Attorney's file another motion to clear Cook

TYLER (TYLER MORNING TELEGRAPH) - Attorneys for a Tyler man freed from death row in 1997 after serving 19 years for a decades-old murder charge have filed another motion in an attempt to fully exonerate his name.

Kerry Max Cook's attorneys filed a petition for writ of mandamus to recuse 114th District Judge Christi Kennedy from the case "because a reasonable member of the public would not believe her to be able to preside impartially over Mr. Cook's allegations that her own judicial colleague, (241st District) Judge (Jack) Skeen, unlawfully suppressed DNA evidence of Mr. Cook's innocence in 1999 and otherwise violated his constitutional rights."

The legal maneuver is the latest attempt to ensure Cook's fight to clear his name does not take place with Smith County justices on the bench. Judge Kennedy would determine whether DNA evidence Cook's attorneys believe to be objectionable would be allowed for testing.

Cook is seeking exoneration from a 1977 murder charge. Cook was sentenced to die in 1978, but the conviction was overturned in 1989 on a technicality. He was tried again in 1992, but the proceedings ended in a deadlocked jury. Cook was found guilty in 1994, but the verdict was reversed by the Court of Criminal Appeals two years later.

According to the appellate court, "Prosecutorial and police misconduct has tainted this entire matter from the outset. Little confidence can be placed in the outcome of the appellant's first two trials as a result, and the taint, it seems clear, persisted until the revelation of the state's misconduct in 1992."

Skeen, the district attorney at the time, began mounting a fourth attempt to convict Cook. But before the trial began, Cook was offered a plea of no contest with no admission of guilt for dismissal. He took the deal.

The plea deal did not declare Cook not guilty, and his name is still connected to the 1977 rape and murder of Linda Jo Edwards.

Police found Ms. Edwards' body in her apartment on Old Bullard Road in June 1977. She was beaten in the head with a plaster statue, stabbed in the throat, chest and back more than 25 times and sexually mutilated.
Police said Cook's fingerprint was on her sliding glass door.

But Cook said he met her at the apartment complex's swimming pool and went to her apartment. He denied killing Ms. Edwards.

According to February court filings regarding additional DNA evidence tested, Ms. Edwards was having an affair with a married man, her former boss.

In the weeks before Ms. Edwards' murder, the man moved in with Ms. Edwards, then moved back in with his wife, according to the February filing. When Ms. Edwards said she would date other men, the man became very angry, the filing stated.

Assistant District Attorney Mike West, who is working on Cook's DNA motion, said he filed a motion to dismiss the writ of mandamus. He said First Administrative Judicial Region Judge John Ovard assigned Judge Kennedy to the DNA hearing and that he does not expect a new judge would be assigned.

West said his office has expressed a willingness to make all evidence in the case available for testing.

"Our response was, 'Let's test everything," West said. "It makes no sense for us to prevent access from anything."

But to McPeak, testing "everything" would mean including evidence he said was improperly handled.

In a July letter to Assistant District Attorney Michael West, Cook's attorney Marc McPeak cited concerns about specific DNA evidence, including the murder weapon, a knife taken from the evidence room by a Tyler police officer for more than a decade after the prior trials. Some evidence was destroyed.

McPeak said whether intentional or inadvertent, the facts raise "significant concern that the evidence from Mr. Cook's case has been mishandled or tampered with, particularly when considered against the backdrop of official misconduct and abuse of power that has plagued this case from the outset."

McPeak and attorneys with The Innocence Project in New York did not respond to numerous requests for comment regarding the proceedings.

Oral arguments regarding the writ of mandamus and motions to dismiss are set for Nov. 1, West said.


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