Texas’s highest criminal court last week formally exonerated Kerry Max Cook, now 68, finding him actually innocent of the 1977 murder for which he wrongly spent 20 years on death row. He is the 198th person exonerated after being sentenced to death, according to the Death Penalty Information Center.
“This case is riddled with allegations of State misconduct that warrant setting aside Applicant’s conviction,” Judge Bert Richardson wrote in the majority opinion. “And when it comes to solid support for actual innocence, this case contains it all—uncontroverted Brady violations, proof of false testimony, admissions of perjury and new scientific evidence.”
Calling this “one of the most notable murder cases of the last half-century,” the court in a 106-page opinion traced a “winding odyssey” from 1977, when Smith County prosecutors charged Mr. Cook in the rape, murder, and mutilation of a 21-year-old woman.
The State won a conviction and death sentence in 1978 by illegally withholding favorable evidence from the defense and presenting what was later proven to be false evidence, including totally fabricated testimony from a jailhouse snitch who said Mr. Cook confessed to the murder. Prosecutors not only concealed they had given their star witness a plea deal (for two years instead of life), but orchestrated his entire testimony, showing him pictures of the crime scene and giving him details about the investigation. “I lied on [Cook] to save myself,” he later admitted in court.
Prosecutors also deceived the jury about their only physical evidence against Mr. Cook, the court found. The State presented testimony that fingerprint evidence placed Mr. Cook in the victim’s apartment at the time of the crime. But the fingerprint expert later admitted there was no way to scientifically estimate when the fingerprints had been left and he deliberately created a false impression for the jury after the district attorney pressured him.
Since this first “bookend of deception,” the court wrote, “the case has been plagued with mistrials, withheld evidence, and misconduct.” The conviction was overturned in 1991, and at the second trial in 1992, the State presented testimony that body parts removed from the victim were placed in her missing stocking and taken as a souvenir by Mr. Cook. Then jurors found the “missing” stocking in the leg of the victim’s jeans when they examined the physical evidence during deliberations. A mistrial was declared after the jury could not reach a verdict.
The State nonetheless tried Mr. Cook a third time, and won another conviction and death sentence in 1994 that was thrown out on appeal because it was so tainted by misconduct.
In 1999, after they submitted the victim’s underwear for DNA testing but before they got the results excluding Mr. Cook, prosecutors persuaded Mr. Cook to accept a “no contest” plea that would leave his conviction intact but allow his release after two decades on death row that the court explained were nothing short of torturous.
Cook spent close to a decade and half on death row from the very beginning based on a web of fabricated testimony and misrepresentations. Even if Cook had been made aware of the deception, Cook was left with little-to-no legal recourse because it was outside the record on appeal. During that time, the record documents that Cook was subjected to extreme physical abuse and psychological trauma by other inmates. This included several emasculating tattoos forcibly carved into Cook’s back and side—which led him to attempt suicide in 1990. In a handwritten suicide note, he continued to proclaim his innocence in what he intended to be his last words…And nothing in the record shows that the State—completely aware of the deception because they initiated it—took any steps to halt Cook’s then-pending execution.
“Marking the other end of this 40-year odyssey,” the court wrote, “an alternate suspect admitted in a 2016 sworn deposition, under a grant of immunity, that he lied about the timing of his last sexual encounter with the victim” and “admitted to perjuring himself in front of multiple juries and at pretrial hearings.”
Mr. Cook asked the court in 2015 to find that he is actually innocent, and after nearly a decade of delay, the Texas Court of Criminal Appeals did exactly that last week. In its June 19 opinion, the court held that the “State resorted to improper means to achieve conviction” in this case—deliberately deceiving the court and jury, presenting perjured testimony and false evidence, and illegally concealing and even destroying exculpatory evidence.
“Several actions of the State go beyond gross negligence and reach into the realm of intentional deception against the tribunal,” the court concluded, but it declined to hold current prosecutors accountable for that misconduct.
“For almost half a century Cook has proclaimed his innocence. Cook has been the victim of numerous Brady violations, secret deals, prosecutorial blunders, and perjured testimony,” the court wrote. “After being incarcerated on death row for almost twenty torturous years, we hold that Cook has met the burden required for actual innocence and relief is hereby granted.”