There is a new chapter in the legal battle involving a former Smith County man trying to clear his name in a 35-year-old murder case.
In a motion filed Monday in Smith County, attorneys for Kerry Max Cook asked for a Dallas administrative judge to reconsider his decision to allow Judge Christi Kennedy to preside over Cook’s case if it is re-opened.
Marc McPeak and Gary Udashen also assert in the same motion that former Smith County District Attorney A.D. Clark, who originally prosecuted the Cook case in 1978, “has inexplicably taken key evidence, including the murder weapon — a blood-soaked knife — and a sample of Mr. Cook’s hair and has kept this evidence in his possession for approximately the last decade.”
Clark denies the allegations in the motion and released a statement on Tuesday. “I’m disgusted and upset about these false statements that (Marc) McPeak has said about me. Mr. McPeak does not know me. I am looking into avenues for responding in the appropriate manner to Mr. McPeak about these phony allegations,” Clark said.
Mike West, the Smith County prosecutor who allegedly told Cook’s attorneys about the knife, said he was misheard in a phone conversation, The Associated Press reported Tuesday.
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.”
A list of available physical evidence included in Cook’s attorneys’ motion includes the knife and hair samples taken from victim Linda Joe Edwards and the crime scene, according to the AP. According to the list, Ms. Edwards’ underwear and almost 20 other items of evidence have been destroyed.
Smith County District Attorney Matt Bingham declined to comment, saying he was not involved in any of the conversations.
Judge John Ovard, presiding judge of the First Administrative Judicial Region, ruled April 9 in the 114th Smith County District Court that Judge Kennedy did not have to recuse herself in the Cook case after hearing arguments from Cook’s attorneys, McPeak and Udashen, along with prosecutors.
McPeak and Udashen argued that Judge Kennedy could not be fair or impartial on any rulings she might make in the Cook case because some of her colleagues on the bench and their families were involved in Cook’s prosecution in his previous trials.
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 1998, as Smith County was moving forward with a fourth trial, Skeen offered Cook a deal that would convict the man of murder but would not require Cook to admit he killed the woman.
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, McPeak and 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.
Cook’s attorneys filed another motion on Monday with the District Clerk’s Office alleging that Bingham made “serious, substantial and egregious factual misrepresentations ... to the Court ... throughout the April 9 hearing on Mr. Cook’s recusal motion.” They also are requesting that Ovard reconsider his ruling that Judge Kennedy does not have to recuse herself from hearing his case.
In their motion, McPeak and Udashen stated Bingham alleged “a confession that never occurred and a fingerprint that does not exist.”
Bingham said in the April 9 court hearing that Cook and the male witness with whom Cook had an encounter on the night of the murder talked about the killing of Ms. Edwards in June 1977.
The motion also states that “Mr. Cook’s fingerprints were not found on the inside of the sliding glass door to Ms. Edwards’ apartment.”
But Bingham stated in court that Cook’s fingerprints were on the inside of the sliding glass door.
If Cook is formally exonerated, he could apply for more than $1.5 million in state compensation for being wrongfully imprisoned. Texas pays former inmates $80,000 for each year they were wrongfully locked up.