the plea
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kerry max cook: texas
In this death penalty case, the accused faced a dramatic choice: He could accept a guilty plea with an immediate release, or he could go to trial and face possible execution.

With Cook refusing to plead guilty and the prosecutor afraid to lose the trial but not willing to dismiss the case, there was one more possible option.

Kerry Max Cook was arrested in August 1977 when he was 21 years old. He was charged with the brutal murder and rape of 21-year-old Linda Jo Edwards, in Tyler, Texas. One year later he was tried, convicted and sentenced to death.

After 13 years on death row where he was abused and raped and twice tried to commit suicide -- the second time leaving a note saying "I really was an innocent man" -- his sentence was reversed, based on a technicality. That's when Paul Nugent became his lawyer. The new trial, with a new D.A., took place in 1992 and resulted in a hung jury.

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Cook's Mug Shot

The state then retried the case once more. The death penalty was reinstated.

Then, once again in 1996, the Texas Court of Criminal Appeals reversed the conviction. The court also published a scathing critique of the conduct of both the police and prosecution going back to the first trial in 1978. They wrote that the investigation was intentionally misleading, the testimony of the key witness, Robert Hoehn, was prejudicial, and the first conviction was obtained through fraud and in violation of the law.


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Death Row

Even the then-new first assistant D.A., the man who fiercely prosecuted Cook in the last two trials, David Dobbs, agreed with the court of appeal's critique, telling FRONTLINE that Cook's prosecution "was mishandled from the start." Yet that didn't deter Dobbs from continuing to press for Cook's prosecution.

Dobbs wanted to use the final chance of a fourth trial to convict Cook. But this time he had to do it without the testimony of his key witness. As Dobbs told FRONTLINE, "The Texas Court of Criminal Appeals ... had ruled that we could not use the testimony of the man that was with Mr. Cook just prior to the commission of the offense, based on prosecutorial misconduct that had taken place in the 1970s. Without that testimony we could not place Mr. Cook at the crime scene the night that the actual capital murder took place."

The irony was that the testimony of the witness, Robert Hoehn, who had died in the meantime, was the example cited by the Texas Court of Criminal Appeals as prejudicial and contradictory. The prosecutor weighed his options. He could go to trial with what he felt was a weak case. He could try to get Cook to take a guilty plea. Or he could dismiss the case.

Dobbs offered Cook a plea -- plead guilty to time served and he would get out and his case would be over.

Nugent, Cook's lawyer since 1991, told FRONTLINE, "Kerry looked me in the eye and said, 'I want to be free, I want this behind me, but I will go back to death row, I will let them strap me to the gurney and put the poison in my veins before I lie, before I plead guilty.'"

With Cook refusing to plead guilty and the prosecutor afraid to lose the trial but not willing to dismiss the case, there was one more possible option. The Supreme Court decided in 1970 that the Constitution allows for a defendant to make a deal and plead guilty, while still maintaining his innocence. Such a plea is called an Alford Plea or a "no contest" plea.

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Cook in Court

The prosecutor felt he had little choice. He offered Cook the no contest plea, which means that Cook can maintain his innocence while knowing the court has convicted him. It is the only time it has ever happened in a death penalty case in Texas.

"It was the hardest decision we've ever had to make," says Dobbs, "but unfortunately, we were faced with the choice of doing something that would ensure that he was convicted of murder, or running a very, in my opinion, substantial risk that without the testimony of Bob Hoehn he would walk the streets free from this."

Paul Nugent says, "They couldn't admit they had made a mistake, they couldn't admit that perhaps the State of Texas almost executed an innocent man."

Cook had to make his decision. He told FRONTLINE, "Paul Nugent said, 'We could win it Kerry, I think you will be acquitted this time.' And I heard that before. I gave them 22 years. I just didn't want to give 'em anymore. Too much."

Cook took the no contest plea.

Two months after Cook took the no contest plea and 22 years after the murder, the results came out of a DNA analysis of a semen stain found on the victim's panties - panties which had been discovered prior to the scheduled date of the fourth trial. The DNA did not match Cook's.

The prosecution says the finding was not exculpatory and that Cook was and remains guilty. Says David Dobbs, "The important thing for us was to insure that he got a conviction for murder that would follow him for the rest of his life."

Cook feels the conviction does follow him. Married and with a young child, he says the state of Texas granted him his freedom, but neither his dignity nor piece of mind.

"Say one of my tail-lights goes out, and I'm unaware of it and the police pull me over," he explains. "They run that license plate and first of all, they don't get out of their car until they've got two or three more backups. I'm sitting there waiting, look in the rearview mirror, saying I know what's going on, but I wonder how bad this is going to be, because I'm Kerry Cook with a capital murder conviction, so let's get out and spread 'em. 'Do you have any knives, have any guns, have any drugs…?' I don't have any rights left. It's a very very traumatic ordeal. So, you know, was it worth it? Sometimes when I'm holding my son I can say yes. Sometimes, when I'm by myself, I say no. They won."


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posted june 17, 2004

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