Kerry Max Cook remains in a “purgatory of uncertainty” while waiting for the Texas Court of Criminal Appeals to rule on the former death row inmate’s claim of actual innocence, his attorneys said.
Delaying a vacatur of criminal charges against him “serves no purpose other than to cruelly string Cook along,” according to a memorandum filed with the state’s highest criminal court.
The memo filed in April asked the court to promptly adopt a lower court’s ruling to set aside Cook’s rape and murder conviction; order Smith County’s district clerk to deliver missing parts of the court record; and approve an order of actual innocence by dismissing the indictment against him.
Cook spent about 20 years on death row for the 1977 murder of Linda Jo Edwards in Tyler. His conviction was overturned in 1991 and since then, he has experienced two additional trials, another conviction that was overturned and a plea agreement in which Cook was convicted of rape and murder in exchange for time served.
That conviction, however, was set aside in 2016 after new evidence revealed another possible suspect lied. Cook contends that evidence proves he is not the killer.
A visiting judge denied Cook’s claim of innocence, determining a reasonable juror still could convict him of murder despite the new evidence.
James Mayfield, who was having an extramarital affair with the victim, admitted he previously lied under oath when he testified he and Edwards had not engaged in sexual activity for at least a week before her death.
Mayfield’s confession came after tests revealed his DNA on the victim’s underwear. He told prosecutors in 2016, he and Edwards had sex the day of her murder. Mayfield died in 2019.
In the 42-page memo, defense attorneys Glenn Garber and Rebecca Freedman outline evidence they say proves Mayfield is the actual killer. The attorneys work for The Exoneration Initiative, a non-profit organization that assists people they believed have been wrongfully convicted.
Visiting Judge Jack Carter ruled the new evidence — Mayfield’s admission — addressed only the question of who had sex with the victim, not necessarily who killed her. That ruling has been under review for six years.
Graber contends Carter failed to “conduct a thorough and comprehensive review of the records.”
A final ruling on the issue appears to have stalled while appellate judges wait for trial exhibits from the Smith County District Clerks office ordered in 2019. In reviewing case documents, the appellate court determined some exhibits had not been included in the materials needed to evaluate Carter’s ruling.
Smith County District Attorney Jacob Putman said he believes the missing exhibits have been forwarded to the Austin court but deferred confirmation to District Clerk Penny Clarkston. Efforts to reach Clarkston through multiple messages left by The Tyler Loop over a two-week period were unsuccessful.
A reporter did speak to Chief Deputy Clerk Gina McClung who said she would attempt to determine if the exhibits had been sent, but she has yet to contact The Tyler Loop. An email sent to McClung received an automatic message that she would be out of the office.
Waiting is nothing new for Cook, whose appeal of his initial conviction took nine years to decide. The court battles in his case span more than four decades.
“Cook humbly and respectfully requests that this Honorable Court, once and for all, set him free from his shackles to this horrible crime he did not commit, declare him actually innocent and dismiss the indictment. It is time to finally put an end to this 45-year nightmare,” Graber said in the April memo to the court.
Editor’s note: Graber and Cook contacted The Tyler Loop after an article about this case was published on July 17. Cook declined an interview request for that article. Graber also has not responded directly to a reporter’s telephone message or email.
Vanessa E. Curry is a journalist with nearly 35 years of experience as a writer, editor and instructor. She earned a B.S. degree in Mass Communication from Illinois State University and a MSIS degree from The University of Texas at Tyler with emphasis on journalism, political science and criminal justice. She has worked newspaper in Marlin, Henderson, Tyler and Jacksonville, Texas as well as in Columbia Tennessee. Vanessa also was a journalism instructor at the UT-Tyler and Tennessee Tech University. Her writing has been recognized by the State Bar of Texas, Texas Associated Press Managing Editors, Dallas Press Club, and Tennessee Press Association. She currently is working on publishing two books: “Lies and Consequences: The Trials of Kerry Max Cook,” and “A Gold Medal Man, A biography of Kenneth L. “Tug” Wilson.
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