'Let Yankees adopt such low callings ...'

Thanks to readers who had kind things to say, in the comments and via email, about my father's recent award. My brother has written about the ceremony, and I put up an item on my personal blog, Huevos Rancheros, ruminating on some of the family history discussed at the event. See "Let Yankees adopt such low callings: Reflections on the making of a southern lawyer."

Kerry Max Cook: 'Rogue' DAs don't deserve 'Prosecutor of the Year' honors

Kerry Max Cook, who is seeking post-conviction DNA testing to formally, finally exonerate him of a 1978 murder for which he was sent to death row three separate times, asked Grits to post this brief essay:

“ …It shall be the primary duty of all prosecuting attorneys, including any special prosecutors, not to convict, but to see that justice is done.  They shall not suppress facts or secrete witnesses capable of establishing the innocence of the accused.” (Texas Code of Criminal Procedure, Article 2.01)

There is definitely something broken - - and broken badly - - when the Texas County and District Attorney Association section of the State Bar of Texas awards and sanctions rogue prosecutors by unabashedly nominating them "Prosecutors of the Year."

My name is Kerry Max Cook. I am the author of a memoir called CHASING JUSTICE:  My story of freeing myself after two decades on death row for a crime I didn’t commit. [Ed note: See a review.]

What do Williamson County’s Ken Anderson and Smith County’s Jack Skeen share in common? Both were awarded "Prosecutor of the Year" by the County and District Attorneys section of the Texas State Bar.  And both were later appointed to District Judgeships by Gov. Rick Perry.

When a Tyler Judge in Smith County moved my case to Williamson County in 1992 for the first of what would become a series of retrials in the ‘90’s, then-District Attorney Jack Skeen sent me back to death row a second time. In fact, of all the things you can say Jack Skeen and Ken Anderson have in common, the one thing they don't is that Jack Skeen is not facing a Court of Inquiry and Ken Anderson is.

If anyone really sat down and took the time to wade through all the documented Jack Skeen and David Dobbs misconduct in my case, I think you would be shocked at how bad it really was. It would make the machinations of John Bradley look like Cinderella.  But that won't happen. You see, in Texas we have what I like to call Sak's Fifth Avenue justice for the Ken Andersons and Jack Skeens, and Wal-Mart justice for the Michael Mortons and Kerry Cooks.

Take my case for example. Here you have one of our largest newspapers in Texas, the Dallas Morning News, from 1980 until 1992 writing an award-winning series of investigative stories on my persecution that began with "Inmate was Railroaded, Testimony in Cook case called mostly false," "Convicted Man Called Innocent," "Key Evidence in Cook Case Suppressed," "Wrong Man on Death row," "Psychologist Views on Inmate Disputed," "Conclusions Wrong, Experts Say," "Police Didn't Pursue Leads in '77 Killing: Tyler Inquiry called Sloppy," and many more. These headlines were published across the state of Texas.

The man responsible  who caused those torrid headlines to be written was 1977-78 Smith County district attorney A.D. Clark, III.

Fourteen years later, Jack Skeen (A.D. Clark, III’s first-cousin) used the exact same "fraudulent” case A.D. Clark, III first built to convict me and then pushed it until he got a second conviction and death sentence at a third trial in 1994 with a Williamson County jury.

These Dallas Morning News investigative headlines had already splashed across Texas long before Jack Skeen received his “Prosecutor of the Year” award in 1997. In addition, by this time, Jack Skeen had already sent me back to death row once more and was on his way to do it again in a fourth trial after the conviction he obtained in my third trial with the use of the very same "fraudulent evidence” (See Tex. Ct. Crim. Apps. Nov. 6^th. 1996 Opinion). The County and District Attorney's Association knew all of this when they nominated Jack Skeen “Prosecutor of the Year” in 1997.

Maybe  one day the spirit of the words found in Article 2.01 of the Texas Code of Criminal Procedure can have meaning in Texas. Today, they don't. After what I have gone through in Smith County, I'm not sure they ever did.

RELATED: See Cook's motion to recuse and disqualify (pdf) Judge Jack Skeen in future proceedings in his case. Here's a good summary from Texas Monthly's Michael Hall on Cook's efforts to seek exoneration, and recent commentary from former Dallas News reporter David Hanners, mentioned above, who believes Cook is actually innocent.. Finally, here's an oldie but a goodie, this Houston Chronicle story from 2000 alleging prosecutorial misconduct in Smith County, using Cook's case as a prime example. (Then Smith County DA Jack Skeen sued the paper for libel over the story and lost.) Also, in addition to Judges Anderson and Skeen, it's worth mentioning that Williamson County DA John Bradley is also a past "Prosecutor of the Year" recipient.

