Framed

10

Ressler looked at this homicide differently.

He classified it as a domestic homicide, most likely perpetrated by a former lover of the victim.

He saw clear evidence of “extensive overkill,”

which is frequently present in domestic homicides.

The wounds indicated extreme fury toward Linda.

The heavy vaginal damage denoted a previous relationship that drove the killer to destroy the area of his interest in her that had caused his own destruction.

Ressler rejected the idea that this was a lust murder motivated by sexual inadequacy or ambivalence, neither of which he had ever encountered as motivation for a mutilation murder.

He was also prepared to testify that persons who engaged in voyeurism, or who were allegedly peeping Toms, were not confrontational and did not perpetrate violent sexual homicides.

But Ressler’s crucial testimony would never be heard by the jury.

During his voir dire, the preliminary examination by a judge to determine a witness’s suitability to testify, Ressler told the judge that, as part of his preparation, he had read Gomez’s testimony on the plane ride down from Virginia.

Because of that, Judge Jones barred him from testifying, erroneously declaring that Ressler had violated the rule that prohibits witnesses from learning opposing witness testimony before they testify.

Paul correctly pointed out that Texas evidentiary law prevented fact witnesses, not expert witnesses, from learning the opposition’s testimony beforehand.

It was perfectly acceptable as a matter of practice and case law for experts to review the testimony of their opposite number prior to testifying.

Judge Jones, however, refused to concede the point.

He dismissed Robert Ressler from the witness stand, leaving the jury with the impression that the FBI’s Behavioral Science Unit had one opinion of Linda’s murder—the opinion of Agent Gomez.

Skeen took full advantage of this.

In his summation he mentioned Gomez’s name numerous times, wrapping up with the words “What Dave Gomez was telling you is the key to this case.”

Judge Jones’s outrageous ruling had disastrous consequences for Kerry.

Deadlocked after several days of deliberation, the jury asked the court to read back Agent Gomez’s testimony.

A half hour after this reading, on February 23, the jury found Kerry Max Cook guilty of capital murder.

The punishment phase lasted five days.

Paul fought long and hard to save Kerry’s life, but the result was predictable, considering the horrid nature of the crime.

The day of reckoning came on March 3, 1994.

Before sentencing, the judge asked Kerry if he had anything to say.

He responded, “Yes, sir.

With respect to the jury, with respect to the Court, I am an innocent man and the Lord forgive them, for they know not what they do.”

With that, Judge Jones sentenced him to death by lethal injection, just as Kerry had been sentenced sixteen years before.

After spending the last two years in county jails during the retrials, Kerry returned to death row a beaten and devastated man.

He was one month shy of his thirty-eighth birthday, but his hair had turned prematurely gray.

Meanwhile, Paul refused to give up.

In the face of formidable odds, he resolved to appeal the conviction to the Texas CCA.

At this point, he had been handling Kerry’s representation pro bono for nearly four years.

In recognition of Paul’s unwavering dedication, Centurion was able to raise enough money to sufficiently compensate him for his labors in preparing the appeal.

One year later, in July 1995, Paul Nugent filed a mammoth 213-page brief detailing sixty instances of systemic prosecutorial misconduct and egregious judicial exclusions of exculpatory evidence throughout all three trials.

Kerry couldn’t help but be impressed by his attorney’s efforts, but he had suffered one disappointment after another.

The CCA was considered at that time to be a predominantly conservative court.

The odds were heavily stacked against him.

The CCA, however, astonished everyone.

On November 6, 1996, it reversed Kerry’s conviction, excoriating the prosecution for its behavior and the trial courts for their exclusion of favorable evidence for the defendant.

Judge Charles Baird, in his concurring opinion, argued that a retrial of Mr.

Cook should be prohibited due to the fact that “prosecutorial misconduct has so tainted the truth-finding process that it renders a subsequent fair trial impossible.”

He wrote that the State had “allowed itself to gain a conviction based on fraud and ignored its own duty to seek the truth”

and that “the State’s misconduct in this case does not consist of an isolated incident or the doing of a police officer, but consists of the deliberate misconduct by members of the bar representing the State.”

He found that “the Illicit manipulation of the evidence on the part of the State permeated the entire investigation of the crime.”

The majority opinion written by Judge Stephen Mansfield vacated the conviction but fell short of precluding a retrial.

