[Deathpenalty] death penalty news----TEXAS

[Rick Halperin]

Sept. 15



TEXAS:

Years after being freed from death row, East Texas man fights to clear name

Nearly 40 years after Linda Jo Edwards was murdered and mutilated in her Tyler 
apartment, the man convicted of the crime - and almost executed for it - wants 
to be exonerated, based on new DNA tests.

Lawyers for Kerry Max Cook, who Smith County prosecutors contend killed Edwards 
in a perverse rage in June 1977, filed documents Monday urging the court to 
declare the former death row inmate innocent. They argue that 6 rounds of 
extensive DNA testing from 1999 through 2015 failed to identify any evidence 
that Cook was at the scene of the crime.

Instead, the tests confirmed the presence of semen from Edwards' former lover, 
a longtime suspect in the case and a dean at the local university whose 
extramarital affair with the young woman had ended badly, the lawyers say.

In a separate motion filed Monday, the lawyers also asked Smith County state 
district Judge Christi Kennedy to recuse herself from overseeing the case. They 
allege that Kennedy is too closely tied to prosecutors the courts have said 
engaged in misconduct to win Cook's conviction, including suppressing evidence 
and securing false testimony.

The saga has been the most high-profile case in small Smith County's history. 
It's resulted in 3 lengthy trials, books and movies, and worldwide attention.

Cook and his lawyers, including Barry Scheck from the New York-based Innocence 
Project, declined to comment, referring to the legal documents filed in court.

Mike West, an assistant Smith County district attorney, said he hadn't had time 
Monday afternoon to review the latest filings in the decades-old case.

"We're going to look at it and give it a serious look," West said.

Cook was convicted in 1978 of stabbing and beating Edwards to death in a sexual 
frenzy, and he was sentenced to die. He maintained that he was innocent, and 
the guilty verdict was overturned. A 2nd trial produced a mistrial, and a 3rd 
trial sent Cook back to death row.

An appeals court threw out that verdict, too, finding prosecutors had engaged 
in "pervasive" and "egregious" misconduct. In 1999, just days before what would 
have been Cook's 4th trial, Smith County prosecutors offered him a no-contest 
plea deal that allowed him to be released from prison. Cook didn't admit the 
crime but remained guilty in the eyes of the law.

Cook has been out of prison since then. He's married and has a young son, and 
they've traveled the world to tell his story. But the conviction hangs over 
Cook, preventing him from voting and making it difficult to find work. He's 
hoping the new evidence will finally clear his name.

Before Cook accepted the 1999 plea deal, prosecutors had sought DNA testing on 
semen found in Edwards' underwear. Cook took the deal before the results came 
back, but the report eventually showed that the semen belonged to James 
Mayfield, Edwards' boss and former lover.

Mayfield has never been charged in relation to the crime, and prosecutors have 
said the DNA testing doesn't mean Cook is innocent. Efforts to reach Mayfield 
and his former lawyer for this report were unsuccessful. In the past, he has 
denied any role in the crime.

In 2012, Cook asked for a new round of more advanced DNA testing on the 
underwear and other evidence at the crime scene, including the murder weapon 
and a hair found on Edwards' body.

Lawyers discovered, though, that an investigator in the case had taken the 
knife used in the murder home for "field testing." They also learned that the 
state destroyed the hair just after lawmakers, in 2001, approved a statute that 
allowed inmates access to DNA evidence in their case files that might help 
prove their innocence.

The knife, the underwear and dozens of other items collected from the crime 
scene were tested. None of the testing matched Cook???s DNA, according to 
lawyers. The only match, they said, was an even more conclusive finding that 
the skin and sperm cells in Edwards' panties belonged to Mayfield.

"The DNA profile shared by Mayfield and the male donor on the samples tested by 
Cellmark, respectively, are shared by just 1 in 3.112 trillion and 1 in 10.07 
billion unrelated Caucasians - i.e., fewer than 1 such individual out of the 
entire current population of the Earth," the lawyers wrote.

