WRIT NO.

_________________________
TRIAL COURT NO. 1-77-179
EX PARTE

KERRY MAX COOK

IN THE DISTRICT COURT

241ST JUDICIAL COURT
SMITH COUNTY, TEXAS

APPLICANTS MEMORANDUM OF LAW IN SUPPORT OF

APPLICATION FOR WRIT OF HABEAS CORPUS
SEEKING RELIEF FROM FINAL FELONY CONVICTION
UNDER CODE OF CRIMINAL PROCEDURE ART. 11.07 AND 11.073

Gary A. Udashen
Texas Bar No. 20369590
Bruce Anton
Texas Bar No. 01274700
(Appearing on behalf of the
Innocence Project of Texas)

Nina Morrison
(Admitted pro hac vice)
Barry C. Scheck
(Admitted pro hac vice)

SORRELS, UDASHEN & ANTON

2311 Cedar Springs Road
Suite 250
Dallas, Texas 75201
Telephone: (214)468-8100
Facsimile: (214) 468-8104

INNOCENCE PROJECT, INC.

40 Worth St.
Suite 701
New York, New York 10013
Telephone: (212)364-5340
Facsimile: (212) 264-5341

Co-Counsel for Applicant Kerry Max Cook

TABLE OF CONTENTS
Table of Authorities.......................................................................................................................iv
Introduction and Summary of Claims for Relief............................................................................1
Procedural History..7
I.

Mr. Cooks First Three Trials (1978-1996)............................................................8

II.

Remand for Fourth Trial, and No Contest Plea to Time Served (1997-1999)...13

III.

Post-Conviction DNA Testing and Destruction of Hair Evidence (1999-2015)...16

A.

State Receives Lab Report on Semen, Discontinues Testing on Hair.......16

B.

Chapter 64 Enactedand State Destroys Exculpatory Evidence..........17

C.

DNA Testing of Remaining Evidence Under Chapter 64.........................19

1.

Motions for DNA Testing by Mr. Cookand by the State...19

2.

DNA Test Results Again Exclude Mr. Cook and Inculpate

Mayfield.23

Arguments and Grounds for Habeas Relief...................................................................................24

Ground One: Kerry Max Cook is actually innocent of the rape and murder of Linda Jo
Edwards..............................................................................................................................25
I.

Legal Authority..........................................................................................25

II.

Facts Establishing Actual Innocence.........................................................29

A.

Ms. Edwards Long Affair With Mayfield, and Her Brutal

Murder....31

B.

Victims Roommate Seesand Immediately Identifiesthe

Killer..............................................................................................35

C.

Mayfields Anger, Jealousy, and Motive.......................................37

D.

Suspicious Circumstances..............................................................39

E.

A Failed Investigation....40

III.

1.

No meaningful investigation of Mayfield..41

2.

Physical evidence mishandled and manipulated....42

3.

Presentation of false/unreliable witness testimony............44

Under Elizondo and Tuley, Mr. Cook is Entitled to Actual Innocence

Relief..........................................................................................................48
A.

No Reasonable Jury Would Have Convicted Mr. Cook on the

Present Record...............................................................................48

B.

Impact on Other Evidentiary Rulings............................................53

Ground Two: New scientific evidence requires vacatur of Mr. Cooks conviction under
Art. 11.073 Tex. Code Crim. Proc.....................................................................................58
I.

Legal Authority..........................................................................................59

II.

Mr. Cook is Entitled to Art. 11.073 Relief................................................61

A.

Post-Conviction DNA Test Results...............................................61

B.

States Profiling Evidence is Scientifically Invalid and

Inadmissible...................................................................................63
1.

The unscientific profiling evidence previously used by

the State..63

2.

Research published since Mr. Cooks trial established that

there is no legitimate scientific basis for the States
criminal profiling evidence............................................64

Ground Three: The State suppressed exculpatory evidence it possessed prior to entry of
Mr. Cooks no-contest plea................................................................................................67
I.

Legal Authority..........................................................................................67

II.

Mr. Cooks Due Process Rights Were Violated by Prosecutors Failure to

Disclose Exculpatory Evidence.................................................................69

Ground Four: Mr. Cooks due process rights were violated by the States bad faith
destruction of exculpatory evidence..................................................................................75
I.

Legal Authority..........................................................................................75

ii

II.

Smith County Prosecutors and Police Violated Due Process by Destroying

the Hair Evidence in Mr. Cooks Case Before It Could be DNA
Tested.........................................................................................................77
A.

Trombetta Violation.......................................................................77

B.

Youngblood Violation....79

C.

Similar Cases.80

Ground Five: Mr. Cooks due process rights were violated by the presentation of false
testimony by James Mayfield............................................................................................85
Potential Laches Questions....86
Necessity for an Evidentiary Hearing on this Writ Application....89

iii

TABLE OF AUTHORITIES

Cases
Arizona v. Youngblood, 488 U.S. 51 (1988)........................................................................6, 76, 79
Blacklock v. State, 235 S.W.3d 231 (Tex. Crim. App. 2007)..................................................29, 51
Brady v. Maryland, 373 U.S. 83 (1963)..................................................................................67, 68
California v. Trombetta, 467 U.S. 479 (1984).....................................................................6, 76, 77
Cloud v. State, 567 S.W.2d 801 (Tex. Crim. App. 1978)..............................................................54
Chambers v. Mississippi, 410 U.S. 284 (1973).............................................................................54
Commonwealth v. O'Brien, 736 N.E.2d 841 (Mass. 2000)............................................................55
Conlin v. State, 2007 WL 5101236 (Tex. App. - Beaumont 2008)...............................................29
Cook v. State, 741 S.W.2d 928 (Tex. Crim. App. 1987).........................................................13, 37
Cook v. State, 821 S.W. 2d 600 (Tex. Crim. App. 1991)...............................................................9
Cook v. State, 940 S.W.2d 623 (1996), cert. denied, 1997 WL 33557591 (June 17,
1997).......................................................................................................................................passim
Critchley v. State, 2001 WL 1583662 (Tex. App. - Austin 2001).................................................29
Dist. Attys Ofc. v. Osborne, 557 U.S. 52 (2009)..........................................................................78
Ex Parte Adams, 768 S.W.2d 281 (Tex. Crim. App. 1989)...........................................................67
Ex Parte Allen, 366 S.W.3d 696 (Tex. Crim. App. 2009).............................................................87
Ex Parte Byars,176 S.W.3d 841 (Tex. Crim. App. 2005).............................................................89
Ex Parte Chabot, 300 S.W.3d 768 (Tex. Crim. App. 2009)................................................5, 85, 88
Ex Parte Chavez, 371 S.W.3d 200 (Tex. Crim. App. 2012)..........................................................88
Ex Parte Elizondo, 947 S.W.2d 202 (Tex. Crim. App. 1996).................................................passim

iv

Ex Parte Ghahremani, 332 S.W.3d 470, 477-78 (Tex. Crim. App. 2011)....................................85
Ex Parte Harrison, 310 S.W.3d 453 (Tex. Crim. App. 2010).......................................................24
Ex Parte Henton, 2006 WL 362331, No. AP-75344 (Tex. Crim. App. 2006)..............................28
Ex Parte Karage, 2005 WL 2374440 (Tex. Crim. App. Sept. 28, 2005).......................................27
Ex Parte Miles, 359 S.W. 3d 647 (Tex. Crim. App. 2012)............................................................69
Ex Parte Moon, 2005 WL 767819.................................................................................................28
Ex Parte Napper, 322 S.W.2d 202 (Tex. Crim. App. 2010)...................................................84, 85
Ex Parte Perez, 398 S.W.3d 206 (Tex. Crim. App. 2013)............................................................87
Ex Parte Phillips, 2008 WL 44172 (Tex. Crim. App. Oct. 1, 2008)..................................................28
Ex Parte Richardson, 70 S.W.3d 865 (Tex. Crim. App. 2002).....................................................69
See Ex Parte Robbins, No. WR-73,484-02, (Tex. Crim. App. Nov. 26, 2014).......................60, 88
Ex Parte Thompson, 153 S.W.3d 416 (Tex. Crim. App. 2005).....................................................26
Ex Parte Tuley, 109 S.W.3d 388 (Tex. Crim. App. 2003).............................................4, 26, 27, 57
Flores v. State, 940 S.W.2d 189 (Tex. App. - San Antonio 1996, no pet.)...................................69
Giglio v. U.S., 405 U.S. 150 (1972)...............................................................................................67
Herrera v. Collins, 506 U.S. 390 (1993).......................................................................................25
Holmes v. South Carolina, 547 U.S. 319 (2006)...........................................................................56
Holt v. United States, 342 F.2d 163 (5th Cir. 1965)................................................................54, 55
House v. Bell, 547 U.S. 518 (2006).........................................................................................26, 51
Imbler v. Pachtman, 424 U.S. 409, n.25 (1976)............................................................................69
Johnson v. United States, 551 A.2d 513 (D.C. 1988)....................................................................55
Kyles v. Whitley, 514 U.S. 419 (1995)....................................................................................passim
Leach v. State, 548 S.W.2d 383 (Tex. Crim. App. 1977)..............................................................57

Maryland v. King, 133 S.Ct. 1958 (2013)......................................................................................78

Norris v. Slayton, 540 F.2d 1241 (4th Cir. 1976)..........................................................................68
Pena v. State, 353 S.W.3d 797 (Tex. Crim. App. 2011)................................................................69
Pena-Ruiz v. State, 2002 WL 437283 (Tex. App. - Houston [1st Dist.] 2002).............................29
People v. Alvarez, 229 Cal. App.4th 761 (2014)............................................................................82
People v. Hall, 718 P.2d 99 (Cal. 1986)........................................................................................55
Pettijohn v. Hall, 599 F.2d 476 (1st Cir. 1979).............................................................................54
Roberson v. State, 766 N.E.2d 1185 (Ind. 2002)...........................................................................81
Roberson v. State, 16 S.W.3d 156 (Tex. App. - Austin 2000).................................................29, 51
Rodriguez v. State, 340 S.W.2d 61 (Tex. Crim. App. 1960).........................................................57
Schlup v. Delo, 513 U.S. 298 (1995).......................................................................................26, 87
Smith v. Cain, 132 S.Ct. 627 (2012)..............................................................................................68
Sparks v. State, 759 P.2d 180 (Nev. 1988)..............................................................................80, 81
Sparks v. State, 820 S.W.2d 924 (Tex. Cr. App. 1991).................................................................57
State v. Benson, 788 N.E.2d 693 (Ohio Ct. App. 2003)................................................................82
State v. Cotton, 351 S.E.2d 277 (1987)..........................................................................................55
State v. Karage, 1999 WL 454638 (Tex. App. San Antonio Jul. 7, 1999).....................................28
State v. Lee, 2006 WL 1350226 (Tex. App. - Waco 2006).....................................................29, 51
Spence v. State, 795 S.W.2d 743 (Tex. Crim. App. 1990)............................................................55
State v. Denny, 357 N.W.2d 12 (1984)..........................................................................................55
State v. Echols, 524 A.2d 1143 (1987)..........................................................................................55
State v. Stuart, 907 P.2d 783 (Idaho 1995)....................................................................................82
State v. Sturdivant, 155 A.2d 771 (1959) cert. den., 362 U.S. 956 (1960)....................................55

vi

Thomas v. State, 841 S.W.2d 399 (Tex. Crim. App. 1992)...........................................................69

United States v. Armstrong, 621 F.2d 951 (9th Cir. 1980)............................................................54
United States v. Bagley, 473 U.S. 667 (1985)...............................................................................67
United States v. Brannon, 616 F.2d 413 (9th Cir.), cert. den. sub nom Cox v. United States, 447
U.S. 908 (1980)..............................................................................................................................54
United States v. Crenshaw, 698 F.2d 1060 (9th Cir. 1983)...........................................................54
United States v. DeNoyer, 811 F.2d 436 (8th Cir. 1987)...............................................................54
United States v. Elliott, 83 F.Supp.2d 637 (1999 E.D. Va.)..........................................................82
United States v. Green, 786 F.2d 247 (7th Cir. 1986)...................................................................54
United States v. Morgan, 581 F.2d 933 (D.C. Cir. 1978)..............................................................54
United States v. Robinson, 544 F.2d 110 (2d Cir. 1976), cert. den. sub nom. Robinson v. United
States, 434 U.S. 1050 (1978).........................................................................................................54
United States ex. rel. Smith v. Fairman, 769 F.2d 386 (7th Cir. 1985).........................................68
United States v. Stevens, 935 F.2d 1380 (3rd Cir. 1991)...............................................................55
Williams v. State, 643 S.W.2d 477, 483 (Tex. Crim. App. 1982)..................................................55
Williams v. Whitley, 940 F.2d 132 (5th Cir. 1991)........................................................................69
Statutes
Acts 2013, 83rd Leg., ch. 410 (S.B. 344), 1, eff. Sept. 1, 2013..................................................61
Tex. Code of Crim. Proc. Ann. Art. 64................................................................................17, 18
Tex. Code Crim. Proc. art. 11.07.........................................................................................70, 89
Tex. Code Crim. Proc. art. 11.073.......................................................................................59, 60
Tex. Code Crim. Proc. art. 38.43.............................................................................................18, 75
Tex. R. Evid. 702..........................................................................................................................66

vii

Other Authorities
Brent Snook, Richard M. Cullen, Craig Bennell, Paul J. Taylor & Paul Gendreau, The Criminal
Profiling Illusion: Whats Behind the Smoke and Mirrors, Criminal Justice & Behavior
(2008)............................................................................................................................................ 65
Christopher Devery, Criminal Profiling and Criminal Investigation, Journal of Contemporary
Criminal Justice. (2010).............................................................................................................65
John Henry Wigmore, Evidence in Trials at Common Law, Volume 1A, Aspen Publishing Co.
(Tillers Rev. 1983).....................................................................................................................54
Marc Bookman, Does an Innocent Man Have the Right to be Exonerated? The Atlantic, December 6,
2014)........................................................................................................................................................77

Mark Donald, Lethal rejection, Dallas Observer, December 12, 2002.....................................18

Robert M. Cary, Craig D. Singer, Simon A. Latcovich, Federal Criminal Discovery, American
Bar Association (2011)..............................................................................................................67
The Innocence Project, The Cases: Exonerated by DNA (August 30, 2015)................................29

viii

TO THE HONORABLE JUDGE OF SAID COURT:

NOW COMES the Applicant, KERRY MAX COOK, and submits this Memorandum in
Support of Application for Writ of Habeas Corpus Seeking Relief from Final Felony Conviction
Under Texas Code of Criminal Procedure Art. 11.07 and 11.073, and would show the following:

INTRODUCTION AND SUMMARY OF CLAIMS FOR RELIEF

Kerry Max Cook is factually innocent of the charge that he raped and murdered Linda Jo
Edwards, a university secretary who was found nearly nude and stabbed to death in her home in
June 1977. Mr. Cooks case is one of the most notorious capital prosecutions in United States
history -- both for the brutality he endured while spending more than twenty years on death row
as a result of his wrongful convictions, and for the judicially-substantiated pattern of state
misconduct that repeatedly prevented him from establishing his factual innocence at trial. It is
no exaggeration to state, as Mr. Cooks trial counsel did nearly two decades ago, that [t]he
prosecutorial misconduct in this case, as found by the Texas Court of Criminal Appeals, is more
pervasive and more egregious than any prosecutorial misconduct found in any reported capital
murder case in the history of Texas jurisprudence.1 Indeed, the intervening years have only
underscored that truth. For Mr. Cook now presents this Court with new evidence including six
rounds of state-of-the-art, post-conviction DNA testing confirming his factual innocence, and
establishing that his present conviction, obtained by an extraordinary no contest plea in
February 1999, violates due process.

See Exh. A: Defendants Motion to Dismiss for Prosecutorial Misconduct and Violation of
Defendants Sixth Amendment Right to Counsel, Case No. 1-77-179 (filed 12/29/98).
1

At the time of his arrest, Mr. Cook was a twenty-one year old bartender with no history
of violence towards anyone. In August 1977, he found himself falsely accused of raping and
murdering Ms. Edwards (who resided in the same apartment complex where he had been staying
with a friend at the time of her death) on the bizarre and wholly unsupported theory that Mr.
Cook (who is heterosexual) was a closeted gay man who brutally raped, mutilated, and murdered
his female neighbor in an act of lust and rage over his own so-called sexual ambivalence.
Mr. Cook spent more than twenty years on Texas death row as a result of these patently false
allegations.

For nearly two decades, the State not only deprived Mr. Cook of his liberty and

caused him to live in fear of imminent execution for crimes he did not commit; he also suffered
near-unimaginable acts of violence (including rape and disfigurement) at the hands of some of
Texas most violent capital convicts.
During that time, Mr. Cook endured three separate capital murder trials with one ending
in a hung jury, and his two jury convictions reversed by the Court of Criminal Appeals.
Throughout this process, the States failure to honor its most basic ethical and legal duties
ultimately led the Court of Criminal Appeals to hold, after Mr. Cooks third trial, that
[p]rosecutorial and police misconduct has tainted this entire matter from the outset. Cook v.
State, 940 S.W.2d 623, (Tex. Crim. App. 1996) at 627. Compounded by what the CCA found
were erroneous rulings by the trial court, the effect of the States misconduct was to deprive Mr.
Cook of a meaningful opportunity to demonstrate his actual innocence including through
evidence previously suppressed by the State that strongly supported defense claims that (1) the
victims married, jealous ex-lover, James Mayfield, was her real killer, and (2) what little
evidence the State had offered against Mr. Cook was patently false and unreliable.

In 1999, facing an unprecedented fourth capital murder trial, Mr. Cook reluctantly
accepted a virtually unprecedented no contest plea offer to time served one that guaranteed
his immediate freedom, and required no admission of guilt. He did so only out of an eminently
reasonable fear that if he declined the States offer, he would again face wrongful imprisonment,
and even execution, for crimes he did not commit.
It is now time for the Courts of this State to officially declare what has long been clear to
the public at large: that Mr. Cook is innocent of the rape and murder of Linda Jo Edwards. This
Court is duly empowered to grant such relief, notwithstanding Mr. Cooks February 1999 plea.
For the present Application is based on substantial and compelling new evidence including
both state-of-the-art DNA testing, and due process violations by Smith County officials that
has only become available since the plea was entered. Viewed in light of the entire record, the
new evidence convincingly points to James Mayfield, and not Kerry Cook, as the person who
actually murdered Ms. Edwards in June 1977.
As set forth herein, Mr. Cooks Application rests on five legal grounds. First, he offers
the results of six rounds of advanced, post-conviction DNA testing, conducted in 1999 and in
2013-2015. These include DNA tests conducted under a statute (Chapter 64 of the Code of
Criminal Procedure) that was not enacted until more than two years after Mr. Cooks
conviction. Significantly, three of the six DNA reports were generated at the States request,
after prosecutors boldly (but incorrectly) predicted that DNA testing would inculpate Mr.
Cook. In fact, although DNA tests were conducted on dozens of samples and cuttings from
evidence at the scene, none yielded a single trace of Mr. Cooks DNA. By contrast, the DNA
tests did identify another man James Mayfield as the donor of critical evidence. This
testing has revealed that Mayfield, and not Mr. Cook, is the lone man whose semen is present

on the pair of torn underwear that the State has long contended (and the record demonstrates)
was cut away from Ms. Edwards body by her killer and found next to her corpse. This DNA
evidence thus dramatically impeaches Mayfields false claims made under oath at trial, and
in pretrial depositions that (1) the last time he had sexual intercourse with Ms. Edwards was
several weeks prior to her death, and (2) far from harboring any lingering passion or rage
towards Ms. Edwards, at the time of Ms. Edwards death, he was acting as a benevolent father
figure towards his former lover, and that she was merely like a daughter to him.
The new DNA is the final, critical piece of evidence in a 38-year-old record that
powerfully inculpates Mayfield. That record includes a detailed description of the perpetrator
by the only eyewitness who saw the assailant in the victims apartment that perfectly matches
Mayfield, and numerous contemporaneous statements by the witness that she believed
Mayfield was, indeed, the man she saw. It also includes Mayfields bizarre statements and
behavior in the period surrounding the murder, including ordering, for the campus library, a
gruesome forensic psychology on sexual criminals that contained photos of bodily
mutilations eerily similar to the injuries suffered by Ms. Edwards; and witness accounts of his
possessiveness and rage towards Ms. Edwards in the days preceding her death. Weighed
against the utter lack of any credible evidence (forensic or otherwise) against Mr. Cook, the
present record is more than sufficient for this Court to grant relief on grounds of actual
innocence, i.e., that no reasonable juror would have convicted [Mr. Cook] in light of the new
evidence. Ex parte Elizondo, 947 S.W.2d 202 (Tex. Crim. App. 1996); see also Ex Parte
Tuley, 109 S.W.3d 388 (Tex. Crim. App. 2003) (holding that Elizondo relief based on newly
discovered evidence is equally available to persons who pled guilty or nolo contendere).

Second, because Mr. Cooks Application is based on previously-unavailable DNA

testing and other advances in forensic science, this Court may also grant relief under the lessburdensome standard of Tex. Code Crim. Proc. art. 11.073 (2013), which requires only that the
Applicant establish, by a preponderance of the evidence, that in light of the present record and
including the new scientific evidence, he would not have been convicted.

Third, the same

DNA evidence and other record evidence that supports Mr. Cooks innocence claim also
demonstrates that Mayfield testified falsely against him entitling Mr. Cook to relief whether
or not the falsity of that testimony was actually known to prosecutors or police. See Ex parte
Chabot, 300 S.W.3d 768, 771-72 (Tex. Crim. App. 2009) (granting due process relief where
post-conviction DNA testing revealed that key witness for State at defendants trial had falsely
denied having had sexual intercourse with homicide victim on the night of her murder).
And there is more. For the record now also demonstrates that the taint[] of the States
pattern of misconduct did not end with the Court of Criminal Appeals 1996 rebuke and reversal
of Mr. Cooks conviction but continued in the proceedings that led up to and followed the entry
of his 1999 plea. In Mr. Cooks fourth claim for relief, he alleges that the DNA and other record
evidence demonstrates that the prosecutors who made him this unprecedented no-contest plea
offer (then-District Attorney Jack Skeen, now a Smith County District Court judge, and his
former Chief Felony Prosecutor and First Assistant District Attorney David Dobbs) were, in all
likelihood, personally aware that Mayfield had perjured himself in prior proceedings and would
prove to be the donor of the semen on Ms. Edwards underwear even though no final, written
report from the States DNA laboratory had been issued. Yet they failed to disclose this critical
Brady information to the defense.

