In a new twist for a case full of them, lawyers of Kerry Max Cook, the Dallas man sentenced to death for a gruesome rape and murder before being exonerated two decades later, are accusing a prosecutor in his case of taking home the murder weapon as a dark, twisted souvenir.
This accusation, part of a motion filed in Smith County, is part of Cook's ongoing effort to officially clear his name and record after 35 years of being branded by the state as a murderer. Cook, who now lives in Dallas, pleaded "no contest" to a reduced murder charge in 1999 and reclaimed his freedom. As part of the plea agreement that freed him, he never admitted guilt. But legally, he is not recognized as innocent. His attorneys are now working to get a judge to rule on his innocence, and finally bring an end -- one way or another -- to his 35-year quest to clear his name.
Lately it's been a mix of setbacks and small victories. A judge recently granted permission for DNA testing of new evidence, but refused a request that Smith County District Judge Christi Kennedy be recused from the case.
But on Monday they filed a motion to reconsider the judge's denial based on new evidence -- including, they claim, the revelation that the case's original prosecutor, A.D. Clark, III, took home key evidence. That evidence included "the murder weapon -- a blood soaked knife -- and a sample of Mr. Cook's hair," according to the filing. Clark has allegedly had the evidence in his possession for years.
The revelation surfaced in a phone call last month between Judge John Ovard, Cook's attorneys and Assistant District Attorney Mike West, who said that Clark had kept the murder weapon for the past decade as a "souvenir."
Clark told the Associated Press that the allegations were "a complete falsehood." West could not be reached, but he told the AP that he had been misheard on that call.
West told the AP that a Tyler police sergeant named Eddie Clark had kept kept the knife:
Eddie Clark told prosecutors in an affidavit that he took the knife and the slide of hair with him from an evidence room several years ago when the rest of the material in Cook's case was going to be destroyed -- standard procedure then in a case considered closed, West said."A.D. Clark had nothing to do with that," West said. "They've just totally misrepresented that in the motion."
West declined to release Eddie Clark's affidavit and said it was unlikely Clark could face any criminal charges for keeping the knife. Eddie Clark did not have a listed phone number.
Marc McPeak, Cook's lawyer, tells Unfair Park that everyone on the phone seemed to understand that West was talking about A.D. Clark, III, the prosecutor. He classifies West's clarification between "A.D." and "Eddie" as a highly unlikely misunderstanding, and adds that regardless of who took the murder weapon, the key piece of evidence was taken home as personal property by someone in law enforcement.
Even if it was the sergeant, McPeak says, it "doesn't make me feel any better at all."
But the knife's disappearance at the hands of someone involved with the case is just one piece in the effort to secure the judge's recusal. McPeak also alleges that the District Attorney misrepresented facts of the case at a recent hearing with "a malicious intent designed to mislead the Court."
His motion references the well-documented instances of prosecutorial misconduct in Cook's case, and outlines the connections in Smith County's small-town legal system. To acknowledge Cook's innocence, Judge Kennedy would also have to acknowledge her colleagues' wrongdoing, McPeak writes. This includes Judge Jack Skeen Jr., the former District Attorney who originally prosecuted Cook. Clark, who is accused of taking the knife, is the first cousin of Skeen and the husband of Judge Carole Clark, another of Kennedy's colleagues. And Judge Kennedy's husband was an Assistant District Attorney in Smith County at the time Cook was originally prosecuted.
"As far as we're concerned, any ruling against Kerry, given everything that's happened, will forever be tainted by the misconduct because you can't separate his innocence from their misconduct," McPeak says. "It's impossible,"
The next hearing has not been scheduled. The Observer covered his case extensively in a two-part series in 1999. (Part 1, Part 2)
