Kerry Max Cook was twice convicted and sentenced to death for the rape and stabbing of 21-year-old Linda Jo Edwards in Tyler. After courts overturned both convictions, he pleaded no contest to murder in 1999 in exchange for a sentence of time served and went free.
Now, Cook, 56, is asking for new DNA testing of evidence to demonstrate his innocence. Prosecutors don't oppose more testing. But Cook also wants his case moved out of Smith County, where his attorneys said he can't get a fair hearing.
Judge John Ovard, a regional administrative judge from Dallas, granted DNA testing but denied Cook's request for a transfer in a hearing last month. Cook's attorneys filed a motion Monday asking Ovard to reconsider his decision. In that motion, the attorneys said they were told by prosecutors that former Smith County District Attorney A.D. Clark had kept the knife and a slide of Cook's hair, possibly as "souvenirs," for about a decade after Cook's plea.
Clark denied the allegations in an interview Tuesday, calling them "a complete falsehood in every respect." And Mike West, the Smith County prosecutor who allegedly told Cook's attorneys about the knife, said Tuesday that he had been misheard in a phone conversation.
West told The Associated Press that he had identified Eddie Clark, a Tyler police sergeant, as the person who kept the knife. Eddie Clark told prosecutors in an affidavit that he took the knife and the slide of hair with him from an evidence room several years ago when the rest of the material in Cook's case was going to be destroyed - standard procedure then in a case considered closed, West said.
"A.D. Clark had nothing to do with that," West said. "They've just totally misrepresented that in the motion."
West declined to release Eddie Clark's affidavit and said it was unlikely Clark could face any criminal charges for keeping the knife. Eddie Clark did not have a listed phone number.
Marc McPeak, one of Cook's attorneys, said it was clear to him that there were "serious questions" about who actually had the knife.
"It is impossible for anyone to claim that we were not talking about A.D. Clark on that phone call," McPeak said.
Cook was tried three times for Edwards' slaying and nearly a fourth before he agreed to the plea deal. A no-contest plea is not an admission of guilt but is treated like one for purposes of sentencing.
Cook's first conviction, a year after Edwards' death, was vacated by the U.S. Supreme Court. A second trial ended with a hung jury. Cook was convicted during his third trial in 1994, but the Texas Court of Criminal Appeals overturned the conviction because prosecutors read the testimony of a witness at the first trial who had died and could not be questioned. The appeals court said prosecutors had engaged in "willful misconduct" to convict Cook.
Weeks after Cook pleaded no contest, prosecutors said semen found on Edwards' underwear matched her boyfriend at the time. A Smith County grand jury closed its inquiry into the slaying soon after without charging anyone else.
Jack Skeen, the Smith County district attorney during Cook's third trial, is now a judge and has recused himself from Cook's case. But McPeak said he questioned whether Cook could get a fair hearing before any Smith County judge who might have to rule against local prosecutors.
"We view the fight to get Kerry a fair and impartial hearing, which is one thing he's never had, as crucial," McPeak said.
A list of available physical evidence included in Cook's attorneys' motion includes the knife and hair samples taken from Edwards and the crime scene. According to the list, Edwards' underwear and almost 20 other items of evidence have been destroyed.
It's unclear when Ovard will rule on the motion.
If Cook is formally exonerated, he could apply for more than $1.5 million in state compensation for the wrongfully imprisoned. Texas pays former inmates $80,000 for each year they were wrongfully locked up.
Updated Tuesday, May 1, 2012 at 3:48 p.m. CDT