In the filings, Cook's lawyers allege that Smith County prosecutors failed to 
fully investigate Mayfield despite knowing that he had a relationship with 
Edwards and that he matched a witness description of the perpetrator at the 
scene and despite reports from friends who said the man had a violent temper.

Mayfield testified at trial that he was with his family the night of the 
murder, and he said he hadn't had sex with Edwards for weeks before she was 
killed.

With the newly obtained evidence, Cook's lawyers argue, a jury would never 
convict him of Edwards' murder, and they want the court to declare him 
innocent.

But to give Cook a fair shot at finally vindicating his name, the lawyers say a 
judge from outside of small, interconnected Smith County must oversee the 
proceedings.

Kennedy has close relationships with prosecutors and others who helped secure 
Cook's conviction, they argue. While she did not work on the case herself 
before she took the bench, Kennedy's clients included Smith County law 
enforcement officers involved in Cook's case, and her late husband worked in 
the district attorney's office during 2 of Cook's trials.

Additionally, they contend, she's close to other judges and lawyers who have 
been involved in the long-running case.

Kennedy did not respond to a request for comment Monday. She has 3 days to 
decide whether to recuse herself in the case.

Timeline: The Kerry Max Cook case

June 1977: Linda Jo Edwards is mutilated and murdered in her Tyler apartment.

August 1977: Kerry Max Cook is arrested and charged with the crime. He was 
staying with a friend in Edwards' apartment complex.

July 1978: Cook's 1st trial takes place in Tyler. He's convicted of capital 
murder and sentenced to death.

December 1987: The Texas Court of Criminal Appeals upholds the conviction and 
sentence.

June 1988: The U.S. Supreme Court orders the Texas Court of Criminal Appeals to 
review the case, just 11 days before Cook's scheduled execution.

January 1990: The Texas Court of Criminal Appeals upholds the conviction.

September 1991: The Texas Court of Criminal Appeals reverses itself, vacating 
Cook's conviction and ordering a new trial.

December 1992: Cook is tried again, this time in Williamson County. A mistrial 
is declared after the jury comes back deadlocked.

January-March 1994: In a 3rd trial, Cook is again found guilty and sentenced to 
death.

November 1996: The Texas Court of Criminal Appeals overturns the conviction and 
death sentence, ruling that due process had been violated because 
"prosecutorial and police misconduct has tainted this entire matter from the 
outset."

October 1997: The Supreme Court refuses to overturn the appeals court ruling. 
Smith County prosecutors seek a 4th trial.

November 1997: Cook is released on bond awaiting another trial.

February 1999: Shortly before the trial is set to begin in Bastrop, Cook pleads 
no contest with the promise of avoiding any more prison time. He is released 
from prison. Cook maintains his innocence.

April 1999: The Texs Department of Public Safety issues a DNA testing report 
showing a partial DNA match to James Mayfield, who is described in court 
documents as Edwards' "married, jealous ex-lover." The report finds no trace of 
Cook's DNA.

April 2001: The Legislature enacts a measure to allow convicts to test DNA in 
the state's possession in efforts to exonerate themselves. The statute also 
bars the state from altering or destroying evidence that could be tested for 
DNA.

December 2001: Smith County authorizes the destruction of some evidence in 
Cook's case.

February 2012: Cook files a motion for post-conviction DNA testing, seeking 
exoneration.

April 2013-March 2015: 5 separate DNA reports yield no DNA that matches Cook's. 
The tests further confirm the presence of DNA from Mayfield, lawyers say.

[source: Dallas Morning News research]

(source: Dallas Morning News)

************************

4 Decades, 3 Trials, 2 Death Sentences, 1 Exoneree. Almost.


38 years after Kerry Max Cook was convicted of murder, he continues to seek 
exoneration. And now he might finally have a chance to convince the courts of 
his innocence.

