Kerry Max Cook, who spent two decades on death row for a 1977 murder, says Smith County prosecutors are fighting dirty in their mission to stymie his efforts to prove his innocence.
In a motion filed Wednesday in Smith County state district court, Cook argues that prosecutors have resorted to lies and fabrications to prevent DNA testing on evidence he hopes will prove, more than 35 years after the crime, that he did not kill Linda Jo Edwards.
"Our motion to strike contains an absolutely irrefutable record of deliberate egregious misrepresentations by" prosecutors, Cook said in a prepared statement.
Cook, 56, was convicted in 1978 of the rape and murder of Linda Jo Edwards in Tyler. His first conviction was overturned, a second trial ended in a hung jury and a third ended with a conviction that was reversed after a court found it was tainted by prosecutorial misconduct. Before Smith County attempted to try Cook a fourth time, he agreed to a plea deal in 1999. Pleading no contest, he was set free. Subsequent testing revealed another man’s DNA on the victim’s clothes.
After Cook's lawyers requested additional DNA testing on evidence in the case, they discovered some evidence had been destroyed and the storage of other evidence had presented questions regarding its chain of custody.
The lawyers have asked for a hearing to decide whether the evidence has been so tainted that accurate DNA testing could be impossible. Smith County prosecutors argue the request for a hearing is an effort by Cook to delay the testing because they allege he is worried the testing will confirm his guilt. In their motion to strike the prosecutor’s motion opposing the hearing, Cook’s lawyers say the document is full of misrepresentations and should be stricken from the case record.
In a motion filed in December, Smith County District Attorney Matt Bingham argued that Cook “has already accepted responsibility for this horrendous crime under oath” and that he “wishes to collect the million plus dollars he would be entitled to if he can somehow slither his way into an exoneration.” Bingham also said that another witness in the case admitted to committing the crime with Cook. In the motion, the prosecutor also objects to Cook’s claims that he was convicted based on “perjured testimony, suppression of exculpatory evidence and a virtual horror show of prosecutorial misconduct.”
But Cook did not admit that he killed Edwards. In agreeing to plead no contest, he maintained his innocence in documents filed with the court. Cook's lawyers said there is also no record of trial testimony from another witness admitting he and Cook murdered Edwards. And the Court of Criminal Appeals ruled in 1996 that the Smith County prosecutors committed “numerous undisputed acts of misconduct” that began during the trial that initially sent Cook to death row.
“They’re not just opposing Kerry’s bid to exonerate himself, but they’re saying all kinds of things about evidence at the trials that just isn’t true,” said Nina Morrison, staff attorney at the New York-based Innocence Project.
Morrison, one of the attorneys working on Cook’s case, was also instrumental in the 2011 exoneration of Michael Morton, who was convicted in 1987 of murdering his wife. The Williamson County prosecutor who saw to Morton’s conviction and nearly 25 years of wrongful imprisonment now faces a court of inquiry and state bar lawsuit over, among other things, allegations that he lied to the court during the trial.
“You would think that after the Morton case, prosecutors would be more careful about what they say about defendants in DNA cases,” Morrison said.
But finding and ensuring the integrity of DNA evidence from a crime three decades old has proven a challenge. Cook’s lawyers discovered that the lead investigator in the case kept the blood-soaked murder weapon in his attic for the last decade as a “souvenir” of one of Tyler’s most infamous and brutal killings, along with a slide containing a sample of Cook’s hair. The state's chain of custody records also indicate that Clark conducted "field or laboratory" tests with the evidence.
They also learned that in December 2001, Smith County prosecutors destroyed much of the key physical evidence in the murder case without notifying Cook’s lawyers. Among the items destroyed were Edwards’ bra, panties and jeans, a hair found on her buttocks and all the latent fingerprints found at the scene. The destruction came just months after lawmakers passed the 2001 law that allowed for post-conviction DNA testing and required prosecutors to notify defendants before destroying evidence that might contain biological material.
Bingham did not return phone calls seeking comment for this story.
Paul Nugent represented Cook during his appeals from death row from 1991 until 1999, when he pleaded no contest and was released from prison. Nugent said Cook has maintained his innocence since the day he was arrested in 1977.
“A courtroom is a temple and a temple for the truth,” Nugent said. “It’s about justice; it’s not a game.”