Administrative Judge John Ovard, of Dallas, today granted Cook’s request for DNA testing. But he denied Cook’s plea to move the case out of Smith County, where prosecutors who originally tried his case were found by the Texas Court of Criminal Appeals to have committed “egregious prosecutorial misconduct.”

Cook argued that the long and troubled history of his case in Smith County made it impossible for him to get a fair hearing there. (See original story below)

Smith County District Attorney Matt Bingham did not oppose the DNA testing request. But he argued in court filings that the judge assigned to hear Cook’s case now had nothing to do with his original trial or the misconduct the appeals court cited. “The thousands of Smith County convictions since 1999, including several capital cases, that have withstood repeated appellate and habeas attack stand in stark contrast to the defendant’s baseless allegations of widespread impartiality (sic).”

Original story

Kerry Max Cook’s three-decade-old case will once again take center stage in Smith County today as he begins a new fight to  clear his name of the 1977 murder of Linda Jo Edwards.

Cook, who was released from prison more than a decade ago after spending about 20 years on death row, was convicted at age 22.

“All I want is my innocence,” Cook said in a phone interview from his Dallas-area home on Thursday, his 56th birthday. “That’s all I want out of this.”

Cook is seeking to test more DNA — as much as investigators can find in the three-decades-old evidence file — to prove to the court that he is innocent and to have the murder charges officially dismissed. But, he said, he doesn’t stand a chance if he has to fight in Smith County, where the courts have said that prosecutors broke the rules to secure his conviction. Today, Cook will ask an administrative judge to move his case to another county. Smith County prosecutors, though, say that things have changed there since Cook’s trials, and that he can get a fair hearing.

Cook’s case is one of the most tortured sagas in Texas’ long history of unusual courtroom dramas. In 1978, he was convicted of murder after prosecutors convinced the jury that he bludgeoned and stabbed Edwards 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 him a plea deal in 1999 before what was to be his fourth trial, he agreed.

Though prosecutors who tried Cook have denied wrongdoing, the court found in 1996 that “prosecutorial and police misconduct has tainted this entire matter from the outset.”

Edwards lived in the same apartment complex as Cook at the time of her murder. According to court records, she had been involved in an extramarital affair with James Mayfield, who had also been her boss. Before Edwards’ death, he had left his wife to move in with her. When he returned to his wife, Edwards attempted suicide. That made their affair public and resulted in Mayfield being asked to resign from his job at what was then Texas Eastern University and is now the University of Texas at Tyler. On the night of the murder, Mayfield told authorities, he was with his wife and daughter.

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.

Prosecutors have disputed the findings of misconduct, and they proceeded with a fourth trial. Shortly before the trial was to begin, though, they offered Cook a plea deal. He could plead guilty, be sentenced to the time he had served and then be released. Cook refused to plead guilty, though, and instead entered a plea of no contest.

He avoided the risk of another trial, but Cook was still legally considered a murderer. Only after Cook signed the agreement with prosecutors did DNA testing reveal that Mayfield’s semen was on the victim’s panties. Mayfield 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.

“Given the history of this case, there is no chance that the resolution of Kerry’s case can have any legitimacy or appearance of impartiality if it remains in Smith County,” said Marc McPeak, a lawyer with Greenberg Traurig in Dallas, who is working pro bono on the case.

Former Smith County District Attorney Jack Skeen, now a state district judge in Tyler, did not return phone calls seeking comment. And his predecessor, A.D. Clark III, who presided over Cook’s original trial and now works in Tyler for the Texas attorney general’s office, declined to comment on the record. Both have maintained that Cook is guilty.

Michael West, an appellate lawyer in the Smith County district attorney’s office who has done research on the case but is not directly handling it, said Cook’s request for the recusal of every judge in the county, some of whom were in high school during Cook’s original trial, is “just ridiculous.”

“Everything about Smith County is different from that time,” West said.

West, was not involved in Cook’s previous trials, also questioned Cook’s motives for pursuing his innocence claims more than a decade after he was released from prison.

“To me, it’s suspicious,” he said. “It seems like if I was all fired up and gung ho about being innocent, I wouldn’t have waited so long.”

If he is exonerated, Cook could apply for compensation for the two decades he spent on death row. He could be eligible for more than $1.5 million in a lump sum payment and a monthly annuity equal to the same amount over the course of his life.

Cook said he doesn’t care about the money. He would waive the compensation if the county would simply declare his innocence.

“Between money and justice, I’ll take justice,” he said.

Money, though, is a major reason why Cook said it has taken so long for him to begin this phase of his legal battle. Getting and keeping a job and a home as a convicted murderer is no easy feat, so he has lived paycheck to paycheck.

Additionally, the DNA laws in Texas have evolved since Cook was released from prison in 1999. Texas adopted its law allowing for post-conviction DNA testing in 2001. It required defendants to meet strict requirements before testing was granted. Over the years, those have been eased.

And McPeak didn’t take Cook’s case until 2009. He has worked since then to compile evidence and testimony from a complex set of records spanning three decades, four trials and a host of lawyers. It took six months to get all of the public documents he requested from Smith County, McPeak said.

Cook, he said, already has enough evidence from the 1999 DNA results to prove his innocence. But because this could be his last chance to prove it in court, he wants to gather every piece of evidence that remains to determine who did kill Edwards.

“This is a big deal and it takes a long time, and it’s not an easy decision,” McPeak said.

Cook is married now and has a son named Kerry Justice, who is 11. But every day, he said, is a struggle for survival. He has been out of prison and away from the repeated rape and physical abuse on death row that pushed him to attempt to take his own life, but Cook said he is not truly free.

“I’m so tired; I’m so beaten up now,” he said. “Man, I struggle with suicidal tendencies.”

This fight, he said, could be his last chance to finally prove his innocence and remove the cloud of conviction from his life.

“I keep coming back like Lazarus from the dead,” he said. “I’m not going to quit because I was innocent.”

This article originally appeared in The Texas Tribune at http://trib.it/HnATeD.