The long, strange ordeal of Kerry Max Cook - perhaps the most bizarre series of 
capital murder proceedings in Texas history - just got longer. And stranger. 
Cook, convicted of the 1977 rape, mutilation, and murder of Linda Jo Edwards, 
spent 20 years on death row. While there, he was stabbed and repeatedly raped. 
The abuses led him to twice attempt suicide. He always maintained his 
innocence, and though his death sentences were overturned - twice - and the 
people who prosecuted him were reprimanded by a high court for extensive 
malfeasance and he was eventually freed from death row in 1997, he has never 
been exonerated. That's because back in 1999, on the eve of an unprecedented 
fourth capital murder trial, he took a "no contest" plea. So even as he became 
a celebrity - writing a book about his experience, becoming a subject of a 
popular play and movie called The Exonerated, giving anti-death penalty 
speeches and hanging out with anti-death penalty celebrities - Cook is still 
considered a convicted killer. Especially in Tyler, Texas, where the murder 
took place.

And so today he ventured there again, at least legally, accompanied by lawyers 
from the Innocence Project and the Innocence Project of Texas, who filed two 
motions at the Smith County courthouse: a writ of habeas corpus to get his 
murder conviction thrown out and a motion to recuse the judge who would 
actually rule on the writ.

To win on a habeas writ, a person must have new evidence contradicting his 
verdict. Cook has that: DNA tests on 15 crime scene items, none of which show 
his blood or semen anywhere on or near the victim. In fact, these tests 
actually show a profile of another man: the victim's lover, a married man with 
whom she'd been having a tempestuous affair. While this isn't mind-blowing news 
- DNA tests from 1999 also excluded Cook and included the lover - this is the 
1st time the test results have actually gone before a court. And they could 
eventually lead to a new trial for Cook.

Cook's ordeal began with the bloody rape and murder of Edwards, a young 
secretary who lived in the same Tyler apartment complex he did. Over the next 
16 years, prosecutors took Cook to court 3 times, even though they didn't have 
much evidence: fingerprints on a patio door, a jailhouse informant who said 
that Cook told him he killed her, the recollections of a gay man who said that 
on the night of the murder he and Mr. Cook had had sex and watched a movie that 
involved a cat torture scene. Prosecutors came up with the bizarre but 
effective theory that Cook, whom they said was a latent homosexual, was aroused 
by the torture scene and then left the apartment and raped and killed Edwards, 
cutting off body parts (including the inside wall of her vagina), which he then 
stuffed in a stocking of hers that had gone missing.

But all of the evidence used against Cook proved to be problematic or downright 
fraudulent. It turned out that three different witnesses had testified to a 
grand jury that Cook told them he had met Edwards 3 days before the murder and 
had gone to her apartment, where they made out on the couch, which explained 
the fingerprints (prosecutors didn't tell the defense about the witnesses). The 
jailhouse snitch confessed that he lied because he had been offered a reduced 
sentence for a murder conviction. The man who testified he'd had sex with Cook 
had previously told a grand jury there was no sex - and that Mr. Cook had 
ignored the movie in the first place. And the missing stocking that was 
supposed to be full of souvenir body parts was found in 1992 rolled up in a 
pants leg of Edwards's jeans by a juror who'd asked to look closely at the 
trial exhibits - 15 years after the murder.

Cook's 1st conviction in 1978 was overturned on a technicality. The second 
trial, in 1992, ended in a mistrial. The 3rd 2 years later led to a second 
guilty verdict and death sentence, but in 1996 the Court of Criminal Appeals 
overturned it too, thundering that "prosecutorial and police misconduct has 
tainted this entire matter from the outset." A concurring opinion said, "The 
state's misconduct in this case does not consist of an isolated incident or the 
doing of a police officer, but consists of the deliberate misconduct by members 
of the bar, representing the state, over a 14-year period - from the initial 
discovery proceedings in 1977, through the first trial in 1978, and continuing 
with the concealment of the misconduct until 1992."

