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paul nugent
The plea bargain was political cover for the prosecutors.  They had to save face.  They couldnt admit theyd made a mistake.

You've spent a lot of time on Kerry Max Cook's case.

I worked eight years on Kerry Max Cook's behalf [as his trial attorney]. … I tried the case twice, wrote two briefs, one went up to the Texas Court of Criminal Appeals. So I spent literally thousands of hours trying to vindicate Kerry.

Why did you believe he wasn't guilty?

The evidence just wasn't there. The evidence pointed to another suspect, and I was convinced that some day we'd be able to show he was innocent. It was a circumstantial case. There was no direct evidence. An objective analysis of the evidence pointed not to Kerry, but to another suspect. So it was not a strong case, I think, from the prosecution's standpoint.

He was sentenced to death twice.

That's correct. In 1988, Kerry was sentenced to death, and again in 1994, he was sentenced to death. I didn't realize when I got involved in the case the prosecutorial misconduct we were going to be up against. ...

What was the prosecutorial misconduct?

I got involved in 1991, after Kerry's first conviction was reversed by the United States Supreme Court and [the case was] sent back to Texas because Kerry had been illegally interrogated by a psychiatrist for the state. I got involved in preparation for the second trial and in preparing for the second trial in 1992, I learned that the prosecution had hidden evidence [and] had manufactured evidence. …

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Paul Nugent has been Kerry Max Cook's attorney since 1991. Here, he details the case's history, the prosecutorial misconduct he discovered after getting involved, and the stunning turn the case took when the state of Texas offered Cook a plea bargain just a few months before his fourth capital murder trial was set to start. But Cook refused to take a guilty plea and admit to a crime which he insisted he didn't do. He then was offered a "no contest" plea, which means he can maintain his innocence while knowing that the court has convicted him -- a very unusual concession in a capital murder trial. This interview was conducted on Dec. 15, 2003.

The prosecution had coerced an expert witness to give false testimony; specifically, the fingerprint expert gave false testimony at the behest and at the coercion of the prosecution. Another witness gave false testimony based on a secret deal he had with the prosecution. Some of the prosecution witnesses had given contradictory statements. The prosecution hid those contradictory statements so that we weren't able to expose that on cross-examination.

So the prosecution essentially hid evidence. They had manufactured evidence. They had intimidated an expert witness to give false testimony. ... It's easy to allege prosecutorial misconduct. It's often alleged. In Kerry Max Cook's case, we were able to prove it.

The Texas Court of Criminal Appeals, the highest criminal court in the state of Texas, found that police and prosecutorial misconduct tainted Kerry's case from [the] beginning. A federal court found ... years of substantial and egregious and systematic prosecutorial misconduct in Kerry's case. We're not talking about an isolated act. ...

That has been proven?

Sure, it's been proven. The prosecutorial misconduct has been found by the highest criminal court in the state of Texas, Texas Court of Criminal Appeals, and by the Federal District Court for the Eastern District of Texas.

How many trials did Kerry Max Cook have?

Kerry was initially convicted in 1978; that was reversed in 1991. He had a second trial in 1992; that was a hung jury: six for innocent, six for guilty. Kerry was tried a third time in 1994; the jury convicted Kerry and sentenced him to death. We were able to reverse that conviction in 1996 and Kerry was set for an unprecedented fourth capital murder trial in 1999.

Four trials?

In the state of Texas, we researched it and could not find another case where there had been four trials in a capital murder case.

Did police investigate another suspect?

The investigation was not thorough. The Court of Criminal Appeals found that the investigation was not designed to find the truth; the investigation was to convict Kerry. They singled out Kerry. They had a blind focus to convict Kerry and they ignored obvious evidence that pointed to the most legitimate suspect and the probable killer.

Why Kerry?

Kerry was a young kid, he was a drifter, he was a high school dropout, and his biggest sin in east Texas in the 1970s was he was allegedly homosexual. Kerry was branded as homosexual, and that was a large part of the prosecution's case against him. In my opinion, that should not even have been admissible. Someone's sexual orientation has nothing to do with whether or not they're guilty or innocent of a crime, but in east Texas -- it's a very religious community there, it's part of the American Bible Belt -- his alleged sexual orientation was a major strike against Kerry.

You're as sure of his innocence as the prosecutor was about his guilt.

Well, you know I felt very strongly that Kerry was innocent, and ultimately DNA, 22 years later, exonerated Kerry, so I'm confident Kerry is innocent. The DNA, when they finally did the testing 22 years after the murder, matched the person who is the obvious suspect. So I'm quite confident Kerry is innocent.

But Kerry wasn't exonerated.

Kerry has not been formally exonerated. Although he spent 21 years on death row, he's now home, he's married, he has a child, but he has not been formally exonerated. In Texas, where the death penalty is a very important part of the Texas criminal justice industry, it's very difficult to be exonerated. …

How did he get out?