Last, but certainly not least, Mr. Cook alleges that California v. Trombetta, 467 U.S. 479,
489 (1984) and Arizona v. Youngblood, 488 U.S. 51 (1988), require reversal of his conviction on
due process grounds, because Smith County officials intentionally destroyed exculpatory
forensic evidence. Specifically, documents produced by the District Attorneys Office for the
first time in 2012 (in response to Mr. Cooks Chapter 64 motion for DNA testing) revealed that
in December 2001, Smith County official(s) authorized the destruction of some (but not all) of
the evidence from Mr. Cooks case. Among the items singled out for destruction was a hair with
a bloody root found on Ms. Edwards buttocks. In 1977, just one month after Mr. Cooks
arrest, prosecutors were told by microscopic hair analysts at the Department of Public Safety that
the hair did not belong to Mr. Cook; the State did not compare the hair to Mayfield. Twenty-two
years later, in February 1999, the State successfully moved to delay the start of Mr. Cooks
fourth trial specifically to conduct DNA testing on this hair which had tissue attached to it that
appeared suitable for DNA analysis as well as on the semen from Ms. Edwards underwear;
this testing, prosecutors maintained, could provide significant new evidence as to who killed
Linda Jo Edwards. But after the first DNA testing report was issued in April 1999 (two months
after Mr. Cooks plea was entered), inculpating Mayfield as the semen donor, the remaining
DNA testing ceased, and Tyler police were dispatched to retrieve the untested hair from the DPS
laboratory in May. Smith County officials did nothing with the hair until more than two years
later, when for reasons the District Attorneys Office has refused to explain or disclose its
destruction was requested and authorized.

Notably, the sudden decision to destroy this hair

came years after Mr. Cooks plea, but just months after the Legislature enacted Chapter 64 of the
Code of Criminal Procedure which provided, for the first time, a statutory vehicle for

convicted Texans (specifically including those who, like Mr. Cook, had entered no-contest pleas)
to prove their innocence through DNA testing.
Since the disclosure of the documents reflecting the States decisions to stop DNA testing
on the hair and then to unilaterally destroy it, Mr. Cook has requested the State provide discovery
regarding the circumstances under which these decisions were made (including, but not limited
to, a copy of a still-undisclosed attachment to the Police Departments destruction order
referencing the District Attorneys Office, which in 2001 was still headed by Mr. Skeen), but to
no avail. He thus seeks an evidentiary hearing under art. 11.07(d) discover and adjudicate the
complete facts surrounding the destruction of this critical evidence. Based on the present record
alone, however, he respectfully submits that this case is the rare and extraordinary one in which
Youngblood and Trombetta are satisfied -- given what Mr. Skeen, Mr. Dobbs, and other Smith
County officials already knew about the exculpatory nature of this evidence (i.e., that the hair
was not Mr. Cooks, and that the DNA evidence on other sexual assault samples had inculpated
their own witness, James Mayfield), and the timing and circumstances under which the hairs
destruction was suddenly ordered.

PROCEDURAL HISTORY
The complex history of this case spans nearly four decades, three separate capital trials,
sixteen months of pretrial proceedings leading up to Mr. Cooks 1999 no contest plea, and
dozens of volumes of material relating to investigative and post-conviction proceedings. For
necessary context, the facts and history most relevant to the specific legal claims in this writ are
summarized in this background section and/or in Ground One of this Memorandum.

I.

Mr. Cooks First Three Trials (1978-1996)

Mr. Cook was tried, convicted of capital murder, and sentenced to death in Tyler, Texas,
in July, 1978. At the time of his first trial, Smith Countys District Attorney was A.D. Clark III.
Mr. Clarks assistants, Michael Thompson and Thomas Dunn, appeared as lead counsel for the
State at trial.
Two months after Mr. Cooks first trial, one of the States chief witnesses, former
jailhouse inmate Edward Shyster Jackson, recanted his testimony against Mr. Cook to the
news media and a Texas Ranger. Jackson admitted that the jailhouse confession he had
attributed to Mr. Cook at trial was a total fabrication. He further admitted that he had falsely
testified at trial when he claimed to have received no benefits in exchange for his testimony; in
fact, he had personally met with DA Clark and ADA Thompson to discuss the terms of his
cooperation, who promised (and later delivered on) a steep reduction of his first-degree murder
charge to involuntary manslaughter, for which he served just two years. Approximately one
month after Jacksons recantation, ADA Thompson committed suicide. It was Mr. Thompson
who had falsely assured Mr. Cooks jury that Jackson had no deal with the State (I will be
yelling for [Jacksons] head right before this rail of justice just like I am on [Mr. Cook] and it
will fall . . . I dont make deals with killers). See Exh. B: Appellants Opening Brief, filed July
17, 1995 at 10-11.2

For ease of reference given the volume of the record and complexity of this case, unless
otherwise indicated, the facts cited herein are taken from Appellants Opening Brief to the Court of
Criminal Appeals (filed after his third capital trial), filed by Attorney Paul Nugent and dated July 17,
1995, which quotes directly from the original record, and a copy of which is attached hereto as Exhibit A.
The State has previously conceded that the facts set forth in that Brief are accurately stated. See Cook,
940 S.W.2d at n.6.

In 1983, while Mr. Cooks appeals from his 1978 conviction were pending, Jack Skeen
was elected Smith County District Attorney; Mr. Skeen and his chief deputies continued to
defend Mr. Cooks conviction and sentence on appeal.
Eleven and one-half years after Mr. Cooks first trial, the CCA vacated his conviction and
ordered a new trial. Cook v. State, 821 S.W. 2d 600 (Tex. Crim. App. 1991).
Unbeknownst to Mr. Cook, nearly two years before the CCA vacated his conviction (i.e.,
while Mr. Cook was still on death row), another of the States key witnesses had also recanted
his testimony. At Mr. Cooks 1978 trial, fingerprint analyst Doug Collard claimed that he could
age a fingerprint of Mr. Cooks found on the outside of the victims sliding glass door (which
Mr. Cook contended and the record now confirms, see infra -- was likely deposited when she
invited him to her home after meeting her at the complex swimming pool several days earlier);
specifically, Collard claimed that the print was between 6-12 hours old, thus placing its deposit
within the time of the murder. But in May 1989, Mr. Collard was the subject of a complaint by
the International Association for Identification based on the scientific invalidity of this
testimony; he then responded (in great detail, and in writing) that he knew his testimony was
indeed without scientific basis, and that he had only given it after being pressured by former DA
Clark to do so in 1977-78. Furthermore, Mr. Clarks successor, then-DA Jack Skeen, submitted
a letter in support of Collard to the IAI in May 1989 yet failed to disclose the substance of his
recantation to Mr. Cooks legal team for three more years, until August 1992.3 During that time,

See Exh. B at 22 and IAI documents attached as Exhibit C. Although Mr. Skeens letter of
support to the IAI provided the dates of Collards testimony (which, Collard argued, was given at a time
when he was not yet an IAI member) and did not address the merits, the letter demonstrates that Mr.
Skeen was personally on notice about the substance of Mr. Collards recantation and the admitted falsity
of his testimony. Yet Mr. Skeen and his chief assistant continued to suppress that favorable information
for another three years, during which time they relied upon and misrepresented the fingerprint evidence to
the courts.
3

Mr. Skeen continued to personally argue for Mr. Cooks execution, including in filings to the
U.S. Supreme Court, and to cite the Collards testimony when making the case for Mr. Cooks
alleged guilt.4
After Mr. Cooks conviction was reversed, he sought to bar retrial by reason of the
States earlier misconduct (including, but not limited to, its presentation of knowingly false
testimony described above). Judge Joe Tunnell of the 241st District Court held a hearing on the
motion in October 1992, and found, inter alia, that the States use of testimony from Mr. Collard
that it knew to be false was prosecutorial misconduct that was calculated to mislead, and
likely did mislead, the court and the jury. See Exh. B at 22-23. The Court also found that the
States failure to disclose its deal with inmate Jackson and false statements that no deal existed
constituted prosecutorial misconduct. Id. at 10-11. Ultimately, however, the Court permitted
the State to retry Mr. Cook.
Mr. Cook was tried for a second time, with the Court sua sponte changing venue to
Williamson County, in December 1992. A mistrial was declared after the jury deadlocked 6-6
on guilt. Mr. Cooks third trial took place in January-February 1994. The jury returned a guilty
verdict after 30 hours of sequestered deliberations over six days. Although Judge Jones had
earlier ruled that the State could not argue that Mr. Cooks motive for the crime was his alleged
homosexuality and/or perversion, ultimately, Mr. Skeen and Mr. Dobbs took (and were given)
broad latitude to improperly appeal to the jurys prejudices in this regard. See 1994
TT.XXXI.2785.5

See infra at pp. 11, 42.

Given the extensive record in this case, all trial transcripts will be referenced in the following
format: YearTT.Volume.Page. A CD with electronic copies of all trial transcripts and cited depositions is
being filed with this writ for the courts convenience.

10

Mr. Cook was again sentenced to death. During the penalty phase, the jury was shown a
graphic prison video of Mr. Cook in his cell, bleeding profusely and in great agony after trying to
cut off his own penis and commit suicide, which he did after suffering repeated acts of sexual
assault and mutilation by fellow inmates (as documented in his TDCJ records); over the
defenses vehement objection, prosecutors argued that his suicide attempt was proof of Mr.
Cooks perversion. See Exh. B at 139-141.
On November 6, 1996, the CCA again vacated Mr. Cooks conviction and sentence.
Cook v. State, 940 S.W.2d 623 (1996), cert. denied, 1997 WL 33557591 (June 17, 1997). The
Court found that due process was violated by the admission at retrial of a transcript of the 1978
testimony of States witness Robert Hoehn (a gay man and former acquaintance of Mr. Cooks
who had since passed away), who had falsely claimed that he and Mr. Cook watched an explicit
video and had sexual relations on the night of the murder; Hoehns testimony was wholly
impeached by his earlier grand jury testimony, which the State suppressed until well after Mr.
Cooks second trial began. (Indeed, it was not until the jury had begun deliberations at Mr.
Cooks 1992 trial that Mr. Cooks counsel discovered that prosecutors had the impeaching grand
jury testimony in their possession all along.). Id. at 626. The Court held that Hoehns earlier
testimony should have been barred altogether, because Mr. Cook was deprived of the
opportunity to question and impeach him on cross-examination. Id.
However, so troubled was the Court by the long history of police and prosecutorial
misconduct [that] has tainted this entire matter from the outset, id., that the majority opinion
dealt only briefly with whether the conviction should be reversed (which the Court treated as
essentially a foregone conclusion), and focused almost entirely on the broader issue which the
Court had never before found sufficient cause to consider, in any case before it of whether

11

retrial should be barred altogether. See id. at 625 (This case presents an issue of first
impression, namely, whether prosecutorial misconduct, magnified by the passage of over
fourteen years and the death of a key witness, can so degrade the normal workings of justice that
a fair trial becomes impossible and thus retrial is forbidden under due process and due course of
law principles). Among the pervasive misconduct cited by the Court was the following:

Recent death threats against Ms. Edwards by another person: namely, the mentally
unstable daughter of James Mayfield (Ms. Edwardss married former lover); Id. at 625.

The States failure to disclose a 1977 police report in which a Tyler Police sergeant
described Mayfields daughter who was, in addition to Mayfields wife, his only alibi
witness for the night of the murder as a pathological liar; Id. at 625-26, 628.

The undisclosed deal made with inmate Edward Scott "Shyster" Jackson in order to
induce him to falsely testify that Cook had confessed to the murder; Id. at 626.

The States failure to disclose grand jury testimony from at least three of its own
witnesses who had all confirmed that Mr. Cook and Ms. Edwards knew each other, and
that she had invited him to her apartment several days before the murder. This
suppressed evidence directly contradicted the States false assertion at trial that the two
had never socialized, which (according to the State) meant that Mr. Cooks fingerprint
could only have been deposited on the outside of the door to her apartment when he
illegally entered her home to commit the murder; Id. 6

The presentation of what prosecutors knew to be invalid testimony by crime scene

analyst Doug Collard as to the alleged time of deposit of Mr. Cooks fingerprint,
including the fact the District Attorneys Office had pressured Collard to present the
false and misleading evidence against Collards wishes, and failed to disclose Collards
statement and recantation until 1992; Id.

An attempt by Chief Felony prosecutor David E. Dobbs, who assisted District Attorney
Skeen in prosecuting Mr. Cook at trial in 1992 and 1994, to interview Mr. Cook outside
his counsels presence and without counsels knowledge or consent. Id.

The Court specifically cited the testimony of Rodney Dykes on this issue. In addition, at least
two other witnesses Randy Dykes and James Taylor confirmed that prior to Ms. Edwards murder,
Mr. Cook told them that a girl named Linda who lived in the complex and who he met at the pool had
invited him to her apartment earlier that week. See Exh. B at 98-100.

12

Ultimately, despite this egregious and repeated misconduct, the Courts three-justice
plurality reluctantly gave the State the option of trying Mr. Cook a fourth time. Id. at 627-628.
Two other members of the Court would have barred retrial, finding that the State's misconduct
has destroyed its ability to ensure a fair trial worthy of confidence in its result, and holding that
the States misconduct in this case does not consist of an isolated incident or the doing of a
police officer, but of the deliberate misconduct by members of the bar, representing the State,
over a fourteen year period from the initial discovery proceedings in 1977, through the first
trial in 1978 and continuing with the concealment of the misconduct in 1992. Id. at 638 (Baird
and Overstreet, J.J., concurring and dissenting). 7
II.

Remand for Fourth Trial, and No Contest Plea to Time Served (1997-1999)

Mr. Cook was released on bond on November 11, 1997. Venue for retrial was changed
to Bastrop County. On February 5, 1999 four days before Mr. Cooks fourth trial was
scheduled to begin the District Attorney filed an emergency Motion for a Continuance. The
motion asserted that the Texas DPS Laboratory in Garland had, that very same date, notified the
DAs office that it had discovered the presence of seminal fluid on the underwear Ms. Edwards
wore the night she was killed and which the killer had cut away from her body. The State sought
to delay the trial until the lab had completed DNA testing on the underwear to determine the
semen donors DNA profile and compare it to all possible suspects including Mr. Cook and
Mr. Mayfield; this testing, it asserted, was extremely importantto ensure the ends of justice
are achieved. See Exh. D: States Motion for Continuance, filed February 5, 1999 at 2; Exh. E:
February 8, 1999 Transcript of Hearing on Pretrial Motions at 6-7.

Judge Clinton did not participate in the ruling; however, at an earlier stage of the case, he had
personally voiced his own grave doubts about Mr. Cooks guilt, even before the suppressed Brady
material came to light. See Cook v. State, 741 S.W.2d 928 (Tex. Crim. App. 1987).

13

ADA Dobbs also asked for additional time to conduct DNA testing on the hair found on
Ms. Edwards buttocks, which, he asserted, had only recently become possible due to advances
in DNA technology. See Exh. D: States Motion for Continuance at 15, 21. Mr. Dobbs argued
that the hair testing was especially important in light of the positive semen sample on the
panties. See Exh. E: Transcript of Hearing on Pretrial Motions at 21. He asserted that any delay
in starting trial would be justified in order to ensure that the jury knew about all of these DNA
results, because the testing could now shed some light on who killed Linda Jo Edwards. He
vigorously argued that the DNA testing was important enough to delay the start of trial, since, in
his words, this procedure is supposed to be about finding the truth and about justice. Id. at 22.
For his part, Mr. Cook enthusiastically endors[ed] the States proposed testing,
provided it was conducted under secure conditions. He objected only to the States request to
postpone jury selection proposing, instead, that voir dire begin while the testing was underway,
with any continuance considered only if and when the testing was not complete before opening
statements were to begin. See Exh. F: Defendants Response to States Motion for Continuance,
filed February 8, 1999 at 1. The Court agreed, delaying the start of jury selection by less than
one week (to February 15), and directing DPS to expedite DNA testing in the meantime. See
Exh. E: Transcript of Hearing on Pretrial Motions at 32-33.
At that time, counsel for the parties were under a standing order not to speak with the
media about the case. But on the day that the State filed its DNA motion, Buck Files the
attorney for alternate suspect James Mayfield boldly predicted that the DNA testing would
vindicate his client and confirm Mr. Cooks guilt. See Exh. G: Lee Hancock, New evidence
might delay 4th Cook trial: 77 Tyler murder victims clothing may yield DNA, The Dallas
Morning News, Feb. 6th 1999 (stating that Mayfield is delighted to have the opportunity to

14

cooperate with the State and provide a DNA sample, and calling the discovery of semen on the
victims underwear a potential nightmare for the defense which may very well be the last nail
in [Mr. Cooks] coffin). Privately, ADA Dobbs himself told former Dallas Morning News
reporter David Hanners that prosecutors were eager to conduct the DNA testing because the
semen sample could only have been left by the killer.8
Six days later, rather than have Mayfield submit his DNA sample as promised, Mr. Files
conducted a private polygraph examination of his client during which Mayfield again flatly
denied having sexual relations with Ms. Edwards on the day of her death and sent a copy of the
polygraphers report to ADA Dobbs. See Exh. I: February 12, 1999 letter from Eric J. Holden to
Buck Files. (The record does not indicate why Mr. Files suddenly chose to polygraph his client,
whom he had been representing in this case for more than two decades, nor why it was
simultaneously copied to the DAs office.)
On that same date, the prosecution transmitted two plea offers to Mr. Cook's defense
team: (1) to plead "no contest" to Edwards' murder, signs a stipulation of evidence and is found
guilty; after which the State will recommend a forty year sentence with credit for time served; or
(2) to plead "no contest" to Edwards' murder under an "open plea" arrangement with the Court in
which he would be found guilty of murder; after which the Judge could sentence Cook to less
than forty years if he deems it appropriate.9

See David Hanners, Innocence Project, Texas Monthly, Mar. 5, 2012 attached as Exh. H
(emphasis supplied). Mr. Hanners is a former Pulitzer Prize-winning reporter for the Morning News; he
won a Silver Gavel award from the State Bar of Texas for his extensive coverage of Mr. Cooks case over
many years. At the time the DNA testing was pending in 1999, a gag order was in place and Mr. Hanners
did not publish what ADA Dobbs told him. But he remembers Mr. Dobbss exact words on this critical
DNA issue as if it were yesterday. Id.
8

9 See Exh. J: February 12, 1999 Letter from Smith County District Attorney Jack Skeen and
Assistant District Attorney David Dobbs to Cheryl Wattley, Esq.

15

On February 15 (in court, at the commencement of jury selection), Mr. Cook rejected
these offers, through counsel and in writing, as follows:
Mr. Cook did not murder Linda Jo Edwards. He is innocent. He has proclaimed
that innocence from his prison cell for the past twenty-one years. He will not
agree to any resolution of this case that requires an admission of guilt and/or a
return to custody. Consequently, Mr. Cook rejects your offer that he plea 'no
contest' in exchange for a forty year sentence.10
In response, and in a striking reversal of position, the State immediately made Mr. Cook
an entirely new offer -- to plead no contest and avoid any further prison time, without any
admission of guilt or wrongdoing. Mr. Cook accepted the offer -- although, as he told the press
that day, the decision to do so was a deeply painful one because (at that time) it precluded his
full legal exoneration.11 But having once been eleven days away from execution for crimes he
did not commit, and with the State having told his counsel that its new offer was strictly timelimited, Mr. Cook found himself rationally unable to turn down a no contest plea that both
guaranteed his life and liberty and required no false admissions. Id.
III.

Post-Conviction DNA Testing and Destruction of Hair Evidence (1999-2015)

A.

State Receives Lab Report on Semen, Discontinues Testing on Hair

On February 17, 1999, ADA Dobbs contacted DPS and instructed the analyst assigned to
the case to continue with the DNA testing as planned, notwithstanding the plea. See Exh. M:
Garland DPS File at 004.
On April 8, 1999 nearly two months after Mr. Cook entered his plea -- the DPS
laboratory issued a written report on the results of its testing on Ms. Edwards underwear. DPS
reported that it had obtained partial DNA profiles from a single male donor in both the
10

See Exh. K: February 16, 1999 Letter from Cheryl Wattley, Esq. to Smith County District
Attorneys Office.
See Davis McAuley, Plea Bargain ends 1977 capital murder trial, The Bastrop Advertiser,
February 18, 1999, attached as Exh. L.
11

16

epithelial fraction (skin cells) and the sperm fraction (sperm cells) of the seminal stain in the
crotch of the underwear. Mr. Cook was definitively excluded as the source of this DNA. Both
portions of the semen stain, however, were consistent with James Mayfield. Indeed, the profile
from the epithelial cell fraction of the semen stain yielded a profile shared by just 1 in 58.8
million Caucasian males, including Mayfield. Id. at 030-031. The DNA report was addressed to
ADA David Dobbs. Mr. Cook and his counsel were not copied on the report, and had to file
public records request to learn whether the tests were complete and receive the report. See id. at
004-007.
The report also noted that the 1A hair from buttocks (i.e., the hair previously identified
as microscopically different from Mr. Cooks and the victims) had been submitted for DNA
testing by Sgt. Eddie Clark on February 8, 1999, but that no analysis was performed on that
item. Id. at 031 (This was so notwithstanding the fact that on both February 8 and again on
February 15, 1999, DPS had confirmed that the hair was suitable for DNA analysis, reporting
that finding to prosecutors, and indicated that the DNA testing will proceed at either DPS or
the FBI laboratory. Id. at 002, 040-043, 205). On May 20, 1999, Tyler Police Officer Wayne
Thomas was sent to DPS and took possession of certain items of evidence, including the hair
from Ms. Edwards buttocks. See Exh. N: States Chain of Custody Report, filed April 27, 2012
at 066.
B. Chapter 64 Enacted and State Destroys Exculpatory Evidence
On April 1, 2001, the Texas Legislature unanimously enacted Chapter 64 of the Code of
Criminal Procedure. The new statute provided, for the first time in this States history, a
statutory vehicle through which convicted persons could seek to exonerate themselves through

17

DNA testing of evidence in the States possession.12 The Act included a separate provision
barring the State from altering or destroying any biological evidence suitable for DNA testing,
without first giving the convicted person written notice and an opportunity to be heard.13 The
statute also explicitly afforded the right to DNA testing to persons who (like Mr. Cook) were
convicted upon a plea of no contest (or even by plea of guilty), not just at trial. 14 Indeed, the
passage of Chapter 64 was preceded by the highly-publicized DNA exoneration of one innocent
defendant (Christopher Ochoa of Travis County) who had not only pled guilty to a rape-murder
he did not commit after being threatened with the death penalty, but had also given detailed (but
false) inculpatory testimony against his co-defendant at trial as part of his plea agreement.15
However, on December 5, 2001 unbeknownst to Mr. Cook or any of his counsel
unnamed Smith County official(s) authorized the permanent disposal of State exhibits held
by the Tyler Police Department from Mr. Cooks case. See Exh. N: States Chain of Custody
Report at 006. Not all of the items held by Smith County officials were destroyed, however.
Former lead homicide Det. Eddie Clark was permitted to take certain items home as souvenirs
including the knife used as the murder weapon, and a sample of Mr. Cooks hair -- during
which he performed field testing on the evidence. Id. at 088-089; see also Exh. O: Supplement
to Motion to Reconsider Denial of Motion to Recuse, filed April 30, 2012 at 19. Among the
12

Tex. Code of Crim. Proc. Ann. Art. 64.

