wrote in a motion filed Tuesday.
Cook was sentenced to death in 1978 for Edwards' murder after prosecutors convinced the jury that he bludgeoned and stabbed her to death. He professed his innocence, and the guilty verdict was ultimately overturned. A second trial ended in a mistrial, and he was again found guilty and sentenced to death in a third trial. An appeals court overturned that decision, finding “egregious prosecutorial misconduct” in the case. When Smith County offered Cook a plea deal in 1999 before what was to be his fourth trial, he agreed. He refused to admit guilt but pleaded no contest and was set free. He is considered a killer in the eyes of the law despite subsequent DNA testing that in 1999 revealed that another man's semen was on Edwards' underwear.
Now, Cook is seeking additional DNA testing to legally clear his name, but he argues he doesn't stand a fighting chance if his case remains in Smith County, where the courts have found that prosecutors committed misconduct in the past.
Earlier this week, Cook alleged in a motion filed with the court that former prosecutor A.D. Clark III had kept the blood-soaked knife used to murder Edwards and a sample of Cook's hair. According to the motion, Smith County Assistant District Attorney Mike West said during a phone conversation with Cook's lawyers and with Administrative Judge John Ovard that Clark kept the items as "souvenirs."
Clark, however, denied those claims "in every respect."
West told The Associated Press that the former prosecutor had nothing to do with the "souvenirs." He said it was Eddie Clark, a Tyler police sergeant, who took the items from the evidence room.
“They’ve just totally misrepresented that in the motion," West told the AP, adding that no charges were expected against the officer.
But Marc McPeak, Cook's lawyer, has said that during the phone conversation with Ovard, West had several opportunities to clarify the "Clark" to whom he referred.
"Even if I heard him wrong, he had every opportunity to correct me," McPeak said.
Judge Ovard did not immediately respond to a message from the Tribune requesting comment, and Smith County District Attorney Matt Bingham, through a spokeswoman, declined to comment, citing the ongoing litigation.
In the motion filed Tuesday, Cook's lawyers wrote that a hearing is needed to answer dozens of questions about what has happened to DNA evidence in the case. In a list of existing and destroyed evidence created by Smith County, prosecutors reported destroying much of the evidence that might have contained biological material, including Edwards’ bra, panties and jeans, and all the latent fingerprints found at the scene.
The destruction came just months after lawmakers passed a 2001 law that allowed for post-conviction DNA testing and required prosecutors to notify defendants before destroying evidence that might contain biological material. Cook's lawyers say the destruction was illegal because the defense was never notified.
And given previous findings of prosecutorial misconduct in the case, in the motion filed Tuesday, Cook's lawyers also argue that further investigation is needed into the state of the evidence.
"The Smith County District Attorney and Tyler Police Department 'say' that a significant amount of evidence has been destroyed. Of course, over the history of this case, the district attorney and police have said many things that were later shown to be false," Cook's lawyers wrote.
In a separate filing, Cook's lawyers also urged Smith County Judge Christi Kennedy to follow the example of the Williamson County judge who recused himself in the case of Michael Morton.
Morton was exonerated last year after DNA evidence showed he did not murder his wife in 1986. He served nearly 25 years of a life sentence in prison before his October release.
In that case, Williamson County Judge Billy Ray Stubblefield recused himself. His decision would require him to make a judgment about the conduct of his longtime colleague, Williamson County Judge Ken Anderson, the prosecutor who secured Morton's conviction.
Similarly, Cook's lawyers argue, Kennedy would have to judge the work of her colleague, Smith County Judge Jack Skeen, who was the prosecutor during Cook's second, third and fourth trials.
"Just as Judge Stubblefield felt it was inappropriate to preside over a case where alleged misconduct by one of his colleagues on the Williamson County bench was at issue, it is equally inappropriate for Judge Kennedy to do so," they wrote.
Bingham, the current district attorney, argued in an April 9 hearing that Cook is guilty and that current court personnel have no connection to previous alleged wrongdoing.