Innocence Lost

Page 10 of 10

As the trial date approached, Cook decided to switch lawyers. Paul Nugent seemed tired. The case needed a fresh perspective. Even Jim McCloskey agreed. Through his job, Cook became friends with Dallas criminal attorney Cheryl Watley. She became his sounding board, his confidante, his lawyer.

Watley wanted to change the calculus of the case, believing that the only way Judge Jones would let the defense tell its story was if Cook himself took the witness stand. Let him tell about meeting Linda Jo Edwards, let him explain how his fingerprints got on the patio door. That would solve any hearsay problems with the Dykes brothers, but it would open Cook up to David Dobbs' cross-examination. If Cook were still on death row, he'd be unable to stand up to authority. But "over a year of being a free man gave me my balls back," Cook says. There were risks, of course: Cook had a criminal history, had lied to the media, had mutilated himself -- all this would have to be explained.

Judge Jones moved the case to Bastrop, Texas. Centurion had hired Colorado jury consultant Neil Hirshorn, who, after reviewing the responses of the jury panel to the questionnaire he had prepared, decided the jury was too old, too conservative, too aligned with law enforcement to be trusted. "This jury scares me," he told Cook on the eve of trial. "They don't have the backbone to put the system on trial."

Despite their public statements that Smith County wanted Cook back on death row, prosecutors seemed interested in making a deal. Would Cook plead guilty to a 40-year sentence? Would he plead guilty to his time served in prison? "Kerry's essence was his innocence," Watley says. "He was willing to die rather than admit he was guilty." He instructed Watley to refuse all offers.

On February 5, 1999, only 11 days before trial, Watley received a phone call from Dobbs. The state had submitted the victim's panties found beside her leg to the DPS crime lab in Austin for DNA testing. Amazingly, a semen stain was found after all these years. Now Dobbs wanted blood samples from Cook, as well as Jim Mayfield, whose attorney said he would cooperate immediately. Dobbs would ask Parkland Hospital for a blood sample from Robert Hoehn. He also wanted a continuance. But Jones insisted the parties begin jury selection while the tests were being completed.

On February 16, only 30 minutes before jury selection, the prosecution made its final offer. If Cook would plead "no contest" to a reduced charge of murder, he could walk out of the courtroom a free man. There would be no fingerprinting, no checking in and out of prison, no admission of guilt. The judge would find him guilty of murder, but not because of any confession from Cook.

After Cook huddled with his lawyers, friends, and supporters, Watley finally told him outright: "Kerry, we want you to come home. Put an end to this nightmare today."

Reluctantly, Cook accepted the prosecution's offer.

But that didn't stop Cook. Even as a free man, he was driven to prove his innocence, and he hung his hopes on the DNA test results. Semen stains found at the scene of a crime seemed like fairly damning evidence -- only the prosecution appeared in no hurry to release the results. Apparently Mayfield wasn't quite as cooperative as his attorney first indicated, Cook says. He didn't provide a blood sample until a month after Cook's plea. Only after Cook went to the media did the prosecution finally reveal that the recovered DNA matched Mayfield.

Although the state had argued in its motion for continuance how important the test was to both the state and the defense, David Dobbs now dismissed the results as irrelevant. He claimed that the semen stain might even survive if the panties had been washed, which suggested that intercourse might have occurred long before the murder. (One serologist contacted by the Observer said that the chance of a testable amount of semen surviving washing would be "close to impossible.")

"Why was Smith County trying to undermine this?" Cook asks. At a minimum, the results destroyed Jim Mayfield's credibility. He had testified repeatedly that he had not had sex with Edwards since before her suicide attempt, three weeks prior to the murder. Now there was evidence showing he might have had sex with her within hours of her death.

Dobbs told reporters that as far as he was concerned, the case was closed.

But for Cook there can be no closure. He lives somewhere in the gray between guilt and innocence, acquittal and conviction. Some nights he can't sleep, hearing the jury's verdict in his head. Other nights he regrets compromising himself, making a deal for less than "complete and total exoneration." Wherever he goes, he has to explain himself: at every job he applies for, in every media interview he grants, to every friend he takes into his confidence. And no matter how convincing he sounds, no matter how clearly he makes a case that prosecutors lied and cheated to keep him on death row for 17 years, he knows that some people will always doubt him. Some people will always wonder, "Yeah, but what if he really did do it?" And it's at those moments that Kerry Cook believes there are some fates worse than death.

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Mark Donald
Contact: Mark Donald