He found that “prosecutorial and police misconduct have tainted this entire matter from the outset.”

He rebuked the trial court for prohibiting the defense from introducing the “highly exculpatory”

grand jury testimony of witnesses that offered an innocent explanation for how Kerry’s prints got on the patio door.

Perhaps most significantly, the majority ruled that if the prosecution decides to retry Cook a fourth time, the court must exclude from evidence all statements made by the now deceased Robert Hoehn.

Consequently, his tawdry yet mostly fictitious tale of steamy sex and graphic voyeurism on the night of the murder was now strictly off-limits.

So once again, this time to await his fourth trial, sheriff’s deputies transported Kerry back to the Smith County jail from death row.

It was August 6, 1997, twenty years and one day since his August 5, 1977, arrest.

A chastened, but increasingly hostile, Judge Jones set a $100,000 cash bond at a November 11 bond hearing, believing along with Skeen that this amount was well beyond Kerry’s defense team’s ability to meet.

Two days later, Jay Regan, Centurion’s board chairman and a Wall Street investor, wired $100,000 to the Smith County sheriff’s office, much to the shock and dismay of Jones and Skeen.

(Regan, trusting Kerry, knew he would get the money back so long as Kerry honored the terms of his release.)

Later that day, November 13, 1997, Kerry Max Cook walked out of the Smith County jail into the arms of his mother, Evelyn.

His newfound freedom was exhilarating.

But he was also scared, as he knew his battle with Smith County was far from over.

Amid the sidewalk celebration, with reporters and cameras all around, Kerry, Paul, and I spotted David Dobbs standing across the street, glaring at us.

From prison, Kerry had developed a friendship with Dallas residents Mikaela and Richard Raine, who believed in his innocence.

They generously invited him to live with them and their four children while he was awaiting trial, even giving him a Jack Russell terrier named Everton.

Dallas criminal defense attorney Donya Witherspoon hired Cook as her paralegal.

Soon he moved into an apartment on his own with Everton.

Urinalysis drug tests in Tyler were a condition of his bail.

His stomach churned every time he entered the town, fearing the police would set him up on some phony charge.

Instead, life handed Kerry a gift.

At a meeting of Amnesty International in Dallas, he met a lovely young woman named Sandra Pressey.

Before long, the two of them fell in love.

They have been life partners ever since.

On the eve of the February 1999 fourth trial, and despite the CCA ruling, prosecutor Skeen vowed not to rest until Cook was back on death row.

Dobbs added that they “would never allow him to plea, not even to a life sentence.”

They wanted to put Kerry Max Cook in the ground.

Centurion was equally committed to ensuring that Kerry’s fourth trial would be his last.

We knew he needed a well-heeled defense stocked with top-drawer forensic experts and a deep bench of legal talent to support Paul Nugent.

This was no time to spare expense.

A wealthy benefactor, David Gelbaum, stepped up and authorized a budget of $365,000.

Dallas attorney Cheryl Wattley and Houston attorney Rocket Rosen joined the team.

Eight different experts in the fields of eyewitness identification, visual environment, false confessions, forensic pathology, and psychiatry stood ready to offer their expertise.

Among them was Robert Ressler, godfather of the FBI’s Behavioral Science Unit.

As 1998 sped by, Judge Jones picked Bastrop, a largely rural county thirty miles southeast of Austin, as the site for the trial.

Jury selection would begin mid-February 1999.

The week before the trial brought potential new DNA evidence.

For the first time in the twenty-two-year history of the case, the prosecution had submitted Linda’s underwear to the state’s crime lab for examination.

Remarkably, the lab found semen stains large enough to obtain the donor’s profile.

With both sides agreeing, Judge Jones ordered DNA testing and the trial to proceed concurrently.

We expected the DNA results sometime during the trial.

Dobbs told the press that the semen “could only have been left by the killer.”

We agreed, confident it wasn’t Kerry’s and believing it was Mayfield’s.

Then there was more: Just days before the trial, the prosecution broke its vow never to allow Kerry to plead out.

Dobbs put a no-contest deal on the table, offering Kerry a forty-year sentence in exchange for a guilty plea.

Kerry rejected it out of hand.

Dobbs then proposed a deal that would give Judge Jones discretion to sentence Kerry to a term less than forty years.

Again, Kerry dismissed it out of hand.

There was no way he was going to entrust his future to Judge Jones.

