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Filing by Cook alleges prosecutor kept murder weapon

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by Brandi Grissom, The Texas Tribune

AUSTIN (THE TEXAS TRIBUNE) - Updated at 12:15 p.m. on May 1 to include response from former Smith County district attorney A.D. Clark III, denying the allegations.

The prosecutor who sent Kerry Max Cook to death row in 1978 for a gruesome stabbing death has kept the blood-soaked murder weapon at his home for the last decade as a macabre "souvenir" of one of Tyler's most infamous and brutal killings, according to a motion the former inmate's lawyers filed Monday in Smith County.

Along with the knife, former Smith County District Attorney A.D. Clark III — now with the Texas attorney general's office — also kept a slide with samples of Cook's hair, the former inmate's lawyers allege. 

"The rather odd practice of Mr. Clark keeping evidence of a murder case in his personal possession raises many questions, both legal and psychological," lawyers wrote in a motion asking an administrative judge to reconsider his decision last month to allow Cook's case to remain in Smith County despite court findings of prosecutorial misconduct there in the past.

Clark said he completely denies the allegations "in every respect."  

What's more, Cook's lawyers argue, former Smith County prosecutors illegally destroyed much of the remaining evidence in the case that may have contained DNA that could have been tested to help prove Cook's innocence. And, they said, the current district attorney lied about facts of the case during a court hearing last month.

"These acts of prejudice and malice have crippled Mr. Cook's efforts to defend himself and establish his innocence over the past 35 years," Cook's lawyer, Marc McPeak, wrote. "For the reasons stated and discussed herein, among many others, no Smith County judge should be permitted to preside over Mr. Cook's case."

Smith County District Attorney Matt Bingham did not return phone calls seeking comment. 

Cook, then 22, was convicted of the 1977 murder of Linda Jo Edwards after prosecutors convinced the jury that he bludgeoned and stabbed her to death, cut out her genitalia and stuffed them in the leg of one of her stockings. 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. But 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 pleaded no contest and was set free.

Cook avoided the risk of another trial, but he is still legally considered a murderer. Only after Cook signed the agreement with prosecutors did DNA testing reveal that the semen of James Mayfield — with whom Edwards had an extramarital affair — was on the victim's panties. Mayfield, who told authorities on the night of the murder that he was with his wife and daughter, has never been charged in relation to the crime. And Smith County prosecutors have said the DNA results don't mean Cook didn't commit the crime. 

In the years since his release, Cook has steadfastly maintained his innocence and is now seeking legal exoneration. He filed motions earlier this year requesting to test any and all DNA that remains in the case and to move the case out of Smith County. Cook argues that because of the long history of prosecutorial misconduct in his case, he can't get a fair hearing there.

The Texas Court of Criminal Appeals found that, among other things, prosecutors did not reveal that Mayfield's daughter was known to police to be mentally unstable and had made death threats against Edwards. According to the court ruling, prosecutors also misrepresented a deal they made with a jailhouse snitch who testified that Cook confessed to the crime. And, the court found, prosecutors pressured a police sergeant to give misleading and unscientific testimony that Cook's fingerprints in Edwards' apartment were fresh. 

Former prosecutors in Cook's case have denied allegations of misconduct. 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.

"The current administration in the Smith County district attorney's office is far removed from that which was held responsible for the defendant's first two jury trials," he said during the hearing.

Administrative Judge John Ovard granted Cook's request for DNA testing, but he declined to remove the case from Smith County.

Cook's lawyer, in the motion filed Monday, asked Ovard to reconsider his decision not to move the case based on the new discoveries about the destroyed evidence and "souvenirs" and based on what he described as misrepresentations of the facts by the current district attorney, Matt Bingham.

In an April 20 phone conference call with Ovard, Cook's lawyer wrote that Mike West, an assistant district attorney for Smith County, said that former district attorney Clark had kept the murder weapon, along with a slide containing biological material, in his possession for nearly a decade.

"Mr. West's explanation for this bizarre and improper circumstance was that Mr. Clark had retained the evidence as ‘souvenirs,'" McPeak wrote. "The circumstances of Mr. Clark's acquisition of this evidence is required, as is an explanation as to why a former prosecutor would even want to keep such a grotesque item in his personal possessions."

An investigator named Eddie Clark was also involved in the case, and McPeak acknowledged there could have been confusion about the names involved. But, McPeak said, West made no effort to correct the record if there was confusion, and even if someone else kept the knife as a souvenir, the concern remains about the ethical behavior of law enforcement in the county.

In addition, McPeak wrote in the filing, the defense learned that in December 2001, Smith County prosecutors destroyed much of the key physical evidence in the murder case without notifying Cook's lawyers. 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.

Among the items destroyed were Edwards' bra, panties and jeans — during Cook's second trial in 1992, jurors found the stocking that was alleged to have contained her genitalia, empty inside the pair of jeans — and all the latent fingerprints found at the scene.

Cook's lawyer also argued that Bingham was untruthful during the April 9 hearing when, among other things, he told the court that Robert Hoehn, who has since died but was a witness at Cook's original trial, confessed that he and Cook had committed the murder together.

"No such testimony, or frankly anything even remotely similar, exists; the district attorney knew as much yet proceeded to offer these inflammatory and highly prejudicial misstatements in open court," McPeak wrote.

The motion also cites the personal relationships of Judge Christi Kennedy, who would be assigned to oversee the Cook case. Kennedy serves on the bench alongside state District Judge Carole Clark, the wife of A.D. Clark III, who tried Cook originally. She also serves with state District Judge Jack Skeen, who was the prosecutor during Cook's subsequent trials. Skeen is also former prosecutor Clark's first cousin. And Kennedy's husband was an assistant district attorney under Skeen when he was prosecuting Cook.

The recent revelations, Cook's lawyer wrote, spark more serious questions about the ability of Smith County to fairly determine whether the man who spent two decades on death row and is now a father and husband is actually innocent.

"A reasonable member of the public at large will also ask these very same questions," McPeak wrote.

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