13

See Tex. Code Crim. Proc. art. 38.43 (previously codified as Art. 38.39). The statute was
amended in subsequent years to change the minimum time periods for preservation of DNA evidence, but
its core preservation and notice requirements remained unchanged.
See Tex. Code Crim. Proc. art. 64.03(b) (A convicted person who pleaded guilty or nolo
contendere or, whether before or after conviction, made a confession or similar admission in the case may
submit a motion under this chapter, and the convicting court is prohibited from finding that identity was
not an issue in the case solely on the basis of that plea, confession, or admission, as applicable).
14

See, e.g., Mark Donald, Lethal rejection, Dallas Observer, Dec. 12, 2002 (detailing history of
Ochoa case) (available at http://www.dallasobserver.com/news/lethal-rejection-6389579).
15

18

items that was singled out for destruction, however, was the hair from Ms. Edwards buttocks
that the State had earlier submitted to the DNA laboratory, but had retrieved from the laboratory
before testing could be completed. That item was destroyed -- and a handwritten note made to
confirm its individual destruction on or about January 16, 2002. Exh. N. at 019.
The States selective, intentional destruction of this evidence would not be revealed for
another decade (see infra). At that time the evidence was destroyed, more than two years had
elapsed since the entry of Mr. Cooks no-contest plea, and no further proceedings were pending.
The only new or recent development in the case was the Legislatures enactment of Chapter 64.
Jack Skeen, who prosecuted Mr. Cook in 1992, 1994, and 1997-99, continued to hold
office as Smith Countys District Attorney during the period in 2001-2002 in which the
destruction of this evidence was authorized and carried out. Mr. Skeen was appointed Judge
of the 241st District Court for Smith County by then-Gov. Perry on October 28, 2003.
A. DNA Testing of Remaining Evidence Under Chapter 64
1. Motions for DNA Testing by Mr. Cook -- and by the State
On February 28, 2012, represented by new, pro bono co-counsel, Mr. Cook filed a
motion for post-conviction DNA testing under Chapter 64 of the Code of Criminal Procedure. In
the motion, he requested that the State provide a complete inventory of all as-yet-untested items
of evidence from the crime scene which may contain the killers DNA profile. In particular, he
asked the Court to determine whether the bloody hair found on Ms. Edwards buttocks (which
was previously analyzed under a microscope and found not to be Mr. Cooks), as well as the
bloody knife used as the murder weapon, were available for DNA testing and comparison to
James Mayfield, and to order such testing if those items still existed and had been subject to a

19

secure chain of custody. See Exh. P: Motion for Post-Conviction Forensic DNA Testing, filed
February 28, 2012 at 19-21.
Because former DA Skeen was now the presiding Judge of the 241st District Court (i.e.,
the Court in which Mr. Cook was convicted and where the Motion would be heard), Mr. Cook
moved to recuse Judge Skeen. The motion was orally granted on March 9, 2012, by the Hon.
John Ovard. Given the history and nature of the case, Judge Ovard personally retained
jurisdiction of the Motion to determine what evidence was suitable for testing under the Act,
including presiding over a hearing on the motion and entering a subsequent, detailed order for
testing on Mr. Cooks behalf on May 4, 2012. (After Mr. Cooks motion was granted, Judge
Ovard thereafter held that jurisdiction of any remaining, ancillary matters pertaining to DNA
testing should be handled by Judge Christi Kennedy of the 114th District Court for Smith County;
this was done pursuant to a standing order (entered in 2003) in which all of the criminal cases in
which former-ADA Skeen was subject to recusal were automatically redirected to Judge
Kennedy.16)
The State, through now-District Attorney Matt Bingham and ADA Michael West,
submitted its required Chain of Custody Report on April 27, 2012. In that Report, it revealed,
for the first time, that certain items of evidence (including the exclusionary hair evidence) had
been singled out for destruction by Smith County officials in 2001. (The paperwork authorizing
Tyler Police to destroy the evidence referenced a separate attachment for DA Case Info, but
that document has not been provided to Mr. Cook, despite numerous requests.) It also disclosed
16

At that time, Judge Ovard determined that Judge Kennedy need not be recused from presiding
over Mr. Cooks unopposed DNA testing motion. However, he did not consider or decide whether
recusal of Judge Kennedy would be appropriate if and when Mr. Cook filed a contested application for a
writ of habeas corpus based on the results of such DNA testing, misconduct by State officials, or other
grounds. See Applicant Kerry Max Cooks Motion to Recuse Judge Christi Kennedy (filed
contemporaneously herewith) for a discussion of the recusal proceedings surrounding Mr. Cooks
unopposed Chapter 64 motion).

20

that former Sgt. Eddie Clark had been permitted, at that time, to take home the murder weapon (a
bloody knife) and a sample of Mr. Cooks hair, with no explanation as to how or why this was
authorized -- other than a cryptic affidavit from Sgt. Clark that he had (remarkably) not only
stored these items at his home, but that during the time that the physical evidence was in [his]
custody, conducted unspecified field [and] laboratory testing procedures on these items. Sgt.
Clark gave no indication as to why or how he came to perform this testing, what was involved,
or what the results might have been; he sought to reassure the Court, however, that he had left
the evidence in essentially the same condition as received. See Exh. N at 088-089.
In response, Mr. Cook noted that he had no objection to testing any and all probative
items of DNA evidence that had been held in the secure custody of the SWIFS or DPS
laboratories. However, in light of the States extraordinary disclosures about the selective
destruction of evidence, and the unilateral, post-conviction field testing of the evidence by at
least one law enforcement officer, he requested a hearing to determine whether Ch. 64s chain of
custody requirement had been satisfied as to the items still held by Smith County officials, and
the circumstances under which the other items had allegedly been destroyed. See Exh. Q:
Movants Response to District Attorneys List of Evidence and Chain of Custody Report, filed
May 1, 2012. The State opposed Mr. Cooks request for a hearing, arguing that the Court lacked
jurisdiction to hold one until after DNA testing was conducted. See Exh. R: States Response,
filed May 8, 2012.
Ultimately, Judge Ovard entered an order prepared by Mr. Cook granting testing under
Ch. 64 on the items of evidence as to which the parties were in agreement (i.e., those securely
held by the labs). These included, inter alia, the remaining material from the victims torn and
semen-stained underwear; stains and a hair from the victims bra; swabs of apparent blood from

21

a broken glass terrarium lid from the scene; and swabs from the knife. In the Order, the Court
found that Ch. 64s requirements were all satisfied, including that Mr. Cook would not have
been convicted if exculpatory results had been obtained through DNA testing in 1999. See Exh.
S: Order for DNA Testing, filed May 7, 2012.
On December 27, 2012, the State filed a proposed DNA testing order of its own before
Judge Kennedy, seeking to test additional items held by Smith County officials including, in
particular, the knife found at the scene (and thereafter held in Sgt. Clarks personal possession).
In response, Mr. Cook indicated that he could take no informed position as to whether such
testing would yield probative or reliable evidence unless the Court first held an evidentiary
hearing; he outlined a host of specific questions and concerns raised, but not answered, by the
Chain of Custody report submitted to date. See Exh. T: Kerry Max Cooks Response to District
Attorneys Proposed Order for DNA Testing, filed December 28, 2012. The District Attorney
seized on Mr. Cooks request for a chain of custody hearing as evidence of his alleged
consciousness of guilt charging that Mr. Cook was seeking to slither his way into an
exoneration by asking for testing on evidence in his initial motion (according to the States
allegations, but entirely without basis) he in fact had hoped would be destroyed. The State
asserted that Mr. Cook was avoid[ing] testing, not out of any legitimate concern over the
knifes chain of custody or how it was handled by Sgt. Clark, but only because he feared the
results would inculpate him baldly asserting, Mr. Cook isnt the least bit interested in the truth
and is fearful, for good reason no doubt, that his DNA may be found on a murder weapon that he
hoped would be destroyed long ago. See Exh. U: States Response to Motion to Correct
Inventory and Vacate Testing Order, filed April 5, 2013 at 3,10.

22

On February 12, 2013, Judge Kennedy granted the States motion for testing under
Chapter 64 and signed its proposed order without a hearing. Under the separate Orders
submitted by both parties, each round of testing was conducted at the Cellmark Forensics
laboratory outside of Dallas, an independent, fully-accredited forensics laboratory.
2. DNA Test Results Again Exclude Mr. Cook and Inculpate Mayfield
The results of Cellmarks post-conviction DNA testing were set forth in five separate
DNA reports (three on the items submitted by Mr. Cook, and two on the items requested by the
State) issued between April 2013 and March 2015 . The reports reflect that Cellmark received
and examined over three dozen items and conducted extensive Short Tandem Repeat (STR)
DNA testing on numerous individual samples collected from Ms. Edwards corpse and the crime
scene. The testing also included several rounds of Y-STR (Y-chromosome or Y-Filer) DNA
testing, a highly advanced method developed years after Mr. Cooks trial that is used to isolate
and detect traces of male-specific DNA in a potential male-female mixture where the males
contribution might otherwise elude detection. See Exh. V through Z: Cellmark Lab Reports
(dated April 18, 2013 through March 4, 2015).
Ultimately, none of Cellmarks tests yielded any of Mr. Cooks DNA, on any item of
evidence. He was definitively excluded even from the smallest, partial profile(s) obtained
using these state-of-the-art technologies from every single item for which results suitable for
interpretation and comparison to his known profile were obtained. This included cuttings from
the victims stained underwear, jeans, and bra; bloody swabs and cigarette butts from throughout
the scene; and the apparent murder weapon (knife) that the State had so vigorously sought to test,
in the hope/expectation that the results would inculpate Mr. Cook.17
See id. The vast majority of samples tested yielded only female DNA (most i.e., the bloody
items -- presumptively from Ms. Edwards, although Cellmark was not provided with a new reference
17

23

The testing did, however, yield the near-complete DNA profile of another man: James
Mayfield. Cellmark tested all of the remaining fabric cutting that SWIFS had preserved from the
victims 38-year-old pair of underwear. Once again, the laboratory found epithelial cells and
sperm cells fully consistent with Mayfields DNA profile that were mixed with the victims own
DNA on the crotch of her underwear. This time, however, the results were even more robust -and dispositive of Mayfields identity as the semen donor -- than DPS obtained fifteen years ago
with the more limited technology then available. Cellmark was able to obtain more than twice as
many identifiable DNA markers (alleles) from the male donor (Mayfield) in both the
epithelial and sperm cell fractions of the seminal stain than did DPS. 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
one such individual out of the entire current population of the Earth.18
This Application for a Writ of Habeas Corpus follows.

GROUNDS FOR HABEAS CORPUS RELIEF

Although Mr. Cook was sentenced to time served in accordance with his 1999 nolo
contendere plea, and is not presently in custody, he is confined within the meaning of the
statute and fully eligible to seek habeas corpus relief under art. 11.07 and 11.073 because he
continues to suffer adverse collateral consequences from his conviction. See Ex Parte Harrison,
310 S.W.3d 453 (Tex. Crim. App. 2010). These include, inter alia, restrictions on his right to
sample from her). The swabbing of the stain from the knife yielded a small trace of male DNA from an
unknown source or source(s) (with results at only 4 out of a possible 17 DNA loci), but it was not Mr.
Cooks DNA (nor Mayfields).
18

See id. By contrast, DPS obtained such a partial male profile in the sperm fraction in 1999 that,
although it was deemed to be consistent with Mayfield (and clearly excluded Mr. Cook), the lab was
unable to calculate any population-frequency statistic for it; and the epithelial cell fraction statistic was
estimated to be 1 in 58.8 million Caucasians).

24

vote, possess firearms, hold public office, and secure employment and housing, as well as the
stigma of standing convicted of a murder he did not commit. See id. at 455-56.
The legal and factual grounds upon which relief should be granted, after further discovery
and an evidentiary hearing, are as follows:

GROUND ONE
Kerry Max Cook is actually innocent of the rape and murder of Linda Jo Edwards.

ARGUMENT

I.

Legal Authority
Texas courts have led the country in the recognition that the due process clause prohibits

imposing criminal punishment on a person who is innocent. In Ex parte Elizondo, 947 S.W.2d
202 (Tex. Crim. App. 1996), the CCA became one of the first state high courts in the nation to
build upon the U.S. Supreme Courts reasoning in Herrera v. Collins, 506 U.S. 390 (1993) and
hold that freestanding claims of actual innocence (that is, claims based solely on evidence of
innocence, without any other constitutional error) are cognizable in a state writ proceeding.
To merit relief under Elizondo, an applicant must show that the record unquestionably
establish[es] his innocence. See id. at 209 (internal citations omitted). However, the CCA
has made clear that this test does not require an applicant to show that the States evidence is
legally insufficient to sustain a conviction; the Court considered, but then specifically declined
to adopt, a standard of relief under which an applicant would be required to show that a jury
could not have convicted him beyond a reasonable doubt. See id. at 205-07, 209
(reject[ing] the implication . . . that confidence in the verdict is only undermined when newlydiscovered evidence renders the States case legally or constitutionally insufficient for
25

conviction); see also Ex parte Thompson, 153 S.W.3d 416, 429 (Tex. Crim. App. 2005)
(Cochran, J., concurring) (in evaluating an innocence claim pursuant to Elizondo, the issue is
not whether the newly discovered evidence has rebutted every jot and tittle of the original
inculpatory evidence). Instead, the test is whether a new jury -- with the benefit of hearing
both the States evidence and the Applicants exculpatory evidence, both new and old -- would
be satisfied that the State has met its burden of proving the applicants guilt (that is, whether a
reasonable juror would have reasonable doubt about guilt). If a convicted person
demonstrates by clear and convincing evidence that no reasonable juror would have convicted
him in light of the new evidence, he is entitled to relief. Elizondo, 947 S.W.2d at 209. This is
a similar approach to the one taken by the U.S. Supreme Court in evaluating DNA-based
claims under the Schlup v. Delo actual innocence gateway standard in federal habeas, from
which the Elizondo Court adopted its no reasonable juror test. (Indeed, in one post-Schlup
case (House v. Bell, 547 U.S. 518 (2006)), the U.S. Supreme Court found this demanding test
was met based in large part on new DNA evidence highly similar to that presented here.) 19
In 2002, the CCA proceeded to hold that Elizondo relief is equally available to persons
who are convicted by plea of guilty or nolo contendere. See Ex Parte Tuley, 109 S.W.3d 388,
390-91 (Tex. Crim. App. 2003). In Tuley, the Court recognized that [t]he guilty plea process
is not perfect and that [t]he decision to plead guilty, as we have seen in this case, may be
19

In House, 547 U.S. at 552-54, the Supreme Court reversed and remanded a capital murder case
based on combination of new DNA and non-DNA evidence, after finding that no reasonable juror
would have convicted House, after new DNA excluded House and identified the victims husband
(the original alternate suspect) as source of semen on victims nightgown that she wore on the night of
her murder. (The test for relief applied in House is the one adopted by the Court in Schlup v. Delo,
513 U.S. 298 (1995), the same one adopted by the Elizondo court.) In House, the Court emphasized that
relief was warranted even though the new DNA alone was not dispositive of the perpetrators identity,
and even though some of States remaining evidence could still support an inference of guilt against
House. However, because the record as a whole, including the new DNA, raised a reasonable doubt as
to whether the victims husband, rather than House, committed the murder, relief was required. See id.
at 553-54. House was granted relief on remand, and his indictment was thereafter dismissed.

26

influenced by factors that have nothing to do with the defendants guilt -- such as a
reasonable assessment by the applicant that, despite his factual innocence, he has an inability
to disprove the States case based on the resources and evidence available to him. Id. at 393.
In Tuley, as in Mr. Cooks case, a divided jury had been unable to reach a verdict at a prior
trial, but the applicant made what the Court found to be a rational decision to plead guilty out
of fear of wrongful conviction at retrial. Unlike Mr. Cook, however, who pled no contest
and made no admission of guilt to crimes he did not commit (and specifically rejected such a
plea offer, even at risk of returning to death row), applicant Tuley had pled guilty, and as part
of his plea, had sworn under oath to the convicting court under oath that he had committed the
sexual assault at issue. And unlike in Mr. Cooks case, the new evidence in Tuley included no
DNA or other forensic evidence, nor any evidence inculpating the real perpetrator -- but
consisted instead of a sworn affidavit in support of a recantation by the original complainant.
Nonetheless, after weighing the evidence from the [hung jury] trial, the applicants guilty
plea, the applicants stated reasons for pleading guilty, and the newly discovered evidence,
the Court concluded that the exculpatory evidence cited by Tuley was more credible than the
testimony at trial that was presented by the State; this, the Court found, would lead any
rational jury to find that the State had not met its burden of proof. Id. at 397.
Since Elizondo and Tuley, the Court has granted relief in a broad range of cases based
in whole or in part on new DNA evidence that was not previously available to the jury and/or
convicting court. These include cases in which new DNA pointed to an alternate perpetrator,
even if some of the States original inculpatory evidence (such as identification by one or more
witnesses, or suspicious behavior by the defendant) remained intact, as well as cases in which
DNA testing undermined the applicants earlier guilty plea. For example, in Ex Parte Karage,

27

2005 WL 2374440 (Tex. Crim. App. Sept. 28, 2005) (not designated for publication), the Court
granted habeas relief to a petitioner who was convicted of the murder of his girlfriend,
allegedly committed in a jealous rage. At Mr. Karages trial, the evidence included numerous
allegations of prior domestic violence by Mr. Karage against the victim; his highly
contradictory statements to police about his alibi; his death threats against both the victim and
another boyfriend of hers; and blood found on the defendants clothes and in his vehicle. State
v. Karage, 1999 WL 454638, at *1, 5, 6 (Tex. App. San Antonio Jul. 7, 1999) (not designated
for publication). After conviction, sperm samples from the victim were re-tested and matched
to a man with a prior conviction for rape. Despite the other circumstantial evidence against Mr.
Karage which was unchanged by the DNA results, the identification of another possible
perpetrator led the CCA to grant relief under Elizondo. See also Ex Parte Moon, 2005 WL
767819 (not designated for publication) (granting Elizondo relief on two counts of aggravated
sexual assault based on newly-discovered DNA evidence excluding applicant as source of
semen on victims bathrobe, despite the fact that several other victims in rape cases with a
similar modus operandi had also identified Moon; Ex Parte Phillips, 2008 WL 44172
(Tex. Crim. App. Oct. 1, 2008) (not designated for publication) (applying Elizondo to grant
relief from multiple sexual assault convictions to which petitioner had pled guilty, based on
DNA exclusion on rape kit evidence in one of the incidents); Ex Parte Henton, 2006 WL
362331, No. AP-75344 (Tex. Crim. App. 2006) (actual innocence finding based on DNA
evidence after guilty plea, where seminal fluid from sexual assault victim excluded Henton).
Further support for Mr. Cooks actual innocence claim may be found in the many cases in
which Texas courts have specifically found that DNA testing on the underwear or other clothing
from a sexual assault victim to be highly probative evidence either to demonstrate the

28

innocence of a convicted person, inculpate a suspect (or convicted defendant), or both. See, e.g.,
Blacklock v. State, 235 S.W.3d 231 (Tex. Crim. App. 2007) (ordering DNA testing of semen
found on victim's underwear); Roberson v. State, 16 S.W.3d 156 (Tex. App. - Austin 2000)
(finding evidence sufficient to support conviction based on DNA found on victim's clothing);
Conlin v. State, 2007 WL 5101236 (Tex. App. - Beaumont 2008) (not designated for publication)
(denying further DNA testing since DNA from sperm cell fraction of stain on victim's underwear
already matched the defendant); State v. Lee, 2006 WL 1350226 (Tex. App. - Waco 2006), pdr.
ref'd. (ordering DNA testing; finding that defendant established by a preponderance of evidence
that he would not have been convicted of sexual assault if excluded from semen on vaginal
specimens, underwear, and/or bedsheets); Critchley v. State, 2001 WL 1583662 (Tex. App. Austin 2001) (not designated for publication) (DNA analysis linked semen stains found on
victim's panties to defendant in sexual assault case); Pena-Ruiz v. State, 2002 WL 437283 (Tex.
App. - Houston [1st Dist.] 2002) (not designated for publication) (defendant's DNA found on
victim's underwear). In part because of the CCAs repeated application of Elizondo to grant
actual-innocence relief based on post-conviction DNA test results, Texas leads the nation in
DNA exonerations, with 52 such exonerations to date. See Innocence Project, The Cases:
Exonerated by DNA, available at http://innocenceproject.org/cases-false-imprisonment/frontpage#c10=published&b_start=0&c4=Exonerated+by+DNA&c5=TX.
II.