It looked like Cook was finally on his way to exoneration, and he was released 
on bond in 1997. But Smith County wasn't finished and set about trying him for 
a record 4th time. As the February 1999 trial date approached, prosecutors made 
him an offer: plead guilty in exchange for 20 years (which he had already 
served), and the charges would be dropped. Cook refused. He was innocent, he 
said.

Then, on February 4, a DPS analyst, examining Edwards's underwear, found a 
previously unseen semen stain; the state moved to run modern DNA testing on the 
stain as well as a hair found on her buttock. According to reporter David 
Hanners of the Dallas Morning News, Assistant DA David Dobbs told him that the 
semen "could only have been left by the killer." On the morning of jury 
selection, the DA shocked Cook with a final offer: plead no-contest and the 
case would be dismissed. Such a plea had never been allowed in a Texas death 
penalty case before, but with it, Cook could maintain his innocence (even 
though he wouldn't be legally exonerated), while the state would keep its 
conviction. Cook's advisors - suspicious that prosecutors were panicking 
because they knew his DNA would not be found in the sample - urged him to go to 
trial. Cook, though, terrified of going before a Smith County jury again and 
returning to death row, took the plea.

He should have waited. The DNA results came back 2 months later, and, as Cook 
had always insisted, it wasn't him. In fact, the semen came from James 
Mayfield, a former college dean with whom Edwards (a secretary in his division) 
had been having a stormy affair. 3 weeks before she was murdered, in fact, she 
had tried to kill herself, and when news of the attempt became public, both 
were fired from their jobs. Not only did Mayfield and Edwards see each other 
several times in her final days, according to a friend of hers who talked with 
her 5 hours before she was murdered, she had informed Mayfield she was going to 
date other men - and he did not take the news well. On that last night, her 
roommate saw a man standing in the doorway of her bedroom; she told police and 
others that it was Mayfield (though more than a year later she would change her 
mind and testify that it was Cook).

Cook was ecstatic with the results, but the Smith County DA's office now said 
that they just confirmed what everyone knew - Edwards and Mayfield had a sexual 
relationship. Though Dobbs had told Hanners the DNA was essentially the smoking 
gun, now he told another reporter, "It's irrelevant. Cook has been convicted of 
the murder." And indeed he had.

Cook tried to move on with his life - and had a terrible time of it. He was 
free but still had a murder conviction on his record. "I couldn't get a job, 
couldn't sign a lease," he said later. "We've had to move five times because 
people would find out about me. One woman threatened to put up posters in the 
neighborhood saying 'Convicted murderer lives here.'" He couldn't vote, own a 
gun, or run for office. In 2009 Cook befriended Marc McPeak, a civil lawyer who 
offered to help him. 3 years later, McPeak, working with Dallas lawyer and 
Innocence Project of Texas member Gary Udashen, filed for DNA testing on other 
crime scene evidence - including the bloody knife. The lawyers also moved to 
recuse the judge who would rule on the testing. That judge was Jack Skeen, who 
had prosecuted Cook twice. Judge John Ovard okayed the testing and the recusal, 
sending all further matters to be decided by fellow Smith County district judge 
Christi Kennedy.

Next Udashen contacted the Innocence Project, which has used DNA testing to 
exonerate more than 300 people nationwide. 15 items from the crime scene, 
including Edwards's stained bra, her jeans, cigarette butts, and blood on the 
knife, were sent to Cellmark Forensics lab near Dallas. They were tested over 
the next 2 1/2 years; the final results came in March. The results corroborated 
the 1999 findings: None of Cook's DNA was found on anything at the bloody crime 
scene. More elaborate DNA testing on the underwear, though, got an even 
stronger profile of Mayfield.

