The Texas Tribune | Objection Overruled
As Former Death Row Inmate Tries to Clear His Name, His Life Is on Hold
By BRANDI GRISSOM
Published: July 5, 2012
Kerry Max Cook had been out of prison for about three years when his son was born.
Mark Graham for The Texas Tribune
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As Kerry Justice Cook slept in his crib, his father would peer down at him and cry, battling suicidal thoughts that he says have haunted him since his 20 horrific years on Texas’ death row.
“I’d tell K. J., ‘You’ve got to hurry up so you can talk to me. I’m so alone,’” Mr. Cook said.
K. J. is 11 now, and talking seems to be one of the mature youth’s fortes. He introduces his father to crowds at speaking engagements across the world.
“I find it quite amazing that he was able to go there for 22 years and go through every obstacle which he had to go through,” said the fifth grader, wearing a Mickey Mouse T-shirt and brushing shoulder-length blond hair away from his face. “I think he’s the most respectable man that I know.”
Mr. Cook, 56, was convicted of the 1977 rape and murder of Linda Jo Edwards in Tyler, Tex. 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 Mr. Cook a fourth time, he agreed to a plea deal in 1999. Pleading no contest, he was set free. DNA testing subsequently revealed another man’s biological matter on the victim’s clothes.
Mr. Cook has written a book, actors like Tim Robbins have portrayed him in a play about exonerations and he teaches courses about overcoming adversity. In the eyes of the law, though, Mr. Cook is still a convicted murderer. Normal life, he said, is beyond his reach.
“This freedom means nothing with a conviction,” he said.
Thirteen years after his release, Mr. Cook is battling with Smith County prosecutors to officially clear his name. He is seeking new DNA testing that he hopes will result in the addition of his name to a list of at least 86 convictions in Texas that were overturned from 1989 to 2011. In an analysis of court rulings, news reports and pardon statements in each of the 86 cases, The Texas Tribune found that in nearly one-quarter of the cases — 21 in all — courts ruled that prosecutors had made errors, most of which contributed to the wrong outcome.
The State Bar of Texas said that it had publicly disciplined very few prosecutors in recent history, though. Some lawmakers and criminal justice reform advocates have called for increased accountability for prosecutors whose errors result in wrongful convictions that forever change the lives of innocent people and their families.
Mr. Cook is trying to move his case out of Smith County, where, the Texas Court of Criminal Appeals ruled, prosecutorial and police misconduct “tainted this entire matter from the outset.”
“Everything that could go wrong in the prosecution did, and has, and still continues to,” Mr. Cook said.
Smith County prosecutors, past and present, insist that Mr. Cook is guilty. Matt Bingham, the Smith County criminal district attorney, declined to comment.
During Mr. Cook’s first trial, in 1978, prosecutors argued that he had beaten, stabbed and mutilated Ms. Edwards, who lived in the same apartment complex as him, in a sexual frenzy triggered by a movie that depicted a cat mutilation. At age 22, Mr. Cook was sentenced to death.
When Mr. Cook’s death sentence was reversed in 1996 by the Court of Criminal Appeals, the judges cited the prosecution’s “numerous undisputed acts of mis-conduct.”
The court ruled that prosecutors did not tell Mr. Cook’s lawyers that the 16-year-old daughter of James Mayfield, Ms. Edwards’s boss with whom she had been having an affair, had made repeated death threats against her.
The affair became public after Ms. Edwards attempted suicide, and Mr. Mayfield was forced to quit his job as a dean at Texas Eastern University (now the University of Texas at Tyler). Mr. Mayfield, his wife and his daughter said they were home on the night of the killing, and no one from the family was charged with a crime. Efforts to reach Mr. Mayfield through his former attorney were unsuccessful.
Prosecutors also misrepresented to the jury a deal they made with a jailhouse informer, the appeals court ruled. The informer, Edward Jackson, testified that Mr. Cook confessed to the killing, but he later admitted he had lied.
While most prosecution errors had been remedied by the third trial, the court said, that proceeding, too, was tainted by the use of testimony from a witness who gave conflicting statements to the grand jury and trial jury about whether Mr. Cook had watched the movie said to have inspired his sexual brutality.
The court overturned Mr. Cook’s conviction but allowed Smith County to prosecute him again. In 1999, as Jack Skeen, the district attorney at the time, prepared to seek the death penalty in a fourth trial, semen found on Ms. Edwards’s underwear was submitted for DNA testing. Before the test results were revealed, Mr. Skeen offered Mr. Cook a plea deal.
Mr. Cook was 42. His brother had been murdered, and his father died while Mr. Cook was in prison. On death row, Mr. Cook said, he had been repeatedly raped and abused. He pleaded no contest, refusing to admit guilt but knowing that he would legally remain a convicted murderer.
Later, the DNA analysis showed that the semen belonged to Mr. Mayfield, who had testified that he and Ms. Edwards had not had sex for weeks before her death.
“I was wrongly convicted,” Mr. Cook said. “But you just have the stain, you have the scarlet letter.”
After the testing, The Associated Press reported, Smith County investigators said that the DNA results could not show when the semen was deposited and that the evidence did not implicate Mr. Mayfield.
With a murder conviction and a 20-year hole in his résumé, Mr. Cook said, finding regular employment is tough. “Today, I’m just as poor as the day I walked out” of prison, he said.
Mr. Cook is making a final effort to clear his name, asking for DNA testing on the remaining evidence. If the case remains in Smith County, he says, he fears that the outcome will be unfair.
As in other cases where prosecutorial errors contributed to overturned convictions in Texas, the prosecutor who originally tried Mr. Cook, A. D. Clark III, was never publicly disciplined by the state bar despite the appeals court’s rebuke of work done by his office. Mr. Clark, now a lawyer in the Texas attorney general’s regional office in Tyler, declined to be interviewed but has denied wrongdoing.
Mr. Cook and his lawyers say they have uncovered other oddities in the Smith County prosecutor’s files. They learned, they said, that one of the lead investigators in the case kept the murder weapon at his home. And much of the evidence, they said, was destroyed without Mr. Cook’s knowledge shortly after the state passed a law requiring defendants to be notified.
While Smith County agreed to the new DNA testing, the current prosecutor, Mr. Bingham, has fought to keep the case in Tyler. He argued that the prosecutors accused of misconduct no longer work there and that the judge assigned to the case has demonstrated no bias against Mr. Cook. In court filings, Mr. Bingham wrote that Mr. Cook and his lawyers have presented a “litany of unfounded and bad-faith charges” against the county.
Mr. Cook says he just wants his life back. “There’s not enough money in the world to pay me for what they’ve done to me,” he said.
K. J., meanwhile, says the battle has been hard on his father. But he says he understands. “To have a dad that’s gone through this much, and to have a dad who went through this and is still alive today and standing tall, is quite amazing.”