Facts Establishing Actual Innocence

Mr. Cooks claim for relief based on newly discovered evidence of actual innocence is

simple: the new DNA testing is the final piece of evidence both scientific and unassailable in
a voluminous record that implicates James Mayfield in the murder of Linda Jo Edwards. That
record includes a wealth of evidence that Mayfield was present at the scene, had both motive and

29

opportunity to kill Ms. Edwards, and engaged in bizarre and suspicious behavior before and after
the murder. By contrast, there has never been any probative, truthful evidence that Mr. Cook
committed this horrific crime. What little evidence the State offered against Mr. Cook from
the outset of this case has since been contradicted by its own witnesses prior statements, by
contrary evidence suppressed by the State, or both; for that reason, each of Mr. Cooks three
previous trials ended with a hung jury or reversal by the CCA.
Were the jury to hear the case today, it would learn for the first time that Mayfield not
Mr. Cook turned out to be the actual source of the semen on the underwear torn from Ms.
Edwards body by her killer. The State has already conceded the significance of this DNA
evidence, by halting the proceedings on the eve of Mr. Cooks fourth trial in order to test a
semen stain that, in ADA Dobbss own words, could only have been left by the killer.
Moreover, Mayfields credibility (including his false protestations of innocence, and denial of
any ill will towards Ms. Edwards after she ruined his career and told him, the day before her
murder, that she was dating other men) would be dramatically impeached at retrial in light of the
new DNA evidence -- since Mayfield had already testified at least three times, under oath, he had
not had sexual contact with Ms. Edwards for nearly three weeks prior to her death.
Were that not enough, todays jury would also learn that (1) despite the indisputably
violent and intimate nature of this crime, not a single item of evidence at the scene tested by
either party using todays state-of-the-art methodology including the alleged murder weapon
yielded any DNA from Mr. Cook; and (2) that the State, after insisting that DNA testing on a
bloody hair from the victims buttocks was so significant that it justified a last-minute delay in
commencing Mr. Cooks fourth trial, proceeded to halt testing on, and then intentionally
destroyed, that very evidence. The jury would also hear that the State destroyed this evidence

30

only after it learned that (contrary to Mayfields counsels erroneous predictions) the DNA
testing on the victims underwear had exculpated Mr. Cook and inculpated Mayfield -- and even
then, only after the Legislature finally made it possible for Mr. Cook to himself obtain a postconviction DNA test on the hair and compare it to Mayfields. See Kyles v. Whitley, 514 U.S.
419, 445 (1995) (noting that evidence undermining the thoroughness and even the good faith of
the [states] investigation is admissible in murder defense, and may be highly material).
For all of these reasons, the present record contains more than sufficient evidence from
which a jury could (and surely would) convict James Mayfield of the murder of Linda Jo
Edwards. By definition, then, it clearly establishes that no reasonable juror would find,
beyond a reasonable doubt, that Mr. Cook is guilty. As such, the actual innocence test of
Elizondo and Tuley is readily satisfied.
A. Ms. Edwards Long Affair With Mayfield, and Her Brutal Murder
Linda Jo Edwards was brutally murdered in her apartment on the night of June 9, 1977.
Her body was discovered on the floor of her bedroom by her roommate, Paula Rudolph, on the
morning of June 10th, after Ms. Rudolph noticed that the patio gate was open and went to check
on Ms. Edwards. She found Ms. Edwards on her back next to her bed, naked except for her
blouse. A pair of jeans was on the ironing board, and the iron was still on. The television in Ms.
Edwards room was on with the volume turned down. Ms. Edwardss bra had been cut in the
front. In addition, her underwear had been cut from her body and were lying directly next to her
corpse.20

20

See Exh. AA: Criminal Offense Report Prepared by Texas Ranger Stuart Dowell, June 13,

1977.

31

The crime was an exceptionally vicious one: Ms. Edwards was struck in the head with a
statue (to such an extent that her face was badly disfigured), stabbed repeatedly, and her genital
area was cut and mutilated.21
For approximately eighteen months before her death, Ms. Edwards had been involved in
an extramarital affair with James Mayfield. Mr. Mayfield was, until one week prior to Ms.
Edwardss death, the Dean of Library Services at the Texas Eastern University (now UT-Tyler),
where he had hired 21-year-old Ms. Edwards as a secretary in his division. In addition to being
married with three children, at 44 years old, Mayfield was more than two decades older than Ms.
Edwards. During the course of their affair, Mayfield went so far as to move Ms. Edwards into
his family home for over six months (on the pretense of providing her with temporary
accommodations, after Ms. Edwards separated from her own husband), and where
unbeknownst to his wife and children -- he continued his sexual relationship with her. See Exh.
B: Appellants Opening Brief at 201.
The month directly prior to Ms. Edwards death was a particularly tumultuous one. On
May 14, 1977, Mayfield left his wife for Ms. Edwards, and signed a lease on an apartment in the
Embarcadero Complex (the same building where Ms. Edwards would be killed four weeks later).
He did not tell his wife of more than twenty years that he was leaving her for another woman,
nor did he tell his children; instead, he simply packed up and moved. Then, just four days later,
on his wifes birthday (May 19, 1997), Mayfield changed his mind and announced to Ms.
Edwards that he was ending their affair and returning to his family.

Equally if not more

strangely, on that same day, Mayfield also filed court papers seeking a divorce from his wife. Id.
The day after Mayfield moved back to his family home, Ms. Edwards was so distraught
she attempted to commit suicide. 22 Mayfield was the one who discovered her; rather than
21

See Cook, 940 S.W.2d 623, 625 (1996).

32

reporting for work that day, he had taken the day off, and came by the apartment to make sure
that Ms. Edwards was all right and that she had gone to work. 1992 T.T.VI.173. There, he
found her unconscious from an apparent pill overdose, with a suicide note beside her. Rather
than call an ambulance, however, Mayfield quietly took her to the hospital. He then not only
failed to tell police that she had left a suicide note, but destroyed it. See id. at 173-74, 222-23.
Despite Mayfields efforts to conceal the affair from their colleagues and from his wife,
however, Ms. Edwards suicide attempt quickly made it public. As a result, Mayfield was
summoned to the office of the Universitys president and forced to resign. See Exh. B at 202.
His resignation was accepted on June 6, 1977 three days before Ms. Edwards murder.
Mayfield was devastated by the loss of his academic position, and openly blamed his former
lover for destroying his career. Id. at 205. .
After being discharged from the hospital, Ms. Edwards moved into the apartment of her
friend Paula Rudolph, who also lived in the Embarcadero apartments. Ms. Rudolph was also a
fellow employee in the Library Services Division at the university and (like Ms. Edwards)
reported directly to Mayfield while he was Dean. Id. at 202.
Mayfields birthday was two days after his forced resignation from the University, on
June 8, 1977. He visited Ms. Edwards several times that day. Indeed, in the twenty-four hours
preceding her death, the two met up on at least four separate occasions. Id.
Mr. Mayfields accounts of the nature and number of these visits would change over the
years as he was subject to cross-examination and impeachment. See 1994 TT.XXIV.1230. He
admitted to a continued attraction to Ms. Edwards and to having kissed her (or, as he put it,
necked with her) two days prior to her death. Mayfield always was adamant, however, that
22

Mayfield testified that upon returning to his wife on her birthday, May 19, 1977 - approximately
three weeks before the murder - he agreed to end his sexual relationship with Ms. Edwards. See Exh. B at
201.

33

after he vacated their shared apartment to reconcile with his wife in mid-May, he had no further
sexual relations with Ms. Edwards. Instead, he swore that he had become merely a friend and
father figure to his former lover, and that his only agenda was to help her move on with her life
after their affair ended. See id. at 1233.
Ms. Edwards did, in fact, appear to be starting to move on. Having left the university
after her suicide attempt and affair became public, she had just obtained a new job at a local
bank. She began to seem upbeat and talked of beginning a whole new life. See Exh. BB:
Affidavit of Dr. Andrew Szarka dated 11/12/91.
Then, on June 9, 1977 the day after Mayfields birthday, and three days after he was
forced to resign from his prestigious job at the University Ms. Edwards agreed to meet
Mayfield for lunch. At that time, she informed him about her new job; she also told him, for the
first time, that she intended to date other men. Ms. Edwards recounted this conversation to her
friends Andrew and Tamara Szarka that same evening. Mr. Szarka was a faculty member at the
University, where he had come to know both Ms. Edwards and Mayfield well; he and his wife
were also neighbors of the Mayfields. Ms. Edwards told the Szarkas how far from being
supportive Mayfield had become very upset when she told him she was going to start dating
again. 1994 TT.VXXVII.2161.
Ms. Edwards left the Szarkas in the early evening, telling them she was going to stop by
Mayfields home on the way. She made clear to her friends, however, that her romance with
Mayfield was over. See Szarka Aff. at 2.
At approximately 9:30 pm., Ms. Edwards arrived back at the Embarcadero apartment
complex. She met up with four friends (Orlando and Alma Padron, Greg Smith, and David
Zink) at the tennis courts; the group then went to the Padrons apartment for drinks. Both Mr.

34

and Mrs. Padron testified that Linda who had just come from the Mayfields home appeared
nervous and apprehensive. 1994 TT.VIII.2173.
She left the Padrons between 10:20 to 10:25. Arriving back at her apartment, she spoke
briefly with her roommate, Paula Rudolph, who was about to go meet a friend at a local hotel.
Ms. Edwards remained at the apartment. She would not live to see another day. Id. at 2176.
B. Victims Roommate Sees and Immediately Identifies the Killer
Ms. Rudolph returned home shortly after 12:30 a.m. See Exh. B at 203. 23 After opening
the door, she saw a man standing in the open doorway of Ms. Edwardss room. (There is, and
has never been, any dispute that the man Ms. Rudolph saw was Ms. Edwards killer.) Ms.
Rudolph would tell the police the next day, and numerous other witnesses in the days that
followed, that she immediately recognized the man she saw as James Mayfield -- who was not
only the victims married ex-boyfriend, but was (until his recent firing) Ms. Rudolphs own
supervisor at the University. See, e.g., 1994 TT.XXVII.2198 (in numerous discussions with coworker Olene Harned, after the murder Ms. Rudolph always and repeatedly stated, I thought
it was Jim Mayfield); id. at 2572 (when asked by apartment manager whether she was scared
to death when she came home late at night and saw man standing in victims bedroom, Ms.
Rudolph responded, No. I knew him. It was Mayfield.)
Ms. Rudolph decided not to disturb the couple because it was a delicate situation, even
though she was extremely wary of their off-again, on-again relationship, particularly after Ms.
Edwards recent suicide attempt. She remembered thinking to herself, That S.O.B., cant he
Notably, Ms. Rudolphs initial statement said that she observed the killer in the apartment at
12:30 a.m. a time frame that would have made it impossible for Mr. Cook to have been the killer under
the States own timeline, since States witness Robert Hoehn testified that he did not drop off Mr. Cook at
the apartment complex until 12:30 a.m. after they went to buy cigarettes. By the time of trial, however,
Ms. Rudolph had changed her account, and estimated that she may have seen the killer as late as 12:45
a.m. See Cook, 940 S.W.2d at 625; 1978 TT.III.477.
23

35

leave her alone?24 Indeed, so certain was Ms. Rudolph that the man she saw was Mayfield that
she did not check on Ms. Edwards, but simply called out, Dont worry, its only me, and went
to bed. See 1994 TT XXIX.2588.
The next day, Ms. Rudolph gave police a detailed description of the killers physique,
hair, and clothing one that perfectly matched Mayfield. She reported (and would later restate
in sworn testimony) that the man was Caucasian, with a golden tan; that his build was sleek and
slender; that he wore white shorts; and that he had silver hair, which was cut in a medium,
touching-the-ears fashion. See Exh. B at 203-204. As numerous witnesses attested, Mayfield (a
fitness buff and avid tennis and racquetball player) was trim and very fit; had a full head of
silver-grey hair, cut in the exact same style that Ms. Rudolph described; and frequently wore
white tennis shorts. By contrast, Mr. Cook looked nothing like the man Ms. Rudolph saw. In
June 1977, Mr. Cook had extremely dark hair (described by some as black, and by one witness
as brown like a Mexican), which he wore long (to his shoulders). See 1994 TT.XXXI.2746.
Ultimately, more than a year after Mr. Cook was charged with the crime, Ms. Rudolph
would claim that he not Mayfield was the man she saw. Yet this testimony came only after
Ms. Rudolph had testified on two prior occasions (before the grand jury, and at the examining
trial) about viewing the killer and not identify Mr. Cook, even after she saw him sitting at the
defendants table in the courtroom. Prosecutors would ultimately argue that Ms. Rudolph had
assumed (incorrectly) that Mayfield was the man she saw without viewing him closely. Even
more suspect, they argued that the silver hair Ms. Rudolph so clearly described (shared by
Mayfield, but not Mr. Cook) was an artifact of what the State called a halo effect from the
lighting conditions in the room. As Judge Clinton of the CCA observed, it was clear that the

24

See 9/19/1977 Grand Jury Transcript at 13.

36

prosecution and Rudolph fashioned her direct testimony to avoid the obvious implications of an
initial eyewitness account that described Mayfieldalmost perfectly. Cook v. State, 741
S.W.2d 928, 948-949 & 949 n.5 (Tex. Crim. App. 1987) (Clinton, J., dissenting). Further, even
assuming, arguendo, that nearly-black hair like Mr. Cooks could magically appear to be silver
due to the lighting conditions, the man whose full head of hair came to his ears that Ms. Rudolph
saw was not the long-haired Mr. Cook, since a halo effect doesnt give [a man] a haircut. See
1994 TT.XXXI.2751.
C. Mayfields Anger, Jealousy, and Motive
Mayfield was well known for his aggressive and angry temperament. He was described
by close friends as being like a volcano with a terrible temper. See Exh. CC: Affidavit of
Wanda Joyce, dated November 19, 1991. He was verbally abusive to his wife, and his son
reported that Mayfield routinely physically abused him. Id. at 2. Both Mayfields adult son,
Charles Finley, and his wifes best friend, Wanda Joyce, immediately suspected that Mayfield
murdered Ms. Edwards when they heard about her death; both were long familiar with his
explosive temper and history of violence.

See Exh. DD, Statement of Pfc. Charles Finley

(informing authorities of Mayfields violent temper, expressing view that Mayfield was
capable of such a hideous crime, and urging authorities to investigate Mayfield and ensure that
his wife and daughter were not at risk of harm); Exh. CC: Joyce Aff. at 1. His fellow Library
employees at the University shared similar views, based on their experiences with and
observations of Mayfield. See Exh. EE: Affidavit of Dana Gregory, dated 11/10/91 (recalling
common belief throughout the university that either Mayfield had committed the murder alone
or that someone had helped him do it).

37

He was deeply conflicted about the end of his relationship with Ms. Edwards. For more
than a year, he and Ms. Edwards engaged in a passionate affair, during which the 44-year-old
Mayfield successfully urged 21-year-old Ms. Edwards to lose a substantial amount of weight and
otherwise improve her appearance and style. But after abandoning his family and moving in
with Ms. Edwards, he quickly had a change of heart, complaining to his closest colleague that
Linda was too young for him, that he didnt like apartment living and missed his house
including the wife who took care of the home, and was (according to Mayfield) a better cook
than his young lover. See, e.g. Exh. FF: Affidavit of Peggy McGill, dated 11/10/91 , Exh. GG:
Affidavit of Olene Harned, dated 11/7/91 Exh. HH: Affidavit of Sophia Lenderman, dated
11/9/91. He spoke of moving to Houston to look for a new position there after he was fired, but
told his colleagues that he feared that Ms. Edwards who had family in the Houston area
would follow him there. See Exh. GG: Harned Aff. at 1.
Yet even after ending their affair, Mayfield remained highly possessive of Ms. Edwards.
For example, after an academic colleague named John Spurgin sent her flowers and visited her in
the hospital following her suicide attempt, Mayfield angrily confronted Mr. Spurgin.

He

demanded to know what they had talked about and whether Mr. Spurgin had kissed Ms.
Edwards. Mayfield became so agitated that Mr. Spurgin feared for his physical safety; indeed,
Mr. Spurgin took Mayfields rage so seriously that he went and bought a gun to protect himself.
See Exh. B at 206; 1992 TT.VIII.152.
In the days leading up to Ms. Edwards murder, Mayfield began to direct his anger
towards his former lover. He told friends that he blamed her for ruin[ing] him because her
suicide attempt had exposed their affair and gotten him fired, leaving him unemployed and
without any other academic prospects. Indeed, his anger at Ms. Edwards was so all-consuming

38

that he was unable to keep it to himself even after she was brutally murdered. On the day Ms.
Edwards body was discovered, co-worker Ann White notified Mayfield of what she had heard:
that Ms. Edwards had been found badly beaten and might not have survived. The two drove to
Ms. Edwards apartment complex and sat in a car outside, while police cars, an ambulance, and
the news media gathered. Mayfield began crying in Ms. Whites presence, but then had a
sudden mood change becoming visibly angry and bitterly complaining that [Ms.
Edwards] had ruined him, that she had cost him his job when she tried to commit suicide. Id. at
205.
Nor was Mayfield the only one in his family enraged at Ms. Edwards as a result of their
affair. After Mayfield left his wife for Ms. Edwards, his 16-year-old daughter, Louella, made
repeated death threats against [Ms. Edwards] to third parties as well as one directly to [her] just a
few days before the murder. Cook v. State, 940 S.W.2d 623 (Tex. Crim. App. 1996) at 625.
Two weeks before the murder, Louella went to the apartment complex where her father had been
living with Ms. Edwards; there, she falsely told the manager that she was an investigator with the
Tyler Police Department and that she was investigating a homicide involving Jim Mayfield and
a Linda Jo Edwards. Id.
D. Suspicious Circumstances
In addition to Mayfields explosive personality, his tumultuous relationship with the
victim, and his personal appearance matching Paula Rudolphs description of the killer, other
suspicious circumstances bolster the conclusion that James Mayfield is Ms. Edwards murderer.
Perhaps most troubling is the fact that James Mayfield ordered a graphic book for his library
regarding human sexual mutilation. Mayfield surreptitiously purchased the book for the Library
without going through the approval process; it was discovered prior to Ms. Edwards murder by

39

fellow employee Dr. Frederick Mears. Dr. Mears recalled the book clearly and was shocked
that Mayfield had ordered it. See Exh. II: Affidavit of Dr. Frederick G. Mears, dated 9/8/91;
1992 TT.VIII.96-100. That book, The Sexual Criminal A Psychoanalytical Study, by J. Paul
De River, depicts sexual homicides that are eerily similar to the murder of Ms. Edwards, with
numerous wounds that are nearly identical to those she suffered. See id.
Mayfields odd statements and behavior continued after the murder. First, a colleague
caught him surreptitiously going through Ms. Edwards desk calendar and belongings at the
University the day after the murder. See Exh. EE: Gregory Aff at 1. Then, a day or two after
Ms. Edwards body was found, Mayfield visited Dr. Mears, his former colleague and tennis
partner. See Exh. II: Affidavit of Dr. Frederick G. Mears, dated 7/10/88 at 3. Dr. Mears was
known to have conducted research in deception and polygraph science at the University.
Mayfield appeared highly distressed. Id. He told Dr. Mears that Ms. Rudolph had identified him
at the crime scene, and asked for advice on how to beat a polygraph test. See 1992
TT.VIII.102; Exh. II at 3. Former colleague Olene Harned also recalled that Mayfield told her
that he hired an attorney, but that he had failed a polygraph several times. See Exh. GG:
Harned Aff. at 3. Then, after being informed that he had been cleared as a suspect following
Cooks arrest, he told another witness, No matter how serious the trouble youre in, you can get
out of almost anything if you have enough money. See Exh. KK: Affidavit of Ann White, dated
11/7/91.
E. A Failed Investigation
Despite the mountain of evidence pointing to Mayfield, Smith County officials failed to
take basic measures to investigate his culpability. Nor did they act in a minimally competent

40

fashion to secure and process the evidence needed to identify the true killer or prevent the
wrongful conviction of an innocent man.
1. No meaningful investigation of Mayfield
The State knew from the outset of its investigation (1) that Mayfield had been the
victims lover for over 18 months, while married to someone else, (2) that he had been fired, just
days earlier, from his University deanship as a result of her suicide attempt, and (3) despite their
affair being over, he had seen the victim multiple times in the 24 hours before her murder -- the
last reported visit occurring on the night she was killed, immediately before she arrived back at
her apartment complex. Friends of Ms. Edwards who socialized with her that night told police
that she appeared nervous after returning from Mayfields home, in contrast to her upbeat
demeanor earlier that same evening. See 1994 TT.XXVIII.2173:23-24.
Mayfield told police and prosecutors that he had an alibi for the hours in which she was
believed to have been killed: he claimed to have been at home with his wife and daughter all
night. Yet police interviewed only Louella (the 16 year old daughter) to confirm the alibi
even though one of their own officers had recently documented that she was emotionally
unstable and a pathological liar. Cook v. State, 940 S.W.2d 623 (Tex. Crim. App. 1996) at
626. Louella gave consent to search her car, where investigators found a pair of wet, stained
jeans yet they never conducted any testing on the pants, later explaining that they presumed
they were simply stained with mud and were of no evidentiary value. Id. at 643-644. Nor did
police ever seek consent (much less a warrant) to search the Mayfields home, or James
Mayfields own vehicle.
Remarkably, at no time before charging Mr. Cook with capital murder in August 1977
did police ever try to speak with Mayfields wife the only other alibi witness he had offered

41

(not to mention the fact that she was also the spouse of the victims married ex-lover, giving
police ample independent grounds to want to speak with her). Nor did they speak with Mrs.
Mayfield at any time before putting Mr. Cook on trial in July 1978 and securing a death sentence
against him. It was not until fourteen years later, on the eve of Mr. Cooks 1992 retrial, that they
finally confirmed Mayfields alibi with his wife. By that time, Mrs. Mayfield stated only in
the most general terms that, to the best of her recollection, her husband was home on the night of
June 9, 1977. She could remember nothing else about that night. See 1992 TT.VII.24-25.
Like Mayfields family, numerous co-workers of James Mayfield and Linda Jo Edwards
with highly relevant information were largely ignored by investigators. As of 1991, no one from
the State had ever contacted Dana Gregory, who witnessed Mayfield leafing through Edwardss
desk after the murder. See Exh. EE: Gregory Aff. at 2. Likewise, Sophia Lenderman attested in a
1991 affidavit that she was quite surprised when no police officer ever contacted [her] for an
interview during the course of their investigation. See Exh. HH: Lenderman Aff. at 2. That
same held true for Olene Harned and Peggy McGill, who police failed to interview in the days
following Edwardss brutal murder; Harned was Mayfields closest confidant in their division,
and knew many of the details about his affair with Ms. Edwards and anger towards her after it
ended. See, e.g., Exh. GG: Harned Aff. at 4, Exh. FF: McGill Aff. at 2.
2. Physical evidence mishandled and manipulated
The flawed investigation was not limited to a failure to investigate Mayfield. Police and
prosecutors, as part of their rush to judgment against Mr. Cook, (1) mishandled the physical
evidence from Ms. Edwards murder in a manner that can only be described as incompetent, and

42

(2) offered wildly speculative assertions against Mr. Cook at trial that were not based on any
reasonable (or, at times, honest) appraisal of the forensic evidence in the case. For example: 25

Police failed to locate the bloody knife used to murder Ms. Edwards, despite the fact that
it was in her bedroom closet, a mere five feet from her body. The weapon was later
discovered by the father of the victims roommate, rather than police. See 1992
TT.II.73;75.