The DNA evidence is the biggest part of the writ of habeas corpus, and the 
lawyers use it to make the claim that Cook is actually innocent. To prevail in 
such a case, someone like Cook has to show that his innocence has been 
unquestionably established with newly discovered evidence, and the lawyers are 
banking on the fact that none of Cook's DNA evidence has ever been brought into 
a court, not even the 1999 results. Cook's lawyers are also using Texas's "junk 
science writ," passed in 2013, which says that new forensic science can be used 
to successfully attack a conviction; all a petitioner has to do to get a new 
trial is show that with the new scientific evidence, it's more likely than not 
that a jury wouldn't have convicted him. If Cook's trial were held today, with 
the DNA results pointing to the victim's ex-lover, would he still be found 
guilty? Almost certainly not.

The Innocence Project also alleges that prosecutors knew when they made the "no 
contest" plea offer that Mayfield's DNA profile would show up in the semen, not 
Cook's - and urge an evidentiary hearing to look into the matter. And the 
lawyers attack law enforcement for destroying evidence, in particular the hair 
found on Edwards's buttock, which doubtless came from the killer. Prosecutors 
knew the hair wasn't from Cook or Edwards - an expert had already testified, 
back in 1978, that it couldn't have come from either person.

But in early 2002, 2 years after the results of the DNA testing pointed to 
Mayfield, Tyler police destroyed the hair. This wasn't just an unbelievably 
wrongheaded action, it was also against the law, violating Chapter 64, the law 
the legislature had passed in 2001 that allowed inmates to ask for 
post-conviction testing. It also forbade law enforcement from destroying any 
piece of biological evidence that was eligible for testing. When police 
destroyed that hair, they destroyed an important clue to the killer of Linda Jo 
Edwards.


Almost 4 decades into his ordeal, Cook, aided by the powerful, well-funded 
Innocence Project, has his best shot at vindication. But given (in the CCA's 
words), "the deliberate misconduct by members of the bar, representing the 
state, over a 14-year period," the one thing he says he hasn't had is an 
objective hearing of his claims.

And so his lawyers filed a 2nd motion, this one to take the case out of the 
court of Judge Christi Kennedy, 1 of 4 district judges in Smith County. Tyler 
is a small town, they say, with a close-knit legal community, and there's no 
way Kennedy can objectively adjudge a writ of habeas corpus dealing with the 
most controversial case in the history of Smith County - she's just too close 
to the major players. For example, one of Kennedy's fellow district judges, 
Carole Clark, is married to A.D. Clark, the 1st DA to prosecute Cook. Another 
fellow judge is Skeen, who, of course, prosecuted Cook in his 2nd and 3rd 
trials. Kennedy's late husband Richard was an ADA under Skeen during Cook's 2nd 
trial. The Texas Rules of Civil Procedure say, "A judge shall recuse himself in 
any proceeding in which: (a) his impartiality might reasonably be questioned; 
(b) he has a personal bias or prejudice concerning the subject matter or a 
party ..." Could Kennedy be fair in ruling on the possible innocence of a man 
whom her friends and peers tried for so long to execute?

There is precedent for judges stepping aside when their impartiality - or just 
the appearance of favoritism - might become an issue. In 2010, before Michael 
Morton's retrial in Williamson County, the judge set to hear the case, Billy 
Joe Stubblefield, recused himself when it became clear he was going to have to 
rule on charges of serious misconduct by former DA and current judge Ken 
Anderson, one of Stubblefield's peers on the Williamson County bench. 
Stubblefield never gave a reason for his recusal, but one can surmise that he 
thought the public's confidence in what was already a controversial trial would 
be higher if he didn't oversee it.

Kennedy has 3 days to decide whether to recuse herself or to stay on and hear 
the case. Either way, the issue will go to Mary Murphy, presiding judge of the 
1st Administrative Judicial Region in Dallas, which oversees Smith County. If 
Kennedy steps aside, Murphy will choose a replacement court and judge; if 
Kennedy refuses to recuse, Murphy will decide whether, in fact, she should or 
not. One way or another, Murphy will ultimately decide which judge - in which 
county - adjudicates the writ.