Piling on the Tyler Morning Telegraph over cretinous murder-case coverage

Having mentioned the other day that Kerry Max Cook is seeking post-conviction DNA testing he hopes will formally exonerate him, and that local prosecutors were blasting him for it in the press, Grits wanted to point out some keen commentary by former Dallas Morning News reporter David Hanners, the journalist who first uncovered problems with Cook's conviction. Texas Monthly's Michael Hall wrote a notable blog post titled "What the 'Tyler Morning Telegraph' failed to tell you about Kerry Max Cook," and Hanners replied with this remarkable comment (edited only to break it into more readable paragraphs).

As the reporter for The Dallas Morning News whose stories initially raised doubts about Mr. Cook’s guilt, I believe I have a few observations I can offer to the discussion. The first would be that when it comes to Mr. Cook’s saga — and there’s no other word for it — the Tyler Morning Telegraph has never acquitted itself well. I’m usually hesitant to disparage another journalist or publication, but the Tyler paper’s history of coverage in this case has been a sad entry in the annals of objective and fair journalism. The paper has, time after time, taken the word of local police and prosecutors as gospel in Mr. Cook’s case and has done little, if any, real journalism. And, as the record reflects time after time, the word of police and prosecutors in this case has not been worth much.

I am probably one of the few people who has taken an objective look at Mr. Cook’s case. I wasn’t out to convict him and I wasn’t out to set him free. When I began looking into his case, it was to try and get an answer to a very simple question: Why did it take the Texas Court of Criminal Appeals nearly eight years to rule in his case? (As I would later find out, it was because the court basically lost the file.) Whether he was guilty or innocent really wasn’t an issue to me. But as I sat in the basement of the Supreme Court Building reading his trial transcript and looking through the exhibits, it became increasingly evident to me that, at the very least, Mr. Cook had not received a fair trial and, at may well have been innocent. The record (and the Texas Court of Criminal Appeals, eventually) has proven the former, and I am firmly convinced of the latter. I just don’t believe he killed Linda Jo Edwards.

In discussing this case with others, I have often described it as Murphy’s Law personified. Everything that could go wrong, did. The initial police investigation was hopelessly incompetent and relied on pseudo-science that was bad even for 1976. The police just didn’t do what a basic police investigation would have or could have done. (To underscore that fact — and this is directed at “Kelly”[another TM commenter] — Ms. Edwards had indeed been married and divorced. I have the records and I’ve spoken to her ex-husband. At the time of the murder, he was in the military out on the east coast, and detectives made the trip out to interview him. In a bit of irony, the detectives couldn’t be bothered to head out to the university to interview Mr. Mayfield or Ms. Edwards’ co-workers. When those co-workers complained to the police about not being talked to, the detectives went out to the school and basically waited for people to come to them — in full view of Mr. Mayfield.)

As another example of the utter ineptitude of the police investigation, consider the “missing” sock. As those conversant with the case know, police said they found only one sock at the scene, and so the prosecution turned that “theft” into one of the elements making it a capital murder case and the description they offered at Mr. Cook’s trial was quite graphic: After killing Ms. Edwards, the killer allegedly cut out body parts and stuffed them in the sock and took them as “trophies” of his kill. Imagine if you’re a member of the jury and you hear that and it is never refuted by the defense. Well, no body parts were ever taken, and when the jurors in the first re-trial had the evidence back in the jury room, they opened the evidence bag containing Ms. Edwards’ jeans, pulled out out the pants and held them up. Out dropped the “missing” sock. The cops were too incompetent to even find a sock in a pant leg. That type of conduct permeates the police investigation, so it is legitimate to question how anyone can have any faith in it. Still, the “he-took-body-parts-in-a-sock” bit remains part of the accepted mythology surrounding this case.

I’ve covered many murder cases over the years and realize that often they come down to circumstantial evidence. But even the circumstantial evidence in this case had to be stretched and in some cases fabricated to win a conviction. And Mr. Cook’s initial defense team did little to nothing in the way of investigation, or at least the type of investigation you’d like to see in a capital murder case.

Over the years, I have developed my own theory and belief into who killed Ms. Edwards, and it is a theory that fits the available evidence (direct and circumstantial) and is not inconsistent with those factors. I’ll not share that theory here, but suffice to say that it doesn’t involve Mr. Cook. Not to put too fine a point on it — and this is something I’ve spoken to him about, so he knows what I’m about to say — but Mr. Cook was not a good enough criminal or a lucky enough criminal to have committed a crime of this fury and magnitude and NOT leave a ton of evidence. He was young, immature and just didn’t think that far ahead. As “iffy” as fingerprints can be, he could not have committed this crime and not left bloody fingerprints everywhere in that apartment.

I also wish to speak to the DNA evidence and the way the prosecution has handled it. I clearly remember Mr. Dobbs telling me, prior to the testing, that they were excited about the prospects of a test because the semen sample “could only have been left by the killer.” Those were his exact words to me and I remember him saying it as if it were yesterday. So then the sample is tested and, lo and behold, it belongs to someone other than Mr. Cook. Suddenly, the prosecution’s story changes. So now the prosecution says, “Well, of course it was somebody else. But Mr. Cook is still the killer.” That last point is emblematic of how the police and prosecution have behaved over the lifetime of this case. They have wanted to have it both ways. When they claimed the evidence said one thing, they claimed it pointed to Mr. Cook’s guilt, but when it was demonstrated or proven that the evidence said the exact opposite of what they claimed, they said it still proved Mr. Cook’s guilt.