A substantial amount of blood at the scene was never preserved or submitted for testing
because one of the lead investigators (Doug Collard the same analyst who gave the
erroneous fingerprint testimony, discussed supra 26) assumed it was all from the same
person since "it was all the same general color:"27

Prosecutors vehemently argued at Mr. Cooks first trial in 1978, and his retrial in 1992,
that the perpetrator cut away the victims lip and vagina and took those body parts as
souvenirs specifically arguing that he had carried those items away in a stocking that
was missing from the crime scene. Yet no mention of missing body parts is noted in
the autopsy report (indeed, as the expert testimony demonstrated at Mr. Cooks 1992
retrial, the injuries she sustained are consistent with mutilation, not cutting and removal).
Moreover, this unfounded speculation was flatly disproven when the allegedly missing
stocking was found by jurors in the pant leg of the victims jeans when the jurors
examined the physical evidence during deliberations in Mr. Cooks 1992 retrial (which
ended in a hung jury, with six jurors voting to acquit). Cook v. State, 940 S.W.2d 623,
(Tex. Crim. App. 1996) at 636-637; Exh. B at 25-27.

By the time of Mr. Cooks retrials, several items of exculpatory evidence previously
suppressed by the State had come to light (including that numerous State witnesses had
independently confirmed that the victim had invited Mr. Cook to her apartment a few
days prior to her death, and that Lt. Collard had disavowed his prior testimony regarding
the alleged 6-12 hour time of deposit of Mr. Cooks fingerprint). Both of these

See David Hanners, Clues Not Pursued in Slaying: Tyler Police Work 'Sloppily Done,'Dallas
Morning News, July 3, 1988, attached as Exh. LL, for a further discussion of the mishandling of the
investigation.
25

26

As noted above, based on false testimony that he had the ability to "age" fingerprints (fixing the
precise time frame of deposit), on February 26, 1989 a formal complaint was filed against Collard with
the International Association for Identification ("IAI"), which Collard agreed on cross examination during
Cook's 1992 retrial was "the premier organization that fingerprint experts belong to . . ." In his response to
the complaint filed with the IAI, Collard repeatedly stated that his "opinion" about the age of a fingerprint
could not be supported in any positive or scientific manner. Collard also conceded that he should never
have testified to this opinion in the first instance and he did so only at the behest of Smith Countys thenDistrict Attorney, A.D. Clark III.
27

See 1992 TT.II.122. Collard later conceded that this assumption was erroneous, but it was too
late to remedy as he had already failed to preserve and retain the blood evidence. Id.

43

revelations vitiated the States argument that Mr. Cook had deposited his fingerprint
during the murder, since the jurors could reasonably find otherwise (particularly since it
was on the outside of the door, and he lived in that same complex). Rather than abandon
this contention, however, the State presented new and equally-flawed testimony by Lt.
Collard that, in his opinion, Mr. Cooks print was extremely fresh when recovered
which was also entirely without scientific basis. See Exh. B at 108-110.
These are, sadly, just a few examples of the States complacency towards its truth-finding
duty, and the illicit manipulation of the evidence on the part of the State which permeated the
entire investigation of the murder. See Cook v. State, 940 S.W.2d 623 (Tex. Crim. App. 1996) at
637-638.
3. Presentation of false/unreliable witness testimony
Finally, Mr. Cooks prosecution was also marred by the States reliance on witness
testimony that prosecutors knew, or should have known, was false. For example, by the time of
Mr. Cooks third trial in 1994, the exculpatory evidence discovered by Mr. Cooks new legal
team meant that the State could no longer present (or effectively rely) on much of the false
evidence it had used to convict him in 1978 (i.e., the false claims of jailhouse inmate Shyster
Jackson (which he had wholly recanted) or the testimony of the Dykes brothers regarding Mr.
Cooks alleged conduct on the night in question (which had been impeached by their grand jury
transcripts and subsequent admissions)). The State also lacked any physical evidence from the
crime scene, Mr. Cooks person, or his residence that in any way inculpated him. Lacking any
credible, objective evidence to support its reprosecution, however, the State announced in 1992
that it had a brand-new witness against Mr. Cook: former Smith County reserve deputy sheriff
Robert Wickham. Wickham now claimed that more than a decade earlier, while escorting Mr.
Cook in a courthouse elevator at his 1978 trial, Mr. Cook spontaneously told him, I killed [the
victim] and I dont give a shit what they do to me. Wickham made this remarkable claim for
the first time in 1991. He told no one about this alleged confession for over thirteen years -44

even though, at the time Mr. Cook was in his custody, Wickham was a member of Smith County
law enforcement, and Mr. Cooks was the most notorious capital case in County history. See
Exh. B at 104-108. The questionable veracity of Wickhams testimony was obvious.28 And the
fact that Mr. Skeen and Mr. Dobbs saw fit to present it at Mr. Cooks retrial is yet another a
powerful indication of how weak the States case had become.
Even more critical to the States case, of course, was the testimony of James Mayfield.
Mayfield denied murdering Ms. Edwards, and insisted that the last time he had seen her alive
was in the early evening on June 9, 1977 (hours before her body was found), when she came by
his home and visited briefly with both him and his wife. See 1992 TT.VI.207-208; Exh. MM:
1978 Deposition of James Mayfield, February 1, 1978 at 45. From his pretrial meetings with
prosecutors, as well as his repeated cross-examination by Cooks counsel, Mayfield was well
aware that Mr. Cooks defense turned on a claim that Mayfield had continued to both harbor and
act on his passionate feelings for Ms. Edwards until the day she died specifically, that he had
killed her in a fit of rage after she attempted suicide (leading to the end of his University career),
and then proceeded to tell him she was starting to date other men. Mayfield not only denied
murdering Ms. Edwards, however. Instead, he gave an elaborate account of how his relationship
with Ms. Edwards had (he claimed) transformed after he ended their affair in May. He told the
jury that his contact with her had become infrequent, and repeatedly stated that by the time she
was killed on June 9th, he was nothing more than a concerned friend to his former lover. See
1994 TT.XXIV.1233. Indeed, Mayfield claimed that this change was so complete (and his
former passion for Ms. Edwards so well contained) that his own wife had also welcomed their

28

As Mr. Cook succinctly put it to Wickham, when he heard this false testimony offered in court
at his 1994 trial, You are a liar. Hes making all that up, every damn bit. Exh. B at 105. Mr. Cooks
assertion is well supported by an objective assessment of the timing, content, and nature of Wickhams
allegation, and the other record evidence discussed supra.

45

mutual friend Linda back into the family even though Mayfield had carried on his affair with
Ms. Edwards for months while she was living in the Mayfields home, had left his wife and
children for her less than a month earlier, and had just lost his job (and potentially, the familys
livelihood) because of the affair. Id. at 1228-1229.
At times, Mayfield had evident difficulty getting the details of his account straight. For
example, he claimed that there was a two-week period in which he did not see Ms. Edwards
(after she was discharged from the hospital and moved into Paula Rudolphs apartment), yet was
forced to admit on cross-examination that he had seen her no fewer than four times on the day
before she died. See, e.g., 1992 T.T.VI.299. In addition, Mayfield had insisted for years that he
had only been to Ms. Rudolphs apartment twice after Ms. Edwards moved in. Yet at Mr.
Cooks 1994 trial i.e., 17 years after the fact -- he claimed to have just remembered an
additional night when the two of them were alone together in her apartment, when (he claimed)
Ms. Edwards called him in a hysterical state after attending a party one weekend, and he came
over and stayed for more than an hour to reassure her. Id. at 1231.
Each and every time he testified over a 17-year period, however, Mayfield was adamant
that on the date Ms. Edwards was killed, his physical relationship with her had been over for
nearly three weeks. See 1992 TT.VI.194. He claimed that after he moved back into his familys
home, he had established ground rules with Ms. Edwards in which he made it clear that the
sex thing . . . would not happen. See 1994 TT.XXIV.1233. Specifically, he testified that on the
day (May 19th) that he moved back home to reconcile with his wife, he had decided he would
have no further sexual relations with Ms. Edwards, and he did not do so. See, e.g., 1992
TT.VI.194; id. at 271-72. He was also directly asked whether he and Ms. Edwards had sexual
intercourse on the specific occasions on which he admitted to having seen her in the weeks that

46

followed; each time, he insisted that they had not. See id.; see also 1994 TT.XXIV.1228-1233.
Mayfield claimed that this new, platonic relationship was so secure that -- far from being jealous
when she told him she was going to date other men -- it was he who had encouraged her to do
so. See 1992 TT.VI.195 (while at Ms. Edwards apartment on the day before she was killed, I
was trying to convince her . . . that she needed to get on with her life and date other guys). See
1994 TT.XXIV.1234.
As the State well knew, its efforts to convict Mr. Cook of capital murder depended on its
ability to erase any suspicion in the minds of the jurors that Mayfield may have killed his former
lover. For that reason, the State not only repeatedly proffered Mayfield as a trial witness, but
vouched for his truthfulness and credibility of his testimony particularly his claims about the
nature of his relationship with Ms. Edwards at the time of her death. For example, ADA Dobbs
asserted in his summation at Mr. Cooks 1994 trial that by June 1977, Mayfields relationship
with Ms. Edwards was nothing more than a nonsexual friendship. Id. at 2680. For that reason,
Mr. Dobbs argued, the jury should find nothing suspicious or significant about his visit to her
apartment the day before her murder, nor the fact that she came to see him at his familys home
on the night she was killed. Id. at 2680-2682. DA Skeen tied the States case even more directly
to Mayfields credibility. He asserted that the murder occurred a long time after their [sexual]
relationship was over, giving Mayfield no motive to plung[e] this butcher knife into the back
of Linda Jo Edwards so far that it goes through and perforates [her] ribs. See 1992 TT.X.120121. Mr. Skeen proceeded to argue:
This was not a crime committed by Jim Mayfieldbut Jim Mayfield is on trial here.
And thats why Im so glad we called Jim Mayfield down here because the defense is
trying Jim Mayfield. Id. at 122.
...

47

I submit that after you saw Jim Mayfield testify, I submit youll reach the conclusion that
Jim Mayfield did not commit this crime. This is not a crime committed by Jim Mayfield.
This is a crime committed by someone such as that defendant sitting right here. Id.
...
I submit to you that Jim Mayfield is a credible witness. How difficult do you think it was
for him to come in here, take this witness stand and sit and talk about what he had been
doing with Linda Jo Edwards under all the questions he was asked? But he came in here
and did it and you got to see him and I submit he is a credible witness and a believable
witness. Id. at 131.

And if you believe Jim Mayfield, if you believe Jim Mayfield and you find him credible
and you dont believe Jim Mayfield committed this crime, which I submit to you the
evidence clearly shows he did not, who does this come right back to? Kerry Max Cook.
And thats why the defense has tried to run you off on this rabbit trail on Jim Mayfield,
because they cant sit here and try this case just trying to show you why its not Kerry
Max Cook[.] Id.

III.

Under Elizondo and Tuley, Mr. Cook is Entitled to Actual Innocence Relief
A. No Reasonable Jury Would Have Convicted Mr. Cook on the Present Record
Six separate rounds of advanced DNA testing have provided powerful new evidence

exculpating Mr. Cook and inculpating James Mayfield. In 1999, and again in 2013-15, the State
conducted advanced DNA testing on more than fifteen items of evidence from the crime scene
and Ms. Edwards corpse. Through the provisions of Chapter 64 adopted by the Legislature after
Mr. Cooks 1999 nolo contendere plea, Mr. Cook also was granted permission to conduct DNA
testing on multiple items of evidence, the results of which were set forth in three separate DNA
reports. Collectively and individually, these six DNA reports reflecting extensive forensic
testing by both parties confirm that Kerry Cook is factually innocent, and entitle him to relief
under Elizondo and Tuley. In light of the record as a whole, it is clear that no jury would have
convicted Mr. Cook beyond a reasonable doubt had these DNA results been available at trial.

48

This is so for several reasons. Consistent with the lack of any physical evidence against
Mr. Cook on record these last thirty-eight years, using todays extraordinarily sensitive DNA
methodology, not a single trace of Mr. Cooks DNA was detected on any item from the crime
scene or Ms. Edwards person. Nor was Mr. Cooks DNA detected on any item tested by the
DPS laboratory as reported two months after his plea, in 1999. But the results did consistently
yield a DNA profile fully consistent with another suspect: James Mayfield, whose seminal fluid
was detected on the victims torn underwear, in both 1999 and (with far greater discrimination)
in 2014. Indeed, the deposit of Mayfields seminal fluid on the victims underwear was of
sufficient quantity and concentration that thirty eight years after the fact, the Cellmark DNA
laboratory was still able to (1) confirm the presence of sperm and semen on the remaining
underwear fabric, even though it had been previously tested, and (2) obtain a sufficiently robust
male DNA profile from the semen donor as to all but exclude the Earths entire population,
except Mayfield, as the source i.e., a combination of DNA markers shared by just 1 in 3.112
trillion Caucasians.
Notably, both counsel for the State and counsel for Mr. Mayfield conceded the
significance of the semen donors identity to the identity of Ms. Edwards murderer before these
DNA results were available. DA Skeens office successfully delayed Mr. Cooks 1999 trial, on
the eve of jury selection, for the sole purpose of conducting the testing (on this item, as well as
the hair found on the victims buttocks which the State thereafter destroyed); indeed, prosecutors
filed an emergency motion for a continuance the very same day they learned that seminal fluid
was present. At that time, Mr. Dobbs told a reporter who had been covering the case for more
than a decade that the semen in question could only have been left by the killer. And Mr.
Mayfields counsel, who had represented him in this matter for the preceding 22 years, predicted

49

that the testing may very well be the last nail in [Cooks] coffin. See Exh. G: Lee Hancock,
New evidence might delay 4th Cook trial: 77 Tyler murder victims clothing may yield DNA,
The Dallas Morning News, February 6, 1999.
The irony, of course, is that the testing proved to be the last nail in the case against
Mayfield, not Mr. Cook. By 1999, Mr. Cooks prior counsel had developed -- through more than
10 years of painstaking investigation, and seemingly endless discovery battles a compelling
case for Mayfields guilt, as described supra. What they lacked was any forensic evidence
directly inculpating Mayfield or impeaching his own testimony. Now, however, that evidence
exists. While the deposit of the DNA itself cannot be timed through the testing process alone,
here, the test results combined with the circumstantial evidence overwhelmingly supports a
conclusion that the time of deposit was the night of the murder.29
That finding, in turn, eviscerates Mayfields credibility which, as is clear from the
prosecutors 1992 and 1994 summations (see supra), was critical to the States entire case
against Mr. Cook.

The victims torn underwear contained such a substantial quantity of

Mayfields spermatozoa that it yielded a near-complete DNA profile from him nearly four
decades later providing still further support for the conclusion that, directly contrary to his trial
testimony, Mayfields last act of sexual intercourse with Edwards occurred at the time of her
murder.

And if the jury were to conclude that Mayfield was untruthful when he repeatedly

swore under oath that he and Ms. Edwards had only a nonsexual friendship at the time of her
death, they would certainly have cause to wonder what else he may have lied about including
why he saw Ms. Edwards so many times in the 36 hours that preceded her death, and what
actually transpired when they were alone together.
29

For example, had the perpetrator not mutilated the corpse to the point where no semen was
detected on her vaginal slides, a more precise determination could have been made based on the sperms
motility, or the extent of breakdown/degradation of the cells inside Ms. Edwards corpse.

50

It is, of course, not Mr. Cooks burden to prove beyond a reasonable doubt that Mayfield
is the killer either at trial, or in this Application. However, he submits that there is ample
evidence from which a jury could (and would) so find, were the State to actually concede the
error of its former position and prosecute Mayfield. Regardless, all that is needed to grant relief
here is a conclusion that a jury would, based on all the new and old evidence, find there to be at
least a reasonable likelihood that Mayfield committed the crime. See Elizondo, 947 S.W.2d 202
(Tex. Crim. App. 1996) at 206; see also House v. Bell, 547 U.S. at 538 (petitioners burden is to
show only that more likely than not, in light of the new evidence, that no reasonable juror
would find him guilty beyond a reasonable doubt or, to remove the double negative, that more
likely than not any reasonable juror would have reasonable doubt) (emphasis supplied).30
That test is clearly satisfied here. The Courts of this state have long recognized that DNA
testing on seminal fluid from a victims underwear or other item of clothing is significant
evidence establishing a perpetrators identity whether to exculpate a convicted person, aid in
proving a suspects guilt, or (as here) both. See, e.g., Blacklock v. State, 235 S.W.3d 231 (Tex.
Crim. App. 2007) (ordering DNA testing of underwear found on victim's panties); Roberson v.
State, 16 S.W.3d 156 (Tex. App. - Austin 2000) (finding evidence sufficient to support
conviction based on DNA found on victim's clothing); State v. Lee, 2006 WL 1350226 (Tex.
App. - Waco 2006), pdr. ref'd. (ordering DNA testing; finding that defendant established by a

30

In House, the U.S. Supreme Court found for the petitioner based in significant part on new
DNA evidence excluding the convicted defendant as the donor of semen on the victims clothing; the
DNA in that case came back to the victims husband who (as here) was alleged by House to have killed
the victim in a jealous rage. The Court granted relief by applying the Schlup v. Delo standard i.e., the
same no reasonable juror test that the Elizondo Court adopted as a matter of state habeas law. The facts
of House are also instructive because the DNA alone did not prove innocence, but was one among many
facts tending to inculpate the victims husband (the original alternate suspect) and therefore creating
reasonable doubt as to Houses guilt.

51

preponderance of evidence that he would not have been convicted of sexual assault had his DNA
not matched DNA in semen in victim's vaginal specimen and on her underwear and bedsheets.
Moreover, in this case, the jury would be considering not just the detection of Mayfields
semen on this critical evidence, but the complete absence of any DNA from Mr. Cook on the
underwear (or any other item) tested over the last 38 years, even though the State has alleged that
Mr. Cook raped and violently murdered Ms. Edwards in a close-range lust murder by stabbing.
The jury would also learn that the State recovered a hair with a bloody root on the victims
buttocks that did not come from Mr. Cook or the victim, and that the State destroyed the hair
(even after prosecutors made numerous statements reflecting their full understanding of its
significance) only after it learned that Mayfields semen was present on the underwear, and
before Mr. Cook could compare the hair to Mayfield. The jury would also learn that the States
destruction of the hair was only the latest such act in a wrongful prosecution that covered more
than two decades, during which Smith County officials repeatedly failed to take basic measures
to investigate Mayfields guilt (such as their failure to interview his chief alibi witness for 14
years, or to seek permission to search his home or car) and suppression of evidence favorable to
Mr. Cook. See, e.g., Kyles v. Whitley, 514 U.S. at 448-49 (fact that state officials repeatedly
sought to protect witness who was defenses alternate suspect in murder case, and the failure of
the police to pursue pointers towards [the alternate suspects] possible guilt, undermines
integrity of States case, and is highly material to petitioners innocence defense). The State has
always conceded that its case against Mr. Cook was and remains entirely circumstantial.
Certainly, no reasonable juror would convict Mr. Cook in light of the fact that not only is there
no direct evidence inculpating Mr. Cook, but advanced DNA and other forensic evidence now
excludes Mr. Cook and inculpates Mayfield.

52

B. Impact on Other Evidentiary Rulings

Moreover, in evaluating whether the new DNA testing entitles Mr. Cook to relief based
on actual innocence, the court should examine how the availability of this evidence would have
altered the trial court's evidentiary rulings at trial. Some (but not all) of the evidence developed
by Mr. Cooks legal team between 1978-92 that tended to implicate Mayfield in the crime was
excluded by the trial court. For example, the jurors were not permitted to hear that Mayfield had
ordered the graphic book The Sexual Criminal for the campus library, nor view the pictures in
that book which showed wounds inflicted that were highly similar to Ms. Edwardss; that
Mayfield asked a psychology professor for advice on how to beat a polygraph test; that he had
a violent and explosive temper; that Mayfield reminded his friends, and asked them to remember,
that he was allegedly calm when discussing Ms. Edwards' death the day her body was
discovered; and that Mayfield expressed concern to a colleague that he had been identified at the
apartment by Ms. Rudolph on the night of the murder. 31
Under Texas law, a defendant facing retrial is restored to his original position, and the
trial court is free to accept or reject evidentiary rulings made in an earlier proceeding. See Tex.
Code Crim. Proc. art. 44.29(a); see also Childs v. State, 837 S.W.2d 822 (Tex. Crim. App. 1992);
Saldana v. State, 826 S.W.2d 948, 950 (Tex. Crim. App. 1992).
At the hypothetical retrial of Mr. Cook contemplated by Elizondo and Tuley, the court
would now have ample grounds to reconsider and reverse the foregoing rulings. This is so for
two reasons. First, the new DNA inculpating Mayfield is scientific corroboration for Mr. Cooks
longstanding claim that Mayfield lied when he testified that his sexual relationship with Ms.

