TYLER (TYLER MORNING TELEGRAPH) - The preserved frozen evidence from a decades-old Tyler murder case is on its way to a private lab in Dallas for testing — after attorneys for the man convicted of that murder filed motions in Smith County in February to have it retested.
Judge John Ovard, presiding judge of the First Administrative Judicial Region in Dallas, signed the order on May 23 for the DNA evidence from the 1977 Kerry Max Cook case to be sent from two state labs to Orchid Cellmark, a private lab, Smith County Assistant District Attorney Mike West said on Thursday. The DNA testing could take weeks, and there is no timeframe for the testing to be completed, West said.
Cook asked for the retesting, hoping that it could exonerate him in the murder of Linda Jo Edwards.
Ovard ruled in April that the DNA evidence collected from the crime scene in 1977 could be retested.
After initially being convicted of capital murder and placed on death row in 1978, his case was overturned in 1989 because a psychologist had not read Cook his Miranda Rights, thus rendering all information in the psychological interview useless.
Cook was not freed because he remained under indictment of capital murder.
Judge Jack Skeen Jr., who was the Smith County district attorney at that time, tried twice more to convict Cook for Ms. Edwards' murder.
In 1992, Smith County tried the case, but the jury ended deadlocked, so the case stalled. In 1994, Cook was found guilty of capital murder when the state used the testimony of a male witness who had died.
The male witness, who lived in the same apartment complex as Ms. Edwards, said he had an encounter with Cook the night of the murder, according to court documents.
In exchange for his plea of no contest, Cook was convicted of murder but sentenced to the time he already served. He was then a free man.
But his attorneys, Marc McPeak and Gary Udashen, say a cloud has hung over their client, and they now want him exonerated. They said in a February filing that additional biological evidence found in Ms. Edwards' underwear matched the DNA profile of a married man with whom she was having an affair at the time of her death.
The Southwest Institute of Forensic Science in Dallas and the Texas Department of Public Safety labs will send the evidence to Orchid Cellmark, West said.
The Southwest Institute will send a sample of blood from Ms. Edwards' jeans, trace material from the hair on her head and trace material from her stockings, West said. The DPS lab will send evidence, including a portion of the victim's underwear with DNA on it, two stains from the victim's bra and blood specimens from Cook and from the man with whom Ms. Edwards was having the affair.
"The lab (Orchid Cellmark) will probably run tests on blood samples from Kerry Max Cook ... and compare the DNA to swabs and stains to see if they match the other pieces of evidence," West said. As long as the evidence is stored in a cool environment, it can be preserved and tested.
Depending on what the evidence shows, there could be another hearing to determine how to proceed in the Cook case, West said.
He added that the Smith County District Attorney's Office has additional evidence that it is recommending for testing, including a knife, a hair found next to the victim's head, a bedspread and pillow with blood on it, cigarette butts found in an ashtray in the victim's bedspread, a blouse belonging to Ms. Edwards and the contents of a vacuumed portion of carpet from between the victim's legs.
"We have established a chain of custody on the Smith County evidence," West said. McPeak, when reached by phone on Thursday, said he would have no comment on the sending of the evidence until the testing has been completed.
Judge Christi Kennedy of the 114th District Court would be the presiding judge in any future hearings in the Cook case.
In March, McPeak and Udashen filed a motion for Judge Kennedy to recuse herself because, they contended, she could not be fair or impartial on rulings she might make in the case. The reason, they said, was because some of her colleagues on the bench and their families were involved in Cook's prosecution in his previous trials.