Innocence Lost

Railroaded onto death row, Kerry Max Cook endures rapes, beatings, and suicide attempts while waiting for justice

McCloskey believed he could convince Dobbs that Mayfield was the killer, and he gave him a copy of his investigative report. Within two weeks, McCloskey says, Dobbs shared the report with Mayfield himself. "David Dobbs betrayed me," McCloskey claims. "He was just gathering ammunition to rebut what we had learned and prepare for trial."

Apparently McCloskey had misread how invested the prosecution was in keeping Cook on death row. To them, Cook wasn't just some anonymous inmate whose case was reversed on a technicality. He was a vicious celebrity criminal who had attacked the integrity of Smith County justice. With the help of a big-city newspaper, he had made the people of Tyler look foolish.

Centurion convinced Houston attorney Paul Nugent to represent Cook for free. Boston-born, Nugent possessed a New England reserve and a bearing not dissimilar to a Kennedy. After clerking for a federal judge in Galveston, he moved to Houston to join the firm of renowned criminal attorney Percy Foreman.

Nugent maintains that he has "never encountered a district attorney's office as dishonorable as Smith County's." In the late fall of '91, Nugent and Dobbs were sifting through a box of documents when Nugent noticed a thick memo written by Sgt. Doug Collard to a fingerprint certification board. A grievance had been filed against Collard by another examiner after the Morning News had questioned how the officer could date a latent fingerprint down to the hour. Collard responded that he knew there was no scientific validity to his opinion and that it was "a mistake" to express it. But district attorney Clark had pressured him to testify that way and the sergeant, now a captain, apparently lacked the will to resist. The whole episode sank to the level of flagrant prosecutorial misconduct.

Dobbs also gave Nugent grand jury testimony and witness statements -- exculpatory evidence that had been denied Cook's first attorneys. Four witnesses -- Hoehn, James Taylor, and Taylor's nephews, Randy and Rodney Dykes -- had testified before the grand jury that Cook had told them days before the murder that he had met Edwards at the swimming pool and she had given him the hickeys that they each saw on his neck. (James Taylor was unaware of Cook's claim that he had entered Edwards' apartment.) This ran counter to the state's theory in the '78 trial that this was a stranger-on-stranger murder. It was a theory the state would be loath to give up.

On March 4, 1992, Judge Joe Tunnell, who would preside over the case, ordered Cook back to the Smith County jail. Cook had decided to leave his radio and typewriter behind, hopeful that he would never see death row again. Those hopes were quickly dashed when David Dobbs greeted him in the jail.

Cook says he told Dobbs he didn't want to speak with him, terrified that he was just trying to get him to confess. "Dobbs said he was working with McCloskey," Cook recalls, "and was willing to listen to any evidence of my innocence." Cook became hysterical, telling Dobbs that his predecessor, A.D. Clark, had made him out to be a homosexual, and look where that got him. Cook then dropped his pants, he says, and showed Dobbs the tattoo etched into his buttocks.

Dobbs would tell a different story, claiming he warned Cook not to speak with him unless his attorney was present. Yet Dobbs knew that Cook was represented by counsel, and Judge Tunnell would later rebuke Dobbs for his "improper" and "misguided"..."breach of duty and protocol" by speaking to a defendant without his attorney being present.

In jail, Cook was allowed one phone call and contacted David Hanners. The Morning News would recount the jailhouse confrontation in a story that questioned the ethics of the prosecutor. Two months later, Smith County announced it would retry Cook.

Tunnell was a cantankerous jurist who ran his courtroom with a heavy gavel. On his own motion, he changed the venue of the case from Tyler to Georgetown, a town noted for its law-and-order juries. When the trial began in October 1992, the state once again portrayed Cook as a sadistic voyeur who didn't know his victim and cut off her body parts before stuffing them in a stocking as sexual souvenirs. Tunnell aided them in that portrayal. He permitted the Dykes brothers to testify that Cook said he had seen the victim naked while he was peering into her window. But he excluded Cook's statement that he had been an invited guest inside Edwards' apartment, ruling it was hearsay and leaving the defense with no plausible explanation as to how Cook's fingerprints got on Edwards' patio door.

If Dobbs had wanted payback against Hanners, he certainly got it when he called Cook's most ardent defender as a witness for the prosecution. Hanners reluctantly testified that Cook had told him during their death row interview that he didn't know Edwards, once again corroborating the state's stranger-on-stranger theory.

Tunnell refused to allow the defense to present any evidence of police or prosecutorial misconduct from the '78 trial. The jury would never learn that Smith County prosecutors had presented what defense attorneys claimed was perjured testimony, had suppressed highly exculpatory evidence, or had insisted a fingerprint examiner give an opinion that was a scientific impossibility.

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