How much stranger could the case of Kerry Max Cook get? After 38 tortured 
years, everyone would like to see a fair, impartial, and totally normal end to 
it. But at this point, there's only 1 way for that to happen: put Cook's writ 
of habeas corpus - which contains compelling evidence that he is an innocent 
man - in front of fresh eyes, in a courthouse unsullied by the taint of bitter 
memories and years of deliberate misconduct.

(source: texasmonthly.com)

*****************

Man faces capital murder charge in connection to child's death


A 25-year-old man was charged with capital murder Monday following the death of 
his girlfriend's 2-year-old boy earlier this month.

Juan Canales Deltoro, of Sullivan city, appeared before Hidalgo County Justice 
of the Peace Marcos Ochoa inside county jail where he was charged with a 
capital felony and given a $1 million dollar bond.

Deltoro is suspected of causing the death of the unidentified child the night 
of Sept. 5 at a home he shared with the boy's 20-year-old mother in the 1900 
block of Huisache Street near Sullivan City, according to Sheriff Eddie Guerra.

Deltoro and the boy's mother arrived about 7 p.m. to La Joya Police department 
carrying the unresponsive child yelling for help. First responders tried to 
revive the boy at the station and inside an ambulance that rushed the boy to a 
local hospital where he was pronounced dead on arrival, Guerra said.

Deltoro was arrested Sept. 12, after autopsy results revealed the boy's death 
was a homicide. The autopsy also showed signs of previous physical abuse, 
Guerra said.

When police arrested Deltoro, he confessed to causing the boy's death while he 
was alone with the boy and the child's mother was at a store, according to 
investigators.

The charges in this case were upgraded from murder to capital murder because 
the child victim was under the age of 10, according to Texas state law. If 
convicted, Deltoro faces life in prison or the death penalty.

(source: The Monitor)

******************

Death penalty declines in popularity nationwide


The murder of Midland County sheriff's deputy Sgt. Mike Naylor and the 
subsequent guilty plea by Dan Higgins -- who shot and killed the sergeant -- 
fell into a growing nationwide trend when the Midland County district attorney, 
on behalf of Naylor's widow, settled for a life sentence.

As detailed in an analysis of the waning support for capital punishment in a 
recent USA Today article, the Higgins case is a leading example of how "the 
death penalty in America may be living on borrowed time."

Naylor's widow requested that the prosecution not seek the death penalty in 
order to avoid costly protracted litigation and personal and emotional strain, 
Midland District Attorney Teresa Clingman said in March. Opting for a 
punishment of life without parole rather than capital punishment also saved the 
county an estimated $3 million in litigation fees -- according to a previous 
Reporter-Telegram article -- a cost that can be onerous for small to 
small-county budgets.

"The emotional and financial toll of prosecuting a single capital case to its 
conclusion, along with the increased availability of life without parole and 
continuing court challenges to execution methods, have made the ultimate 
punishment more elusive than at any time since its reinstatement in 1976," 
according to the USA Today analysis. "Those trends may be squeezing the life 
out of the death penalty."

But that's not to say that locally, proponents of seeking the death penalty are 
still strong.

"I wanted him dead," Midland County Sheriff Gary Painter told a USA Today 
reporter.

But in a more measured measured response during a press conference announcing 
the district attorney's decision last spring, Painter agreed with Clingman's 
logic.

"I think saving the county money, saving the heartache for the families 
involved is the best solution for this particular case," he said through tears.

In 1999, 98 inmates were executed across the nation; last year that number 
dropped to 35, according to the analysis. And in Texas, the state with the 
strongest zeal for capital punishment, the trend is declining, too, from 48 
death sentences in 1999 to 11 last year.

(source: Midland Reporter-Telegram)