At Mr. Cooks 1994 trial, the court adopted virtually all of the evidentiary rulings made in the
1992 trial, many of which were in the States favor; in the proceedings that led up to Mr. Cooks 1999
plea, the trial court adhered to the vast majority of these earlier rulings. See, e.g., 1994 TT.XXIV.1332; id.
at 2256-57; Exh. NN: (States Motions in Limine, 1998-99).
31

53

Edwards was over weeks before she was killed and that Mayfield considered her merely a
friend to him and his wife. It thus dramatically changes the weighing analysis done by the
courts with respect to other evidence regarding Mayfield under Rule 403, i.e., the probative value
and relevancy of that evidence is substantially increased. See, e.g., Cloud v. State, 567 S.W.2d
801, 802 (Tex. Crim. App. 1978) (a defendant must be given great latitude to establish the bias
of a testifying State witness or a motive to falsify his testimony).
Second, while Mr. Cook has always had an affirmative, constitutional right to present
evidence of third-party guilt, legal developments since 1999 have strengthened that right even
further, and make clear that the courts 1992-99 rulings excluding the above evidence were in
error.
"It is well established that a defendant is entitled to prove his innocence by showing that
someone else committed the crime. 1A J.H. Wigmore, Evidence 139-141, at 1723-30 (1983)
(hereinafter Wigmore). In Chambers v. Mississippi, 410 U.S. 284 (1973), the Supreme Court
recognized that an accused has a constitutional right under the Due Process Clause of the
Fourteenth Amendment to offer evidence tending to show that a third-party committed the crime
charged. See also United States v. DeNoyer, 811 F.2d 436 (8th Cir. 1987); United States v.
Green, 786 F.2d 247 (7th Cir. 1986); United States v. Crenshaw, 698 F.2d 1060 (9th Cir. 1983);
United States v. Armstrong, 621 F.2d 951 (9th Cir. 1980); Untied States v. Brannon, 616 F.2d
413 (9th Cir.), cert. den. sub nom. Cox v. United States, 447 U.S. 908 (1980); Pettijohn v. Hall,
599 F.2d 476 (1st Cir. 1979); United States v. Morgan, 581 F.2d 933 (D.C. Cir. 1978); United
States v. Robinson, 544 F.2d 110 (2d Cir. 1976), cert. den. sub nom. Robinson v. United States,
434 U.S. 1050 (1978); Holt v. United States, 342 F.2d 163 (5th Cir. 1965). Likewise, many
other courts recognize that a defendant may introduce evidence of a third party's guilt. State v.

54

Sturdivant, 31 N.J. 165, 155 A.2d 771 (1959); cert. den., 362 U.S. 956 (1960); People v. Hall, 41
Cal.3d 826, 718 P.2d 99, 226 Cal.Rptr. 112 (1986); State v. Echols, 203 Conn. 385, 524 A.2d
1143 (1987); State v. Cotton, 318 N.C. 663, 351 S.E.2d 277 (1987); accord State v. Denny, 120
Wis.2d 614, 357 N.W.2d 12 (1984).
Since the accused need only create a reasonable doubt of guilt in order to obtain an
acquittal, the courts have determined that any doubts concerning relevance should be resolved in
favor of admission of a third party perpetrator evidence. Holt v. United States, 342 F.2d 163,
165 (5th Cir. 1965). No higher showing than simple relevance is required for admissibility.
United States v. Stevens, 935 F.2d 1380, 1402 (3rd Cir. 1991). See also State v. Sturdivant, 155
A.2d 771 (1959) (requiring "some thread capable of inducing reasonable men to regard the event
as bearing upon the state's case."). The courts have eschewed any suggestion that the proffer
must prove or even raise a strong probability that someone else committed the act. Johnson v.
United States, 551 A.2d 513, 516 (D.C. 1988). See also People v. Hall, 718 P.2d 99, 103 (Cal.
1986); State v. Sturdivant, 155 A.2d 771 (1959). "To be admissible, the third party evidence
need not show 'substantial proof of a probability' that the third person committed the act; it need
only be capable of raising a reasonable doubt of defendant's guilt." If the evidence shows the
opportunity for the third party to commit the crime and tie the third-party perpetrator to the
crime, Texas courts have favored admissibility. Spence v. State, 795 S.W.2d 743, 754-55 (Tex.
Crim. App. 1990). See also Williams v. State, 643 S.W.2d 477, 483 (Tex. Crim. App. 1982)
(some evidence linking third-party perpetrator to crime is only requirement.). In sum, as long as
the proffer is relevant, not confusing to the jury, and links the perpetrator to the crime, the courts
should favor admissibility. Commonwealth v. O'Brien, 736 N.E.2d 841 (Mass. 2000).

55

Finally, it bears noting that the U.S. Supreme Court has further and recently underscored
the broad latitude that must be given to state and federal defendants who seek to present such
evidence under Chambers, in a case decided after Mr. Cooks 1999 plea. See Holmes v. South
Carolina, 547 U.S. 319 (2006). In Holmes, a unanimous Supreme Court invalidated a South
Carolina evidentiary rule on the grounds that the state had set an unconstitutionally high bar for
admission of evidence of third party guilt; the improperly excluded evidence included, inter alia,
suspicious behavior and statements made shortly after the murder by the person whom the
defense alleged was the likely true perpetrator of the crime. See id. at 323-24. And in Holmes,
as here, the defendant had alleged at trial (and sought to present evidence) that police and
prosecutors had ignored problems with the alternate suspects credibility and alibi, and had
manufactured false evidence against Holmes for the crime. See id. The Court held that the
defendants evidence was wrongfully excluded. It further emphasized that, because of the core
Constitutional right set forth in Chambers and its progeny, trial courts may exclude a defendants
proffered evidence tending to inculpate a third party only under strictly limited circumstances
that do not infringe on this right. See id. at 326-27.
Under Holmes and the other authorities listed above, there is no question that if Mr.
Cooks case were retried today, due process would require the trial court to allow the jury to hear
all of the evidence from which a jury might reasonably conclude that Mayfield was a viable
alternate perpetrator. The DNA results powerfully impeach Mayfields earlier testimony, and
provide new evidence from which a trier of fact could (and likely would) place him directly at
the crime scene. As such, the probative value of the other evidence tending to inculpate him
his troubling statements, behavior, and efforts to create evidence painting a false picture of his
innocence takes on new significance, and additional probative value. The jury would also hear

56

about Mayfields inquiries to a University colleague, asking how he could beat a polygraph
test were he asked to take one.32 In short, were there any question as to whether the jurors
should be able to hear and weigh such evidence for themselves, the combination of the new
DNA results and legal authorities resolve that balance decisively in Mr. Cooks favor.
The third-party-guilt evidence is also highly relevant to the actual innocence inquiry
specifically required in no-contest or guilty plea cases under Tuley. In Tuley the CCA instructed
art. 11.07 courts to specifically consider the reasons why the applicant claiming innocence may
have nonetheless entered into the plea at issue, recognizing that [t]he decision to plead . . . may
be influenced by factors that have nothing to do with the defendants guilt including an
inability to disprove the States case at that time. Id. at 393. Mr. Cook entered into his plea
after two decades of incarceration on death row, during which he came precariously close to
execution and suffered unimaginable acts of brutality by other inmates. When presented with the
states time-served plea offer, he was forced to weigh the benefits of immediate freedom and an
end to his legal proceedings against the possibility that, notwithstanding his factual innocence, a
jury might wrongfully convict him and send him back to death row and possible execution
for a crime he did not commit. This fear was significantly magnified by (1) the States history of
misconduct in securing his prior convictions (as confirmed by the CCA in 1996), and (2) the trial
32

The CCA has long held that the results of a polygraph test and direct evidence regarding a
defendants unwillingness to submit to such a test are per se inadmissible, because polygraph tests are not
reliable indicators of a suspects truthfulness or deception. See, e.g., Sparks v. State, 820 S.W.2d 924,
929 (Tex. Cr. App. 1991). But Mr. Cooks proffered evidence regarding Mayfield is of an entirely
different character and purpose. Mayfield never once took a police-administered polygraph; despite
earlier indicating he would do so, he twice failed to show up for his scheduled tests. See 1992 TT.VI.309.
Instead, Mayfield made what a jury could find to be highly incriminating statements to a third party lay
witness (Gary Mears) when he asked Dr. Mearss advice as to how to beat a polygraph. This evidence
is thus directly relevant to impeach Mayfields own false claim at Mr. Cooks trial that he cooperat[ed]
fully with the States investigation at all times. See 1994 TT.XXIV.1260). And Texas courts have far
greater discretion to admit evidence that pertains to polygraph examinations (or requests/refusals to take
polygraph examinations) when the purpose is to impeach a witnesss own false testimony. See, e.g.,
Rodriguez v. State, 340 S.W.2d 61 (Tex. Crim. App. 1960); Leach v. State, 548 S.W.2d 383, 386 (Tex.
Crim. App. 1977).

57

courts erroneous evidentiary rulings. For even after the CCA held that Mr. Cook would be free,
at retrial, to present a meaningful defense involving Mayfields potential culpability (the merits
of which the CCA discussed in its opinion), the trial courts yet again restricted his ability to
actually do so, by excluding much of the third-party-guilt evidence that Mr. Cooks counsel had
discovered in the intervening years. In essence, rather than see a light at the end of the tunnel of
his long ordeal, Mr. Cook saw a speeding train coming towards him on the tracks; at the very
least, his assessment that he might well be wrongly convicted yet again if he declined the states
offer was well-founded and eminently reasonable. And it is an assessment that had nothing to do
with his own factual innocence.
Were the trial court to hear the case today, however, it would undoubtedly follow the
mandate of Holmes and related authorities, and permit a full presentation of Mr. Cooks thirdparty-guilt (Mayfield) defense. This is particularly so given the significance of that evidence
when considered collectively with the new DNA all of which would give the jury very little
reason to credit (and great reason to disbelieve) Mayfields account, and to acquit Mr. Cook.
Kerry Max Cook is actually innocent, and this Court should grant relief. Because no
reasonable jury would have convicted him based on the evidentiary record now available, under
the right to due process guaranteed by U. S. Const. amend. XIV, his conviction must be vacated.

GROUND TWO
New scientific evidence requires vacatur of Mr. Cooks conviction under Art. 11.073,
Tex. Code Crim. Proc. This new evidence consists of (1) advanced DNA testing excluding Mr.
Cook and inculpating James Mayfield, and (2) scientific studies refuting the alleged scientific

58

basis for the criminal profiling evidence previously relied upon by the State to prosecute Mr.
Cook.
ARGUMENT
I.

Legal Authority
In 2013, the Texas Legislature enacted Art. 11.073, Tex. Code Crim. Proc.

This

provision recognized the importance of evolutions in forensic science in rectifying wrongful

convictions, and established new scientific evidence as an independent basis for relief. Under
the statute, habeas relief may be granted based on the favorable results of previously-unavailable
forensic testing -- even if the results are not sufficient to prove actual innocence under the
standard set forth in Elizondo -- as long as the convicted person demonstrates that, in light of the
entire record, it is more likely than not that the new forensic evidence, viewed in light of the
entire record, would have led to his or her acquittal had it been offered at a trial.
Specifically, the new statute provides:
ART. 11.073. PROCEDURE RELATED TO CERTAIN SCIENTIFIC
EVIDENCE
(a)
This article applies to relevant scientific evidence that:
(1)
was not available to be offered by a convicted person at the
convicted person's trial; or
(2)
contradicts scientific evidence relied on by the state at trial,
(b)
A court may grant a convicted person relief on an application for a writ of
habeas corpus if:
(1)
the convicted person files an application, in the manner provided
by Article 11.07, 11.071, or 11.072, containing specific facts indicating that:
(A)
relevant scientific evidence is currently available and was
not available at the time of the convicted person's trial because the evidence was
not ascertainable through the exercise of reasonable diligence by the convicted
person before the date of or during the convicted person's trial; and
(B)
the scientific evidence would be admissible under the
Texas Rules of Evidence at a trial held on the date of the application; and
(2)
the court makes the findings described by subdivisions (1)(A) and
(B) and also finds that, had the scientific evidence been presented at trial, on the
preponderance of the evidence the person would not have been convicted.

59

(c)
For purposes of section 4(a)(1), Article 11.07, section 5(a)(1), Article
11.071, and section 9(a), Article 11.072, a claim or issue could not have been
presented previously in an original application or in a previously considered
application if the claim or issue is based on relevant scientific evidence that was
not ascertainable through the exercise of reasonable diligence by the convicted
person on or before the date on which the original application or a previously
considered application, as applicable, was filed.
(d)
In making a finding as to whether relevant scientific evidence was not
ascertainable through the exercise of reasonable diligence on or before a specific
date, the court shall consider whether the scientific knowledge or method on
which the relevant scientific evidence is based has changed since:
(1)
the applicable trial date or dates, for a determination made with
respect to an original application; or
(2)
the date on which the original application or a previously
considered application, as applicable, was filed, for a termination made with
respect to a subsequent application."
See Tex. Code. Crim. Proc. art. 11.073 (emphasis supplied).
Since the enactment of art. 11.073, the CCA has issued only one decision
interpreting the new statute, the reasoning of which supports Mr. Cooks claim. See Ex
Parte Robbins, No. WR-73,484-02, (Tex. Crim. App. Nov. 26, 2014) (not designated for
publication).33 Earlier this year, the CCA granted the States motion for rehearing in
Robbins and oral argument was held in June 2015; a decision remains pending.

In Robbins, relief was granted on the applicants successive writ, pursuant to the art. 11.073;
the statute was not in effect at the time of Robbinss first art. 11.071 writ, and the same scientific evidence
had previously been found insufficient to result in Elizondo relief. However, the CCA granted relief
under 11.073, based on the lesser burden provided for under the new statute. Moreover, the new evidence
in Robbins was far less objective and well-established than the advanced DNA testing that is the primary
basis for Mr. Cooks claim here. In Robbins, the applicants new evidence was an affidavit and testimony
by the former medical examiner for the state, who, after Robbinss trial, reevaluated her trial testimony
and attested that she no longer stood by her prior opinion as to the cause of the death of the child under
Robbinss care (his daughters girlfriend, whom he was alleged to have intentionally asphyxiated). First,
the CCA found that this change in opinion by the States expert constituted new, previously unavailable
evidence under art. 11.073(b)(1)(A), and that it was admissible evidence. Second, because the MEs
earlier testimony was the only evidence claiming conclusively that Tristen died as the result of a
homicide, the CCA concluded that Robbins satisfied art. 11.073(b)(2), in that the record showed, by a
preponderance of the evidence, Robbins would not have been convicted by a jury had the evidence been
available at trial. See Robbins, slip. op. at 21-22.
33

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Furthermore, while rehearing in Robbins was pending, the Legislature amended art.
11.073 to clarify the applicable standard in certain cases.34

II.

Mr. Cook is Entitled to Art. 11.073 Relief

A. Post-Conviction DNA Test Results
The post-conviction DNA testing that excludes Cook and inculpates Mayfield constitutes

new scientific evidence under Art. 11.073. This includes the DNA testing conducted by the State
and reported in April 1999, as well as the testing conducted by both parties pursuant to Chapter
64 of the Code of Criminal Procedure in 2013-15. All of the elements of art. 11.073 are satisfied.
First, this evidence "was not available to be offered by a convicted person at the
convicted person's trial." Likewise, this "evidence is currently available and was not available at
the time of the convicted person's trial because the evidence was not ascertainable through the
exercise of reasonable diligence by the convicted person before the date of or during the
convicted person's trial." The first round of testing was not completed by the States DPS
laboratory until April 1999 (two months after Mr. Cooks conviction by no-contest plea), despite
the States assurance that DPS would expedite the testing in order to have the results available
prior to the scheduled start of Mr. Cooks February 1999 trial. Mr. Cooks legal team was also
advised, at the time his final plea offer was made, that the offer was strictly time-limited; they
were given less than an hour to decide whether to accept the offer or proceed immediately to
trial.
The results of the second through fifth rounds of DNA testing conducted in 2013-15 at
the Cellmark laboratory were also not available in February 1999. The testing was obtained
pursuant to a statute (Chapter 64) that was enacted more than two years after Mr. Cooks
34See

Acts 2013, 83rd Leg., ch. 410 (S.B. 344), 1, eff. Sept. 1, 2013.

61

conviction. Moreover, the advanced STR-DNA methodologies used by the Cellmark laboratory
(Identifiler PlusTM and Y-FilerTM) were not validated for forensic use or available to any party
until many years after Mr. Cooks conviction. 35 In addition, the advanced methodologies
available to Cellmark yielded more complete and probative results on the victims underwear
than were available even in 1999. DPS was able to obtain a partial profile consistent with
Mayfield and which excluded Mr. Cook in 1999. However, the DNA profile common to
Mayfield and the male donor on the seminal fluid tested by Cellmark in 2013 is far more
complete and discriminating -- shared by just 1 in 3.112 trillion (in the epithelial cell fraction
of the cutting) and 1 in 10.07 billion (in the sperm fraction) unrelated Caucasians, i.e., fewer than
one such individual out of the entire current population of the Earth.
Second, the new evidence is clearly admissible under the Texas Rules of Evidence. Both
laboratories that conducted the testing were approved by the district courts and the State (and, in
1999, at the States own DPS laboratory), and used DNA methodologies that are generally
reliable and accepted in the scientific community.
Third, it is certainly clear, "by a preponderance of the evidence," that had the evidence
been presented at trial, Mr. Cook would not have been convicted beyond a reasonable doubt.
This is so for the same reasons that entitle Mr. Cook to relief under the even more demanding
Elizondo actual innocence test (Ground One, supra). In each of his three prior trials, the
evidence offered against Mr. Cook was less than flimsy, while the evidence that Mayfield
committed the murder is strong and convincing particularly so when the DNA results are added
to the record. In addition, the DNA testing impeaches Mayfield's testimony at trial and the
position staunchly adopted by the State based on his testimony, concerning (1) his allegedly
35

Identifiler Plus was first validated for forensic use and approved for forensic casework at the
Texas Department of Public Safety in 2011; Y-Filers validation/approval date was in 2009. See Email
from K.Clement, TDPS DNA Analyst, dated Jan. 21, 2015 (on file with counsel).

62

non-sexual friendship with Linda Jo Edwards at the time of her death, and (2) his insistence
that he was not in her apartment on the night she was killed. A jury that learned that Mayfields
semen was present (and in sufficient quantities to be detected 37 years later) on the underwear
torn from Ms. Edwards body at the time she was killed would conclude that there exists, at the
very least, a reasonable likelihood that Mayfield lied in his testimony, and that he murdered Ms.
Edwards. Indeed, as discussed supra, the entire record now creates an overwhelming and
powerful case for Mayfields guilt. This includes not just the new DNA, but also the fact that a
bloody hair found on the victims buttocks did not come from Mr. Cook or from the victim
herself; that Mayfield told many people that he was angry with the victim for ruining his career
in the days prior to her death, and was very upset when she informed him she intended to date
other men just hours before she was killed; and Mayfields highly suspicious behavior before and
after the murder. By contrast, there exists no inculpatory physical evidence against Mr. Cook
(indeed he was excluded from every single DNA test performed by both parties over a 15 year
period), nor any credible lay testimony or evidence of motive as to Mr. Cook. For all of these
reasons, it is clear that, by a preponderance of the evidence, no jury would have convicted Mr.
Cook beyond a reasonable doubt of this crime.
B. States Profiling Evidence is Scientifically Invalid and Inadmissible
1. The unscientific profiling evidence previously used by the State
During Mr. Cooks 1994 trial, the state introduced what it presented as criminal profiling
evidence in an attempt to establish that he, and not Mayfield, murdered Linda Jo Edwards. The
state's witnesses surmised that Ms. Edwardss murder was a lust-based attack sparked by sexual
fantasies, rather than a domestic homicide by someone in an intimate relationship with the
victim. After Judge Tunnell ruled that the State would be barred at retrial from relying on its
63

initial theory of motive -- that Mr. Cook was a closeted gay man who murdered Ms. Edwards out
of self-hatred and rage against women -- two purported experts for the State provided
testimony regarding the profile of the alleged killer. Both State witnesses offered only thinly
veiled versions of the States initial perversion motive, however. The first, Dusty Heskew, a
sergeant with the Austin Police Department and investigator in the departments violent crimes
unit, was hired as a consultant for the state in 1992. Heskew claimed this was a stranger-onstranger, fantasized lust murder. See 1994 TT.XXII.661.

The second alleged expert, David

Gomez, also became a consultant for the State in the early 1990s.

He also claimed at Mr.

Cooks 1994 trial that the homicide should be categorized as a disorganized sexual homicide
and lust murder. Id. at 800.
This expert testimony was critical to the States case at trial, and relied on heavily by
prosecutors in summation. They repeatedly cited the testimony to argue that Mr. Cook fit the
profile of the killer: that he was sexually ambivalent and killed and mutilated Ms. Edwards
by reason of this alleged psychiatric disorder. Id. at XXXI.2806. Moreover, the State repeatedly
cited this testimony as scientific proof that Mayfield did not fit the profile of the killer and
could not have committed this crime. Id. (DA Skeen, citing profiling evidence: You can rule
out domestic homicide. You can rule out it being committed [by] someone [like Mayfield] in
love with Linda Joe Edwards.) 36
2.