Finally, on February 16, 1999, minutes before jury selection was to begin, Dobbs offered a no-contest deal that included a lesser charge (murder, but not capital murder), no admission of guilt, and a sentence of twenty years.

Since Kerry had already served the time, he could go home that day, a completely free man, with no supervision of any kind.

The only downside was that he would be a convicted murderer.

The judge gave him one hour to decide.

We all huddled back at the house Centurion had rented for the team.

We told Kerry that it was his life.

If he wanted to go to trial, we were ready.

If he accepted the plea, we could understand that as well.

He left the room and took a few minutes by himself.

We waited.

Then he came back in and announced his decision.

He was going to take the deal.

He had suffered so much trauma on death row that he could not face the risk of going back there to await execution yet again.

He chose guaranteed and immediate freedom, home with Sandra that night, rather than taking the chance of another conviction in an extremely conservative county with a hostile and vengeful judge.

That evening Kerry, Sandra, and the entire team celebrated at an upscale Austin restaurant.

Many of us had been fighting for Kerry for nearly ten years.

We took turns toasting each other.

We couldn’t wait to learn what the DNA results would be from the semen stains on Linda’s panties.

At last, on April 16, 1999, the state crime lab spoke.

The semen unquestionably belonged to James Mayfield, not Kerry Max Cook.

Mayfield had testified at both of the retrials in 1992 and 1994 that he had not had sex with his former lover following her suicide attempt three weeks before her murder.

While the district attorney’s office was stunned, David Dobbs still tried desperately to salvage his dignity.

He claimed that the DNA results didn’t necessarily clear Kerry of the crime.

Perhaps Mayfield’s semen had been deposited when Mayfield claimed he’d last had sex with Linda three weeks before, and survived three weeks of wear and laundering, an absurd hypothesis.

Before he had submitted the panties for DNA analysis, Dobbs had agreed, reasonably, that the semen had to belong to Linda’s killer.

Now, however, with the foundation of Kerry’s plea deal—and his office’s reputation—in question, he still insisted that Kerry was guilty, that the Tyler authorities had the right man, and that the new DNA evidence was “irrelevant.”

The DNA evidence reinvigorated Kerry, though.

It gave him new confidence and inspired him to take his exoneration to the world—literally.

He spoke eloquently about wrongful convictions, the ills of capital punishment, and the flaws of America’s criminal justice system to audiences in London, Paris, Rome, Geneva, and throughout America.

He became a sought-after motivational speaker, telling his story to inspire others to never give up, no matter how dire the circumstances.

Harvard, Princeton, and other universities welcomed him.

He testified before the Texas State Legislature in favor of a moratorium on the death penalty.

His story was one of six featured in the theater production The Exonerated, which opened in New York in October 2000, and ran in venues across the country.

His story was also adapted into a Hollywood movie by the same name, starring Aidan Quinn.

In 2007, William Morrow published his memoir, Chasing Justice .

To Kerry, however, his greatest accomplishment during these years was the birth of his son, Kerry Justice Cook. “KJ,”

as Kerry and Sandra call him, will be twenty-four in 2024.

Despite all the adulation and accolades, Kerry struggled in his life after prison.

He suffered from an acute case of PTSD and depression.

The murder conviction still plagued him and his family, making it difficult to find work and keep it, and to sign leases and other legal documents.

Occasionally, neighbors shunned him when they learned of his past.

These problems and his long-held, deep desire for legal exoneration finally inspired Kerry to act.

Exoneration by much of the public was not enough.

He wanted the Texas criminal justice system to officially recognize his innocence.

In 2012, the Innocence Project took up his cause, bringing together a team led by Gary Udashen in Texas and Nina Morrison in New York.

Three years later, in September 2015, they filed a writ of habeas corpus in Smith County, seeking to reverse Kerry’s murder conviction and obtain a finding of actual innocence based on the 1999 DNA results and systemic misconduct by police and prosecutors.

Their investigation uncovered a suspicious decision by the Smith County law authorities regarding a bloody hair found on Linda’s buttocks that was not Kerry’s or Linda’s.

In 1999, when the authorities in Tyler submitted the hair to the crime lab along with Linda’s underwear, the lab informed them that it, too, was suitable for DNA testing.

But soon after the lab found the semen to be a match to Mayfield, the district attorney’s office ordered the police to retrieve the hair follicle and not submit it for testing.