Kerry Max Cook - Texas, 1977

True Stories of Injustice...

Kerry Max Cook - Texas, 1977

Kerry Max Cook, an innocent man, is currently spending his eighteenth year on death row for the 1977 murder of a Texas woman which he did not commit. This despite the fact that, through the tireless efforts of CM and Cook’s attorneys, NACDL members Paul Nugent, Chris Flood and Mike DeGeurin, virtually every item of evidence upon which Cook’s original conviction was based has been discredited. Cook was originally convicted in part because a jailhouse snitch testified that Cook confessed to him about the killing. However, subsequent to the first trial, the rat recanted his testimony. He also admitted that in exchange for testifying against Cook, the D.A. reduced his murder charge to involuntary manslaughter and almost immediately granted his release from prison for time served. The D.A. purposely hid this crucial fact from Cook’s original trial lawyer.

The prosecution also presented evidence of Cook’s fingerprints found on the outside of the victim’s sliding glass door. But there was a verifiable explanation for this: Cook lived across from the victim’s apartment in the same residential complex and was admittedly fond of viewing her through her window as she undressed. On one occasion, Cook became so engrossed that he decided to move in for a better look, whereupon he stepped up to the victim’s patio sliding glass door and left his fingerprints on the glass. Also, on a separate occasion, Cook was invited into the victim’s home for a visit.

A local Tyler, Texas police officer testified at Cook’s original trial that he determined Cook left his fingerprints on the victim’s glass door within 8 to 12 hours prior to the murder. However, after the trial the officer also recanted his testimony. He conceded that it is impossible to calculate the age of fingerprints and further admitted that the D.A. directed him to lie.

The victim’s roommate, Paula Ruldolph, identified Cook as the man she saw standing near the victim’s bedroom on the night of the killing, just hours before she discovered the victim’s mutilated body inside. However, Ruldolph’s trial testimony directly contradicted her preliminary hearing testimony and her initial statements to the police, wherein she identified the man she saw that night as a middle-aged, medium-length silver haired man whom she believed resembled the victim’s then married secret lover. Cook was then just 21 years old with long black hair down to his shoulders.

There was additional strong evidence pointing to the victim’s lover as the real killer which was not revealed at trial. Within weeks prior to the murder, the victim attempted suicide upon public disclosure of their affair. During the same period of time, the man’s 16-year-old daughter threatened to kill the victim unless the affair was immediately broken off.

In late 1992, Cook was granted a retrial after his death penalty sentence was reversed on appeal. Under Texas law a penalty phase reversal generally requires a full retrial. The jury hung six-six at the retrial in large part because of the above-described discrepancies in the prosecution’s case. Moreover, the jury also made a shocking discovery during their deliberations. The prosecution had always contended that Cook stole the victim’s stockings during the murder and therefore that piece of clothing was never found. Cook’s supposed theft of the stockings served as the predicate offense for his felony-murder charge, which qualified him for the death penalty under Texas law. However, when the jurors examined the pair of bloody jeans which the victim wore at the time of her death, they found one leg of the victim’s stocking lodged inside the pant leg. The discovery of the stocking, which had been thought missing for over 14 years, directly contradicted a crucial aspect of the prosecution’s theory of the case.

A second retrial was held in January 1994. Unfortunately, Cook was again convicted, this time primarily because of the trial judge’s highly questionable (and in some instances indefensible) evidentiary rulings. The prosecution presented three witnesses who testified that during the days preceding the murder, Cook made remarks to them about the victim’s attractive physical appearance. However, the trial judge refused to allow Nugent to cross-examine and elicit from these witnesses the remaining portion of what Cook told all of them, which was that on a prior occasion Cook also visited the victim’s apartment at her invitation.

This was crucial exculpatory evidence which would have helped rebut the incriminating implications of Cook’s fingerprints found at the victim’s apartment. But, the trial judge excluded this testimony as inadmissible hearsay. The court also refused to admit the entirety of Cook’s remarks under the evidentiary completeness doctrine. Texas law, like the Federal Rules of Evidence (FRE), has a well-established evidentiary rule which authorizes the court to admit any other portion of a statement introduced by one party which “ought in fairness . . . be considered contemporaneously with it.”20

Moreover, the trial judge allowed the prosecution to present irrelevant and prejudicial evidence. This included testimony that Cook may have previously performed mutual masturbation with another man. The prosecution insinuated in its argument that Cook was a homosexual who killed the victim out of a jealous misogynic rage.

The prosecution also presented the “expert” forensic psychiatric testimony of David Gomez, then a two-year rookie FBI forensic psychiatrist, who stated that this was a stranger-on-stranger killing committed by a lustful outsider. The trial judge barred the defense from introducing the crucial expert testimony of Dr. Robert Ressler, a noted forensic psychiatrist who directed the FBI’s special homicide forensic psychiatric department for 16 years and is recognized as the foremost expert in his field. Ressler was prepared to testify that the gruesome manner in which the victim was killed indicated that her attacker was someone with whom she had had an intimate relationship. Since it was undisputed that Cook did not know the victim very well, Ressler’s testimony would have further directed blame away from Cook and toward the real killer — the victim’s lover.

The judge excluded Ressler’s testimony because the defense had sent him daily transcripts of the prosecution expert’s trial testimony. This was a supposed violation of a local Texas rule which barred witnesses from pre-viewing the trial testimony of witnesses presented by the other party. The judge so held despite the fact that the rule clearly exempts expert witnesses, who are allowed to prepare for their testimony by reviewing trial evidence. The significance of this evidentiary ruling was underscored by the fact that the jury, during its 4H days of deliberation, specifically asked the court to read back virtually the entirety of the prosecution expert’s trial testimony.

This new conviction is truly devastating. However, both Nugent and McCloskey have vowed to keep fighting to establish Cook’s innocence. An appeal of the second retrial is expected in the coming months.

National Association of Criminal Defense Lawyers (NACDL)
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