Research published since Mr. Cooks trial establishes that there is no

legitimate scientific basis for the States criminal profiling evidence

Despite the States claim that scientific evidence proved that a sexually ambivalent
Absent such profiling evidence, the basic elements of the crime and the victims injuries in
fact supported the conclusion that the killer was someone who like James Mayfield had a tumultuous
personal relationship with the victim. See 1994 TT.XXIX.2380-2383 Dr. Richard Coons regarding
victims extensive stab wounds, mutilation of body parts, and injuries causing facial disfigurement); id. at
2547-2548 (testimony of Dr. Linda Norton regarding same). This type of rage, she opined, is common to
domestic homicides where the killer and victim know each other.
36

64

stranger committed this crime, academic examinations of criminal profiling evidence published
in the years since Mr. Cooks 1994 trial and 1999 no-contest plea invalidate the accuracy of the
profiling practice. In fact, contrary to the testimony of David Gomez, who told Cooks jury that
profiling (or crime classification) was a science supported by research, the practice is not
based in science at all. It is now clear that the use of profiling in criminal investigations should
be approached cautiously because the hopes and aspirations of practitioners and the hype of
media and popular culture have far exceeded the reality of practice. Christopher Devery,
Criminal Profiling and Criminal Investigation, J. OF CONTEMP. CRIM. JUST. 393, 406 (2010).
A 2008 study elaborated on the fallibility of criminal profiling and concluded that there is
no compelling scientific evidence to support the positive view of criminal profiling that
dominates popular opinion. Brent Snook, Richard M. Cullen, Craig Bennell, Paul J. Taylor &
Paul Gendreau, The Criminal Profiling Illusion: Whats Behind the Smoke and Mirrors, CRIM.
JUST. & BEHAVIOR 1257, 1263 (2008). Even though there are no standardized techniques for
making criminal profiling predictions, approaches to profiling are classified as having a clinical
or statistical orientation, thus creating an illusion of validity. See id. at 1258.
Perhaps even more concerning are a succession of cases where it appears that
investigative enthusiasm combined with a profile sidetracked investigations or even contributed
to the arrest of a person who was convicted and subsequently found not guilty, often on the basis
of DNA evidence. Devery, supra at 404. Confirmation bias is a real threat when it comes to
utilizing a criminal profile to generate a suspect. In this case, that bias is even more concerning
due to the fact that the offender profile was generated by State experts years after the offense was
committed and Kerry Max Cook was already the focus of the states investigation indeed, the
State had spent over a decade defending his initial wrongful conviction and seeking to carry out a

65

death sentence against him.

In essence, the State used unscientific profile evidence to confirm their claim that Cook
was Linda Jo Edwardss killer instead of conducting a thorough investigation and considering all
potential suspects. They then sold this evidence to Cooks jury as if it were scientific evidence
of his guilt, and as scientific proof of Mayfields innocence. Absent any physical evidence
linking Mr. Cook to the crime, the State tried to convince the jury that his allegedly deviant
lifestyle somehow sparked a desire to commit murder. Worse, they relied on the lust murder
and sexual ambivalence claims of their proffered scientific experts to appeal to the jurys rank
prejudices against and stereotypes of gay men going so far as to argue that Mr. Cooks alleged
conflict over his own sexuality (or, in DA Skeens more direct phrasing, the sexual ambivalence
of this defendant, which I think now has just been straight out characterized by the defense
lawyer over here as lifestyle or homosexuality, whatever you want to refer to it as) was
evidence that the jury should rely upon to determine a motive for the murder, convict Mr.
Cook, and sentence him to death. See 1994 TT.XXXI.2785.
Were Mr. Cook to be tried today, however, none of the States profiling evidence would
be admissible under Tex. R. Evid. 702. Without the benefit of this invalid testimony, the State
would have no smokescreen to hide behind: no way to conceal the weaknesses of its case from
the jury, and no way to use homophobic slurs to distract the jury from the lack of objective
evidence of guilt. Exclusion of this testimony would also erase any alleged scientific support for
the States claim that Mayfield was not the killer because he was not a lust murderer but
instead was a friend of the victims who loved and cared about her. Absent such testimony - and whether alone or in combination with the DNA results discussed supra -- by a
preponderance of the evidence, Mr. Cook would not have been convicted of this crime.

66

GROUND THREE
The State suppressed exculpatory evidence it possessed prior to entry of Mr. Cooks nocontest plea to wit, its knowledge that James Mayfield was, or would in all likelihood turn out
to be, the donor of the semen found on the underwear torn from Ms. Edwards body by her killer.

ARGUMENT

I.

Legal Authority
For over fifty years, it has been well settled that both state and federal prosecutors have

an affirmative duty to timely disclose any evidence favorable to an accused, whether it pertains
to guilt or punishment. See Brady v. Maryland, 373 U.S. at 87 (1963); Ex parte Adams, 768
S.W.2d 281, 293 (Tex. Crim. App. 1989). The pretrial Brady disclosure obligation is a broad
one, requiring production of all favorable evidence irrespective of the good or bad faith of the
prosecution. Brady, 373 U.S. at 87; see also R. Cary et al., FEDERAL CRIMINAL
DISCOVERY (2011 ed.) 1.B at 29-30 (demonstrating that evidence is favorable or
exculpatory to the defendant under Brady is not a difficult hurdle to overcome. The court need
only find that the information would have aided the defendants case in some way.) It is also
well-settled that favorable material subject to mandatory disclosure under Brady has long
included evidence that may be used to impeach a States witness, including evidence affecting
credibility. See Giglio v. U.S., 405 U.S. 150, 153-54 (1972); see also United States v. Bagley,
473 U.S. 667, 675-76 (1985) (no distinction between impeachment evidence and other favorable
evidence for Brady purposes).

67

In Kyles v. Whitley, 514 U.S. 419, 115 S.Ct. 1555, 131 L.Ed.2d 490 (1995), the Supreme
Court discussed the materiality prong of Brady at length, clarifying the showing necessary to
obtain a new trial when the prosecution withholds either exculpatory or impeachment evidence.
Under Kyles, this showing does not require a demonstration that the disclosure of this evidence
would have necessarily resulted in an acquittal. Rather, as the Court stated, the question is not
whether the defendant would more likely than not have received a different verdict with the
evidence, but whether in its absence he received a fair trial, understood as a trial resulting in a
verdict worthy of confidence. 514 U.S. at 434, 115 S.Ct. at 1566. The Kyles Court emphasized
that the materiality test is whether there is a reasonable probability that, had the evidence been
disclosed to the defense, the result of the proceeding would have been different. Id. at 433
(citing Brady at 473 U.S. at 682).
In 2012, the Court reaffirmed this standard, granting Brady relief in a murder case in
which the suppressed material consisted only of a single, undisclosed prior statement from an
eyewitness to the murder, who had initially told police that he did not believe he had gotten a
good enough look at the perpetrator to identify anyone, but had then identified the defendant at
trial. See Smith v. Cain, 132 S.Ct. 627, 631 (2012) (defendant entitled to relief whenever States
failure to disclose Brady material undermine[s] confidence in [his] conviction) (internal
citations omitted). See also Norris v. Slayton, 540 F.2d 1241 (4th Cir. 1976) (failure to furnish to
rape defendants counsel a copy of lab report showing no hair or fiber evidence in defendants
undershorts or in victims bed); United States ex. rel. Smith v. Fairman, 769 F.2d 386 (7th Cir.
1985) (failure to provide police ballistics report showing gun defendant allegedly used to fire at
police was inoperable).

68

Furthermore, where Brady material is undisclosed, knowledge of that material by any

government agents, such as police officers or state laboratory personnel, is imputed to the
prosecution. See Kyles, 115 S.Ct. at 1567, (the individual prosecutor has a duty to learn of any
favorable evidence known to the others acting on the governments behalf in the case, including
the police, and the disclosure requirements apply whether the prosecutor succeeds or fails in
meeting that obligation); Williams v. Whitley, 940 F.2d 132 (5th Cir. 1991).
Additionally, the duty to disclose exculpatory evidence is ongoing and the state must
disclose it whenever it is discovered. In Flores v. State, 940 S.W.2d 189, 191 (Tex. App. - San
Antonio 1996, no pet.), Brady relief was granted based on a prosecutors failure to disclose the
favorable statement of a non-testifying witness that was made the day before trial. See also
Imbler v. Pachtman, 424 U.S. 409, 427 n.25 (1976) (even after conviction is obtained, prosecutor
is bound by the ethics of his offices to inform the appropriate authorities of after-acquired
information that casts doubt on correctness of conviction); Pena v. State, 353 S.W.3d 797 (Tex.
Crim. App. 2011) (granting Brady relief based on exculpatory information discovered by
prosecutor only after trial).
Applying the above authorities, Texas courts have frequently reversed cases based on the
suppression of exculpatory evidence by the prosecution. See, e.g., Ex Parte Miles, 359 S.W. 3d
647 (Tex. Crim. App. 2012); Thomas v. State, 841 S.W.2d 399 (Tex. Crim. App. 1992); Ex parte
Richardson, 70 S.W.3d 865 (Tex. Crim. App. 2002).

II.

Mr. Cooks Due Process Rights Were Violated by Prosecutors Failure to

Disclose Exculpatory Evidence

Mr. Cook's due process rights were violated when the State suppressed exculpatory
evidence. The record in this case contains compelling evidence that District Attorney Jack

69

Skeen and Assistant District Attorney David Dobbs offered Mr. Cook his no contest plea on
the eve of retrial because they knew that the DNA testing on Edwards' panties would, in all
likelihood, exculpate Cook and inculpate Mayfield. Whether they knew this based upon a
preliminary oral report from the DPS DNA laboratory that was not disclosed to Mr. Cook, from
information provided to them by Mr. Mayfields counsel, or both, is a factual issue to be
developed and resolved at an evidentiary hearing. See also Tex. Code Crim. Proc. art. 11.07(d)
(where, upon review of initial writ pleadings, there exist controverted, previously unresolved
facts that are material to the applicants claim, the district court may order affidavits,
depositions, interrogatories, additional forensic testing, and hearings to resolve those issues).
On the current record, a series of facts and circumstances create a powerful prima facie
case that prosecutors violated Brady with respect to Mayfield and the States DNA testing.
Prosecutors were so eager to conduct DNA testing on the victims underwear that they filed an
emergency motion on February 5, 1999 to delay the trial, on the very day that DPS discovered
that semen was present on that item. They told the trial court that completing the DNA testing
before trial began was critical to finding the truth about who killed Ms. Edwards; outside the
courtroom, ADA Dobbs told a reporter who had been covering the case for over a decade that the
stain in question could only have been left by the killer. Mayfields counsel, Buck Files, was - at that time -- equally emboldened by the newly-available prospect of a DNA test assuring the
public on February 5th that the test would prove the truth of Mayfields longtime claim that he
was not present at the crime scene, and may very well be the last nail in [Mr. Cooks] coffin.
Ten days later, however, the States position had changed dramatically. DA Skeen and
his deputies had insisted for more than sixteen months that Mr. Cook was guilty, and that they
would yet again convince a jury to sentence him to death for Ms. Edwards rape and murder. See

70

Lee Hancock, Try Cook Again, Say Victims Kin, Dallas Morning News, October 8, 1997
(reporting that, Based on evidence they say is still usable against Mr. Cook, [ADA] Dobbs said,
prosecutors believe they can obtain another death sentence, and quoting ADA Dobbs: We
wouldnt even consider a plea to life.) (emphasis supplied) attached as Exh. OO. But on
February 15, DA Skeen and ADA Dobbs approached Mr. Cooks counsel in court and offered
him a no-contest plea one in which he would be required to serve not a single day of additional
prison time and make no admission of guilt whatsoever. This offer, moreover, came within an
hour of Mr. Cook having summarily rejected an initial offer by the State that would have
required him to plead guilty and return to prison for over a decade a powerful indication that
the prosecutors were determined, even desperate, to resolve the case through any plea agreement
Mr. Cook and his counsel would accept before jury selection began.
In explaining the States sudden reversal of position to the public, then-DA Skeen
claimed that he and his staff had determined that DNA testing was not likely to provide the
inculpatory evidence they had previously hoped even though, according to Mr. Skeen, the
testing was still in progress (and, indeed, no DNA report would issue for another two months).
See Exh. L: Davis McAuley, "Plea Bargain Ends 1977 Capital Murder Trial; Cook Still Says He
Didn't Do It," The Bastrop Advertiser. February 18, 1999:

("Testing continues on a recently

discovered semen stain on the dead woman's underwear, said Skeen. But initial indications were
that the new evidence would not prove helpful to prosecutors, he [Skeen] said.)
Even more suspiciously, ADA Dobbs told the media not only that early indications were
that the [semen] stain would not be usable for DNA analysis, but that its location in the
underwear suggests it may have been left at a time other than the attack. See Exh. PP: Pete
Slover, Cook pleads no contest, leaves court a free man: Lesser Charge of murder averts 4th trial

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in 77 case. The Dallas Morning News. February 17, 1999.

However, the location in the

underwear of this semen stain had not changed from the previous week, when (1) the stain was
discovered by DPS and reported to prosecutors, and (2) prosecutors successfully moved to delay
the trial in order to permit DPS to obtain DNA test results results that Mr. Dobbs personally
assured the court would be extremely important information to all parties, and could help
reveal who killed Linda Jo Edwards. Moreover, Mayfields own counsel, who had days earlier
boldly predicted the DNA testing would exculpate his client, had no comment whatsoever about
the pending DNA tests or Mr. Cooks no-contest plea.
It is clear, then, that at some point between February 5th and February 15, 1999, Mr.
Skeen and Mr. Dobbs acquired significant new information relating to the semen donors identity
information that led them to a complete reversal of their earlier position, and try and minimize
the significance of the as-yet-unpublished DNA results. Of course, James Mayfield was the only
known prior consensual partner of the victims in the year she was killed, i.e., the only one
whose semen would be present on the underwear as a result of sexual intercourse at a time other
than [during] the attack, in Mr. Dobbss words. Yet nothing had changed about the location in
the underwear where the stain was found rendering patently false Mr. Dobbss explanation for
his new assertion that the semen stain was likely irrelevant to the killers identity. In addition,
the record now shows that on the very same date prosecutors made Mr. Cook its first plea offer,
they also received a report from Mayfields counsel regarding a polygraph examination of his
client. Yet the record contains no explanation as to why, and at whose request, Mayfield was
suddenly asked to take a polygraph 22 years after the murder, with the results copied to the State
-- particularly since the State (including DA Skeen himself) had already repeatedly vouched in

72

court for Mayfields credibility, and Mayfields own lawyer had publicly predicted a mere six
days earlier that the DNA testing would vindicate his client.
These facts will be further developed in an evidentiary hearing, at which the Court can
hear testimony from now-Judge Skeen, Mr. Dobbs and other state officials about what they
knew, when they knew it, from what source(s), and why they chose not to reveal this information
to Mr. Cook's lawyers. As it now stands, however, the record contains overwhelming evidence
that the District Attorneys Office made Mr. Cook a time-served plea offer specifically to avoid
having DNA results inculpating Mayfield come to light mid-trial (which would have been
particularly damaging if Mayfield testified yet again that he had not had intercourse with Ms.
Edwards for several weeks before her death). The record also strongly supports the conclusion
that immediately after securing Mr. Cooks plea, prosecutors attempted to draw the sting of
DNA results that would soon inculpate Mayfield, by preemptively suggesting to the public that
the semen stain on the victims underwear was not deposited by her killer after all. Applicant
respectfully submits that the Court, after hearing this testimony, will conclude that the State's
suppression of this exculpatory evidence is a violation of due process and requires relief on this
ground.
Finally, Mr. Cooks Brady claim is supported by the fact that the explanation Mr. Skeen
and Mr. Dobbs provided to the public as to why they suddenly offered Mr. Cook a time-served,
no-contest plea is not credible. Following entry of the plea, DA Skeen and ADA Dobbs
repeatedly stated that the case against Mr. Cook and thus, their chances of securing a
conviction -- was substantially weakened by the 1996 decision of the Court of Criminal Appeals
to exclude the testimony of Robert Hoehn. See Exh. QQ: Pete Slover, Life after death-row case:
Both sides search for justice as 22-year Cook saga ends, The Dallas Morning News. February

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19, 1999: Mr. Skeen and Mr. Dobbs said the exclusion of Mr. Hoehns crucial testimony
weakened their case to the point they were willing to cut a deal... Yet the prosecution had
known for over fifteen months that Hoehn's testimony was unavailable at retrial, i.e., since
October 6, 1997, when the CCAs decision became final after the U.S. Supreme Court denied
certiorari. Yet the District Attorneys Office made clear from that date forward that it did not
consider the exclusion of Hoehns testimony, or any of the other tainted evidence barred by the
CCA, a bar to its ability to put Mr. Cook on trial for a fourth time and secure yet another
conviction and death sentence. Indeed, ADA Dobbs stated the day after the CCAs mandate
issued in October 1997 that his office was so confident in its ability to convict Mr. Cook
notwithstanding the CCAs ruling that it would not consider a plea to life. See Exh. GG: Lee
Hancock,Try Cook Again, Say Victims Kin, Dallas Morning News, October 8, 1997.
Put another way, by the time Mr. Cooks fourth trial was set to begin in February 1999,
the States inability to rely on Hoehn's testimony (as well as the other tainted evidence barred by
the CCA) was old news. Nor were there any other significant legal or factual developments in
the case during that period that would have led the State to so dramatically reconsider its
prospects at trial. To the contrary: in the months prior to the States sudden plea offer, the trial
court had granted a series of motions in limine filed by prosecutors, rulings that greatly hampered
Mr. Cooks ability to present evidence that Mayfield was the real killer. 37 If anything, then,
based on all information available to the public, the States prospects of success at trial were
stronger than they appeared after the CCAs 1996 ruling, when prosecutors made the decision to
subject Mr. Cook to a fourth capital murder trial, and require Smith County taxpayers to foot the
considerable bill that such a retrial would involve.
37

See, e.g., Exh. NN: States Motions in Limine, filed 12/15/98, 2/15/99, and 2/16/99.

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Only an intervening event of substantial magnitude could have caused such a seismic
shift in the prosecution's strategy. All of the evidence now on record, and other evidence to be
developed at a hearing, overwhelmingly support the conclusion that this intervening event
concerned the as-yet-unreported DNA testing; that prosecutors had been made aware that
Mayfield lied in his earlier testimony; and that they had specific reason to fear that Mayfields
earlier false testimony would soon be exposed by the States own DNA testing.

Because the

State secured Mr. Cooks conviction without disclosing any of this information to him, due
process was violated, and relief should be granted.

GROUND FOUR
Mr. Cook's due process rights were violated by the State's bad faith destruction of
exculpatory evidence.
ARGUMENT
I.

Legal Authority

As a person convicted of murder in the State of Texas, and who continues to suffer
considerable collateral consequences under the terms of his no-contest plea, Mr. Cook has both
a statutory and constitutional right to the preservation of evidence that could exculpate him.
In April 2001, the Texas Legislature enacted Chapter 64 of the Code of Criminal
Procedure concerning DNA testing. That statute conferred on convicted persons in this state, for
the first time, a statutory right to conduct DNA testing on evidence that could provide grounds to
vacate their convictions.

As part of the statutory scheme, all state agencies are prohibited,

without notice to the convicted person and/or a court order, from destroying any item of
biological evidence that might be eligible for testing under Chapter 64. See Tex. C. C. P. Art.
38.43(c).
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In addition, well prior to the enactment of Chapter 64, the Supreme Court interpreted the
Due Process Clause of the Fourteenth Amendment to bar state officials from destroying material,
exculpatory evidence, or from engaging in the bad-faith destruction of evidence known to be
exculpatory. There are two routes under which a defendant can prevail on a due process claim
for failure to preserve evidence. First, under California v. Trombetta, 467 U.S. 479, 489 (1984),
a due process violation will lie whenever state officials fail to preserve evidence that is
materially exculpatory that is, no showing of bad faith or deliberate intent is needed. To
qualify under Trombetta, the evidence at issue must both possess an exculpatory value that was
apparent before the evidence was destroyed, and be of such a nature that the defendant would be
unable to obtain comparable evidence by other reasonably available means. Id.
Second, due process may also be violated where the State fails to preserve evidence that
is not known to be materially exculpatory, but is only potentially useful to the defense
provided the court concludes that the State destroyed the evidence in bad faith, rather than
through negligence or inadvertence. See Arizona v. Youngblood, 488 U.S. 51, 56-58 (1988). In
Youngblood, the Court explained that interpreting the Due Process Clause to grant relief based
on the bad faith destruction of evidence focuses on that class of cases where the interests of
justice most clearly require [relief], i.e., those cases in which the police themselves by their
conduct indicate that the evidence could form a basis for exonerating the defendant. Id. at 58;
see also id. at 56 n* ([t]he presence or absence of bad faith by the police for purposes of the
Due Process Clause must necessarily turn on the police's knowledge of the exculpatory value of
the evidence at the time it was lost or destroyed) (emphasis supplied).
Both Trombetta and Youngblood are demanding tests, requiring evidence that suggests
official misconduct which can be difficult for most criminal defendants to obtain, particularly

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since (by definition) the physical evidence in question has typically been destroyed before its
exculpatory value can be fully determined. (Indeed, as is well known today, the Supreme
Courts decision to deny relief to the defendant Youngblood under its bad faith test delayed the
exoneration of an innocent man by more than a decade since some of the missing evidence in
Mr. Youngbloods case was later found, and when subjected to DNA testing, it proved beyond
any doubt that Mr. Youngblood did not commit the rape for which he had been wrongfully
convicted. 38 As discussed below, however, Mr. Cooks case is the rare one in which both
Trombetta and/or Youngblood are readily satisfied.

Indeed, the successful destruction-of-

evidence claims in courts nationwide involve evidence that was far less patently exculpatory, and
under far less suspicious circumstances, than the hair evidence in Mr. Cooks case. The fact that
police and prosecutors further destroyed this evidence not only in violation of a Texas
preservation statute, but did so only after a companion statute (Ch. 64) entitled Mr. Cook to
obtain a post-conviction DNA test on that evidence for the first time since his conviction, makes
the inference of bad faith even more undeniable.
II.