Absent confessions from the guilty parties, I doubt we’ll ever know for sure what happened to Ms. Edwards. The investigation was so screwed up that it can’t be trusted and there’s no way to go back in time and fix that. You don’t get a do-over when it comes to collecting evidence from the scene of a 1976 crime. Mr. Cook deserves more than what the system has given him. For that matter, Ms. Edwards deserves more than what the system has given her. She, like Mr. Cook and justice itself, deserves the truth, and we do them all a disservice by perpetuating the lies that led to this abhorrent conviction.

Well-said; you can see how Mr. Hanners had the writing chops to win a Pulitzer. He and Michael Hall couldn't be more right about the Tyler Morning Telegraph, and this case isn't the only time the paper has demonstrated such shortcomings.

BTW, among attorneys doing innocence work, there's a phrase for the situation where prosecutors insist only the rapist and/or killer could have left the DNA, then change their theory of the case after exculpatory results come back vindicating the person they've accused, as happened in Mr. Cook's case: They're basically alleging there was an "unindicted co-ejaculator." Usually once you reach that point, the defense has already won the substantive debate and the prosecution just hasn't realized it yet, or won't admit it. But you'd expect the local newspaper to be able to figure it out.

Kerry Max Cook seeks DNA testing, formal exoneration

Though I was 12 years old when Kerry Max Cook was convicted of capital murder for the first time in my home town of Tyler, I have no recollection of the original events or trial. As an adult working in the innocence movement these last few years, however, I know his case as almost iconic, tainted by flawed forensics, tunnel vision and extreme prosecutorial misconduct. After his third trial and death penalty sentence, the Court of Criminal Appeals overturned his conviction declaring that, "“Prosecutorial and police misconduct has tainted this entire matter from the outset.”

Now, more than a decade after his release from Texas death row, Cook has filed a Chapter 64 postconviction DNA testing motion "to start the ball rolling to get Cook eventually declared actually innocent," reports Michael Hall of Texas Monthly who provides an excellent, extended analysis of the case in a TM blog post.

Bizarrely, prosecutors from my home town say they're puzzled why Cook would seek formal exoneration so many years after he was sprung from death row. Just for starters, I'd say it's because Jack Skeen and David Dobbs smeared him six ways from Sunday over the course of two decades while ignoring the man who DNA evidence and an investigation by the indefatigable Centurion Ministries say is likely the real killer. More immediately, Texas recently increased compensation for men exactly in Cook's position who were victimized by false convictions. And during the 2011 session, the Texas Legislature amended the post-conviction DNA testing statute to eliminate most grounds for prosecutors to object to testing. So it makes perfect sense to me why this is happening now. Indeed, if the Tyler Telegraph or Smith County prosecutors wonder why Cook is seeking exoneration, they could have just asked him. Hall did, and his post concludes with Cook's reasoning:

Cook’s case is a deeply tragic one. He was one of the first of the modern wave of men to be freed after years of wrongful imprisonment. And yet Cook never experienced a profound public vindication. He never got to raise his arms high as he was cheered leaving the courthouse—like Morton recently did. He doesn’t get millions of dollars in compensation from the state for those wasted years—like the others do. He doesn’t have a brotherhood of fellow exonerees—like the men in Dallas have. He isn’t even, technically, an exoneree.

“Every day I fight against the darkest depression imaginable,” he says, “because of what Smith County did to me and continued to do to me for 35 years. First there was the horror of my prison experience as an innocent man, then my fate when I was freed, which in some ways was almost as bad. I developed severe PTSD. I was forced to move five times by people who found out about my past. Kids won’t play with my son because they find out he’s the son of a man who was on death row. My wife and I–we have no insurance. I can’t get an apartment, I can’t get a real job. It’s been unbelievable. Nobody knows what it’s like. It’s like I’m behind another set of bars. I’m not free.

“I want the official exoneration. I want what Ernest Willis and Tim Cole and Michael Morton got. I deserve it. It’s my turn.”

This case represents one of the darkest moments in the history of my hometown's criminal justice system, though the saddest part is that, as bad as Cook's case was, there's still substantial competition for that "darkest" label. I know Cook sometimes visits this blog, so let me be the first here to say "good luck"; if anybody deserves ultimate vindication after traumas worthy of Job, it's Kerry Max Cook.

MORE: From Michael Hall at TM Daily Post, see "What the Tyler Morning Telegraph failed to tell you about Kerry Max Cook." Though lets face it, it would be more than a full-time job trying to plug in all the gaps that the Telegraph "failed to tell" its readers, though I understand wanting to make an exception in this instance.