Smith County Prosecutors and Police Violated Due Process by Destroying

the Hair Evidence in Mr. Cooks Case Before It Could Be DNA Tested
A. Trombetta Violation

Under Trombetta, no showing of bad faith is needed if the defendant establishes that state
officials (through negligence or otherwise) failed to preserve evidence that possess[ed] an
exculpatory value that was apparent before the evidence was destroyed, and where the
defendant [is] unable to obtain comparable evidence by other reasonably available means. See
467 U.S. at 489. It is clear that this case meets both prongs of Trombetta. First, the exculpatory

See Marc Bookman, Does an Innocent Man Have the Right to be Exonerated? The Atlantic.
December 6, 2014) (available at http://www.theatlantic.com/features/archive/2014/12/does-an-innocentman-have-the-right-to-be-exonerated/383343/).
38

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value of the hair with a bloody root recovered from Ms. Edwards buttocks was apparent for
more than two decades before it was destroyed by Smith County officials in 2001; the State had
the hair examined by its own microscopic analysts at DPS in 1977, who determined (and
reported) that it did not belong to Mr. Cook, nor to Ms. Edwards herself.

Second, the States

destruction of the hair in 2001 has clearly negated Mr. Cooks ability to obtain comparable
evidence by any means. That is, he can no longer perform the very DNA test on the hair that
both his counsel and the State agreed to conduct in open court in February 1999, and which the
State at that time agreed could provide critical new information as to the identity of Ms.
Edwards killer.

In particular, the States destruction of the hair precludes Mr. Cook from

performing a DNA test that (a) confirms, through advanced DNA technology, the correctness of
the State microscopists original conclusion that the hair was from a foreign source, and (b)
determines whether the hair belonged to James Mayfield, to whom the State never before
compared it, using any method.
There is no substitute for a DNA test where questions of guilt and innocence are at issue.
See, e.g., Dist. Attys Ofc. v. Osborne, 557 U.S. 52, 55 (2009) (DNA testing has an unparalleled
ability both to exonerate the wrongly convicted and identify the guilty); Maryland v. King, 133
S.Ct. 1958, 1966, 1972 (2013) (noting that DNA technology is one of the most significant
scientific advancements of our era, and citing the unparalleled accuracy DNA provides in
criminal cases). Because the States destruction has prevented DNA testing on at least one item
of critical evidence that the State already knew did not come from Mr. Cook or the victim, but
before it could be compared to DNA from the man that Mr. Cook had long contended was the
real perpetrator of Ms. Edwards murder, due process requires relief.

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B. Youngblood Violation
Even assuming, arguendo, that the hair evidence destroyed by the State was only
potentially useful, a due process violation still lies because the record supports a finding of bad
faith. It could not be more clear from the present record that Smith County officials had
knowledge of the exculpatory value of the evidence at the time it was lost or destroyed, and
by their conduct indicate[d] that the evidence could form a basis for exonerating [Mr. Cook],
either of which is sufficient to establish bad faith. See Youngblood, 488 U.S. at 56, 58. The
State had already had its own experts examine the hair and compare it to Mr. Cook and the
victim, and eliminated both of them as the apparent source, establishing the exculpatory value
of the evidence. Moreover, in moving to delay Mr. Cooks trial for the sole purpose of doing a
DNA test on the hair and semen evidence, the District Attorneys Office stated in its moving
papers and in open court that this testing was extremely importantto make sure the ends of
justice are achieved, as it could shed some light on who killed Linda Jo Edwards. Indeed,
ADA Dobbs asserted that because the results of testing the hair and semen could support Mr.
Cooks defense, he believed it was in the defenses interest to delay the trial for this purpose. See
1999 TT.I.22.
Were that not enough, there are numerous other facts supporting a conclusion that the
hair evidence was destroyed in bad faith. The State was told on February 8 and February 15,
1999, that the hair was in fact suitable for DNA testing; and DPS lab notes indicated that
notwithstanding Mr. Cooks February 15, 1999 plea, DNA testing will proceed per the States
request as planned. When the results of the DNA testing on the semen were reported in April
1999 and inculpated Mayfield, however, testing on the hair from Ms. Edwards buttocks was
halted. The State then dispatched Tyler police to retrieve the hair from DPS custody. They did

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nothing with the hair or any other item of evidence for more than two years, until the State of
Texas passed a law requiring the preservation of evidence, and allowing Mr. Cook to request
DNA testing for the first time since his conviction. Just a few months after Chapter 64s
enactment, Tyler police requested, and received, permission to destroy certain items of evidence,
specifically including the still-untested hair from Ms. Edwards buttocks.

(The District

Attorneys Office was listed on the official Tyler P.D. paperwork that authorized the
destruction, through a separate attachment that has yet to be disclosed to Mr. Cook.) Thus, at the
time the hair was destroyed, Smith County officials had not only previously asserted on record
that conducting a DNA test on the hair could provide critical evidence on the question of guilt or
innocence, but they also (1) knew that the other item of evidence they had DNA tested the
semen from Ms. Edwards torn underwear had exculpated Mr. Cook, and inculpated Mayfield,
and (2) for the first time since the entry of Mr. Cooks plea, he now had a statutory vehicle to
compel the State to complete the testing on the hair they had initiated, but then halted, in 1999.
C. Similar Cases
Given this history, Mr. Cooks due process claim is stronger than virtually any of the
reported cases nationwide in which courts have granted relief Trombetta, Youngblood, or related
authorities. For that reason, these courts application of due process principles strengthens and
aids in the resolution of Mr. Cooks claim.
For example, in Sparks v. State, 759 P.2d 180 (Nev. 1988), the Nevada Supreme Court
granted post-conviction relief to a defendant convicted of murder, but who claimed self-defense
in the shooting; reversal was premised in part on the states failure to preserve the firearm used
in the shooting, which prevented the defense from independently re-examining it to see if any
biological material was present that could conceivably have supported its case. The court found

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that the State could have reasonably . . . anticipated that reexamination of the weapon would
be exculpatory and material to appellants defense, even though the States own, initial
examination had yielded no such evidence, because the State had conceded that it is possible
there were blood or prints on the gun tending to support the defendants case theory. See 759
P.2d at 181-82 (internal citations omitted). This is an even lesser showing than in Mr. Cooks
case, where the States initial examination of the hair from Ms. Edwards buttocks had already
yielded highly exculpatory evidence (that the hair was not from Mr. Cook, nor the victim)
consistent with his original defense. In addition, the Sparks court found that a reasonable
inference of bad faith was demonstrated by the fact that (1) the State was on notice, from its prior
examination of the weapon, that there was nothing inculpatory against the defendant found; and
(2) the weapon was not preserved in accordance with standard department policy. See id. Again,
this is not nearly as strong as the showing in Mr. Cooks case, because the States examination of
the hair was already exculpatory, and it was destroyed in direct violation (and suspiciously soon
after the enactment) of a state statute mandating its preservation.
Similarly, in Roberson v. State, 766 N.E.2d 1185 (Ind. 2002), the Indiana Supreme Court
found that the State had destroyed materially exculpatory evidence in violation of due process
(and thus, that no showing of bad faith was required under Youngblood) when it failed to
preserve a device found in the defendants prison cell that he had allegedly fashioned into an
unlawful weapon. Because it was undisputed that the materials used to make the alleged weapon
were ones he was entitled to possess under prison rules, the court found that the State was on
notice of the evidences value to the defense even though the States destruction precluded a
full examination of the item to see if in fact it was, or was not, a weapon designed to harm
another in violation of prison rules. See 766 N.E.2d at 1188-90. Even though correction

81

officials had testified that they had personally examined the seized item and believed it was an
unlawful weapon, the court found that the subjective opinions of three government officials
was no substitute for preservation of the actual item, and thus that it qualified as possess[ing] an
exculpatory value . . . that was evident to the State prior to its destruction. Id. at 1189-90.
Surely, the States failure in Mr. Cooks case to preserve a hair already known to come from a
foreign source, after its own prosecuting attorneys took the public position that testing the hair
with objective DNA science could be critical to the outcome of Mr. Cooks murder trial, is an
even more compelling record than was found sufficient to reverse the judgment in Roberson.
Other cases provide similar guidance. See, e.g., United States v. Elliott, 83 F.Supp.2d
637, 641-642 (1999 E.D. Va.) (even though defendants fingerprints were on glassware allegedly
used to make methamphetamines, Youngblood satisfied because (1) glassware was potentially
exculpatory since unperformed tests could have shown residue was from another fluid, which
would exculpate, and (2) law enforcement offered no credible, good faith reason for destroying
the item, and destruction was not done according to policy); State v. Stuart, 907 P.2d 783 (Idaho
1995) (relief granted based on states failure to preserve unredacted logs of calls made by client
from jail, which potentially may have shown that inculpatory information intercepted by State
was made during attorney-client calls, which could have provided a basis for suppression); State
v. Benson, 788 N.E.2d 693 (Ohio Ct. App. 2003). (relief granted based on failure to preserve
videotape of traffic stop in DUI case; bad faith found because police officer gave evasive and
inconsistent information about existence and location of tape prior to and at evidentiary hearing);
People v. Alvarez, 229 Cal. App.4th 761 (2014) (relief granted based on failure to preserve
surveillance video of crime scene; bad faith found even though contents of video were unknown,
but bad faith found because other recordings showed that defendant had asked for videotape and

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insisted it would exculpate him, and State was on notice that defense counsel sought to examine
video but failed to preserve it).
Unless the State concedes Mr. Cooks entitlement to Youngblood relief, or this Court
finds relief so plainly warranted as to grant it summarily without a hearing, there are numerous,
specific factual questions to be addressed at such a hearing. The States documentary production
to date reflects that D.A. Skeen and/or ADA Dobbs may have been personally consulted in 200102 prior to the destruction of this evidence (see Exh. N: States Chain of Custody Report, filed
April 27, 2012), and there is no question that Mr. Skeen was District Attorney at the time of its
destruction. It is also clear that they personally knew of the exculpatory value of the hair at the
time they instructed DPS to begin testing on this item on February 8 and February 15, 1999, just
prior to Mr. Cooks February 16th plea hearing. Yet DPS files reflect that the DAs office
appears to have instructed DPS to cease DNA testing on the hair (which it had requested, then
said to proceed with notwithstanding the plea), sometime between the date of Mr. Cooks plea
and the issuance of the April 8, 1999 DNA report inculpating Mayfield as the semen donor.
Tyler police were then sent to retrieve the hair on May 20, 1999.
However, between May 20, 1999 and December 1, 2001, it appears that no steps were
taken by the Tyler Police or the District Attorney to destroy any of the evidence in this case,
including the hair. But then, on April 5, 2001, Chapter 64 was enacted, and Mr. Cook had a new
statutory right to seek a DNA test on the hair and other evidence. A few months later, Smith
County officials authorized destruction of the hair, which was carried out in January 2002.
Why was it that only after a statute was enacted allowing Cook access to biological
evidence for DNA testing did Smith County Officials decide to destroy the evidence?

Who

halted the DNA testing that was already ordered to begin on the hair in 1999, and why? What

83

discussions were had among Smith County officials regarding this destruction, and what role did
the enactment of the new statute have in the decision to destroy evidence? Why was the hair
among the particular items singled out for destruction, when Smith County police and
prosecutors had specifically been told it appeared to have a root that was suitable for DNA
testing? Who made the determination as to which items to destroy, and who approved those
decisions? These are all questions to be resolved at a hearing on this writ application.
In addition, under Youngblood, the court shall also consider as part of the bad-faith
inquiry any evidence of improper motive by State officials who authorized and/or knew of the
destruction of the evidence, such as personal animus against the defendant or a desire to prevent
the defendant from obtaining evidence that might be useful. Ex Parte Napper, 322 S.W.2d 202,
238 (Tex. Crim. App. 2010). In Napper, the CCA found no such evidence of animus on the part
of the laboratory officials who failed to preserve extracted material from their previous DNA
testing. The analysts had no history of prior misconduct or malfeasance, and in Napper, the
defendant was not even a suspect at the time the evidence was disposed of by the lab. This is
obviously in marked contrast to Mr. Cooks case, in which Mr. Skeen and Mr. Dobbs, as well as
other Smith County officials such as Sgt. Eddie Clark, had a long and well-documented history
of misconduct against Mr. Cook as found by the CCA. Mr. Skeen also personally secured a
wrongful conviction and prior death sentence against Mr. Cook before it was reversed by the
CCA; he also told the media that he was not happy about the no-contest, no-admission plea in
February 1999 and that he was personally still certain Mr. Cooks alleged guilt. 39 Thus, there are
ample questions of motivation and animus (specifically, these officials personal desire to
prevent Mr. Cook from securing his legal exoneration, including after the Legislature enacted
See Exh. PP: Pete Slover, Cook pleads no contest, leaves court a free man: Lesser Charge of
murder averts 4th trial in 77 case. The Dallas Morning News. February 17, 1999.
39

84

Chapter 64) that Mr. Cook is entitled to develop, and which this Court must consider and
resolve, at an evidentiary hearing on his due process claim.

GROUND FIVE
Mr. Cook's due process rights were violated by the presentation of false testimony from
James Mayfield.

ARGUMENT
The Due Process Clause of the Fourteenth Amendment is violated when the state
knowingly or unknowingly uses false, perjured, or misleading testimony to obtain a conviction.
Under Ex parte Chabot, 300 S.W.3d 768, 770-71 (Tex. Crim. App. 2009), whether the
prosecutor knows the witness is committing perjury is not dispositive. Even if the prosecutor did
not know of the perjury, due process is violated when new evidence emerges that reveals the
falsity of the witness earlier testimony. Indeed, in Chabot itself, the CCA granted relief based
on DNA testing under Chapter 64 which showed that a key States witness and original suspect
had falsely denied having sex with the victim at time of her murder, even though, the court
found, there was no evidence prosecutors knew of the perjury at the time the witness testified.
See id.; see also Ex parte Napper, 322 S.W.3d at 242 (Tex. Crim. App. 2010). The term
"perjury" in this context requires proof that the testimony "gives the trier of fact a false
impression," but it does not require proof of the elements of "perjury" as that term is defined in
the penal code. See Ex parte Ghahremani, 332 S.W.3d 470, 477-78 (Tex. Crim. App. 2011); see
also Napper, 322 S.W.3d at 242 (citing Estrada v. State, 313 S.W.3d 274, 287) (Tex. Crim. App.
2010) ("[W]e held on direct appeal that false testimony that was not perjury resulted in a due

85

process violation when there was a fair probability that [the] death sentence was based upon . . .
incorrect testimony.'").
The DNA testing disclosed only after Mr. Cooks plea (in written reports from April
1999, and with more advanced methodology in 2014) provides such grounds for relief. At Mr.
Cooks trials, James Mayfield testified repeatedly that his sexual relationship with Linda Jo
Edwards had ended several weeks prior to her murder. Based on this testimony, the State argued
to the jury that Mayfield and the victim had nothing but a nonsexual friendship at the time of
her death and he had no motive to harm her. Mayfield also falsely denied being with Ms.
Edwards the night of her murder. However, the DNA testing provides scientific evidence from
which a jury could and would find that this testimony was false, because the underwear torn
from Ms. Edwardss body by her killer clearly have Mayfields seminal fluid on them, which
was present in sufficient quantities to yield his near-complete DNA profile fully 37 years after
the fact. As discussed supra, because of the critical role that Mayfields credibility played in the
States case, and because the DNA evidence would have led the jury to doubt the truthfulness of
anything Mayfield said, the impact of his false testimony was certainly material within the
meaning of the Due Process Clause, i.e., there is a reasonable probability that . . . the result of
the proceeding would have been different. Kyles, 514 U.S. at 433. Thus, habeas relief under
art. 11.07 is appropriate here.

POTENTIAL LACHES QUESTIONS

This is Mr. Cooks first and only application for a writ of habeas corpus under art. 11.07
and art. 11.073 since his 1999 conviction. The following is submitted in anticipation of a
question of laches being raised:

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The Court of Criminal Appeals' opinion in Ex parte Perez, 398 S.W.3d 206 (Tex. Crim.
App. 2013) discussed the concept of laches as applied to writ applications. Laches does not
apply to Cook's case for the following reasons:
1.

Laches is a procedural bar to consideration of the merits of the claims in the writ

application. In this case, Mr. Cook has demonstrated his actual innocence in a way that allows
consideration of the writ grounds, regardless of the application of any procedural bar.
In addition to the showing of actual innocence made under Ground One of the writ
application, Mr. Cook has demonstrated actual innocence under the lower standard of Schlup v.
Delo, 513 U.S. 298 (1995). A Schlup claim, as contrasted with the Herrera-Elizondo (Ex parte
Elizondo, 947 S.W.2d 202 (Tex. Crim. App. 1996)) claim of actual innocence raised in the writ
application, is one that does not by itself provide a basis for relief, but allows a court to consider
otherwise-barred claims of constitutional error that may render a persons conviction
constitutionally invalid. See Ex parte Allen, 366 S.W.3d 696 (Tex. Crim. App. 2009). The proof
necessary to satisfy Schlup is lower than that for an Elizondo claim. As explained in Allen, under
Schlup, the petitioner must show that he is probably actually innocent, meaning that it is more
likely than not that no reasonable juror would have convicted him in light of the new evidence,
while Elizondo requires that this showing be made by clear and convincing evidence. See id. at
705. Regardless of the courts resolution of Mr. Cook's Elizondo actual innocence claim, there is
no question, that in light of the new evidence, particularly the DNA evidence implicating
Mayfield, it is more likely than not that no reasonable juror would have convicted Mr. Cook.
Because laches is akin to a procedural bar argument, a showing of actual innocence under this
Schlup standard defeats the laches claim.

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2.

Mr. Cooks writ application is based on newly discovered and available evidence.

This includes the new DNA testing which was not completed until 2015, and which was
conducted pursuant to a statute (Chapter 64) that was not in existence at the time of Mr. Cooks
1999 conviction.
3.

Mr. Cook's writ application is based on newly available legal grounds. Ex parte

Chabot, 300 S.W.3d 768 (Tex. Crim. App. 2009) established, for the first time, that false
testimony presented by a states witness with or without the knowledge of the prosecutor is a due
process violation; this claim is the basis for Ground Five of Mr. Cooks writ. In Ex parte
Chavez, 371 S.W.3d 200 (Tex. Crim. App. 2012), the Court recognized that the ground for relief
identified in Chabot was a new legal basis for a writ, such that the general prohibition on
subsequent writs did not apply.
Additionally, Tex. Code Crim. Proc. art. 11.073, became effective on September 1, 2013
and was amended in 2015 to expand and clarify its scope. This established a new ground for
relief based on new scientific evidence, which Mr. Cook asserts as Ground Two of this writ.
This was a ground for relief that was not available prior to the effective date of the statute. See
Ex Parte Robbins, No. WR-73,484-02, (Tex. Crim. App. Nov. 26, 2014) (not designated for
publication) (pet. for rehearing pending).
4.

Mr. Cook is likely to prevail on the merits. In Perez, the court recognized that if a

habeas applicant is reasonably likely to prevail on the merits, laches may not apply.
5.

Moreover, the State will not be materially prejudiced as a result of any arguable

delay. There is new evidence of innocence and new legal grounds for the granting of this writ
application. The fact that the state will be precluded from relying on the false testimony from
Mayfield in the future is not the type of prejudice anticipated by the laches case law. Indeed

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and perhaps most fundamentally the State itself sought and was granted additional DNA testing
in 2012-13 under Chapter 64, thereby conceding the relevancy and timeliness of Mr. Cooks
claim of actual innocence and related challenges to his convictions. Having sought additional
DNA testing (at considerable expense to Smith County taxpayers) which yet again failed to
inculpate Mr. Cook and, indeed, only excluded him as the source of DNA found on every item
tested the State cannot now seek to bar Mr. Cook from having a court adjudicate the merits of
his DNA-based claims for relief.

NECESSITY FOR AN EVIDENTIARY HEARING ON THIS WRIT APPLICATION

This writ application raises significant factual questions that can only be resolved with an
evidentiary hearing. Under Art. 11.07, Tex. Code Crim. Proc., the court should find that there
are previously unresolved facts existing and order an evidentiary hearing to resolve these facts.
At this hearing, Smith County prosecutorial officials such as Jack Skeen and David Dobbs
should be required to testify and answer questions concerning the issues raised in this case. It is
only through live testimony from these officials, in which the district court can observe their
testimony and judge their statements based on their demeanor and credibility, can these factual
issues be resolved.
In Ex parte Byars,176 S.W.3d 841 (Tex. Crim. App. 2005), Judge Keller, in a concurring
opinion, joined by Judges Hervey and Cochran, stated:
"The Confrontation Clause reflects a judgment about how the reliability of
testimony can best be determined. The Clause commands that reliability be
assessed by testing in the crucible of cross-examination.
. . .
. . . adversarial testing is the constitutionally prescribed method of assessing
reliability, and 'it beats and bolts out the Truth much better' than the procedure
used here."

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This Court should follow the guidance of Judge Keller and set this case for an evidentiary
hearing at which the prosecutors and others who may have engaged in the misconduct alleged
here can be subjected to the crucible of cross-examination. After this evidentiary hearing, Mr.
Cook respectfully submits that the Court will conclude that he is actually innocent; that his due
process rights were deliberately and repeatedly violated by Mr. Skeen, Mr. Dobbs and other
members of the prosecution team; and that this conviction must be vacated, and his indictment
dismissed with prejudice.
Respectfully submitted,

____________________________________
GARY A. UDASHEN
Texas Bar No. 20369590
BRUCE ANTON
Texas Bar No. 01274700
SORRELS, UDASHEN & ANTON
2311 Cedar Springs Road
Suite 250
Dallas, Texas 75201
214-468-8100
214-468-8104 fax
www.sualaw.com
(Appearing on behalf of the
Innocence Project of Texas)
- and NINA MORRISON
BARRY SCHECK
(Appearing pro hac vice)
INNOCENCE PROJECT, INC.
40 Worth Street, Suite 701
New York, New York 10013
214-364-5340
214-364-5341 (Fax)
Co-Counsel for Kerry Max Cook
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CERTIFICATE OF SERVICE
The undersigned hereby certifies that a true and correct copy of the foregoing Applicant's
Memorandum in Support of Application for Writ of Habeas Corpus Seeking Relief From Final
Felony Conviction Under Code of Criminal Procedure Art. 11.07 and Art. 11.073 was mailed to
Michael West, Assistant District Attorney, Smith County District Attorneys Office, 100 N.
Broadway, Tyler, Texas 75702, with a courtesy copy also delivered by electronic mail, on this
the ___ day of __________________, 2015.

____________________________________
GARY A. UDASHEN

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