… Kerry was convicted and sentenced to death in 1994. In 1996 the Texas Court of Criminal Appeals reversed the conviction. We began preparing for his fourth trial. The trial was set to start in early 1999, and while we were preparing for trial, a month or two before trial, we were approached by the Smith County district attorney's office, with a plea bargain offer.

Were you surprised?

I was shocked. Kerry had been billed as the most heinous criminal in the history of Tyler, Texas. Kerry had been crucified for his alleged sexual orientation. He had been the object of much scorn and ridicule in Tyler, and for the prosecutors, who for years had been trying to kill Kerry, to approach us with a plea bargain offer shocked us. …

What happened?

The prosecutor offered that if Kerry would plead guilty, he'd get out, his case would be over with. … All he has to say is one word and he gets to go home. "Guilty." All he has to say is "guilty," and he goes home. It was just a stunning turn of events.

Kerry was perplexed, and then he looked me in the eye and he said, "There's no way I'll plead guilty. I will not lie. I will go back to death row, I will allow them to execute me, they can tie me on the gurney and put the poisons in my veins, before I say guilty." It was a powerful moment. We were so close to freedom, but Kerry said no, he wasn't going to plead guilty.

Could you understand that?

I worked so hard on Kerry's behalf. I wanted him to live, I wanted him to go back to his mother, I wanted him to have a life outside of prison. Kerry had a brutal prison experience, he'd been beaten up and sodomized and assaulted in prison, and he had had a very difficult time on death row for over 20 years, so I wanted Kerry to have the chance to go free.

On the other hand, I respected him. He was prepared to go back to death row if it meant he had to say he was guilty. Kerry told the prosecutor in no uncertain terms, he would not plead guilty, even if it meant he could go free. Kerry demanded that if he was going to plead, it would be no contest. …

Did you try and convince him to plead guilty?

I wanted to respect Kerry's desires. I respected his opinion. He was the one who had done the time, he was the one who had the courage to survive on death row, and so I wanted to respect Kerry. On the other hand, I did implore him to consider his mother and to consider his future, but Kerry was steadfast. He would not plead guilty, and I respected that.

Texas executed 141 people during the 21 years he was on death row, so he knew what it meant to be executed. Many of those who were executed were acquaintances and friends of his on death row, so it wasn't just talk on his part. He meant it. He would go back to death row, he would allow them to kill him by lethal injection before he would tell a lie, before he would say he committed a murder that he didn't in fact commit. …

So what happened? You went back to court?

We went back to court and continued to prepare for trial. The prosecutor still wanted to work out a deal, still was imploring us to consider a plea bargain, and Kerry made some demands. Kerry said, "I'll plead no contest," which means, "I will not admit I'm guilty, I am not guilty. I'll plead no contest, if I get time served, and it's over with." And the prosecution totally capitulated. They gave in. After 20 years and millions of dollars and three capital murder trials and two appeals to the United States Supreme Court and two appeals to the Texas Court of Criminal Appeals and an appeal to the federal courts, they gave in. After all this rhetoric that Kerry was guilty, they said, "Okay, he can plead no contest for time served," and Kerry walked out into the sunshine, went home with his mother.

Why did they accept the no contest plea?

You know, that's a mystery to me, because the prosecutors had been so steadfast, so strident in their public and private attitude that Kerry was guilty, that Kerry had committed this heinous murder, that Kerry had raped and mutilated this young woman, it surprised me that they would allow him to plead no contest. Perhaps they were afraid that Kerry might ultimately be exonerated, that DNA might some day exonerate him. That's the only explanation I can come to, after [they spent] millions of dollars trying to kill Kerry. ...

Why did they offer him the plea?

Wendy Jo Edwards was murdered in 1977 and in 1999, 22 years later ... the district attorney informs Kerry that they have semen on panties found at the crime scene. I suspect -- I'll never be able to prove, and the district attorney's office will deny it, I'm sure -- the prosecutors were afraid that the DNA would exonerate Kerry... [The DNA evidence] showed that it was not Kerry who had committed the rape and homicide.

… No one wants to say they made a mistake, and the prosecutor will not say they made a mistake, even though DNA has exonerated Kerry. They're now saying the DNA is irrelevant. Well, how can it be irrelevant? You have a young woman who's been raped and murdered, and someone else's semen found at the crime scene and they're saying DNA is irrelevant? It's preposterous.

But again, they don't want to admit they made a mistake. They're afraid to jeopardize the viability of the death penalty. Kerry came within ten days of being executed. To now say, "We made a mistake" could cause problems for the death penalty in Texas, and the district attorney is not prepared to allow that to happen.

If the prosecutors truly believed that he raped and mutilated a young woman, how could they allow him to plead no contest and let him walk out? It's inconceivable. … They won't admit it, but I think that the prosecutors have to have sincere questions about Kerry's guilt. That's the only way that justifies their actions. …

In general, judges say they tell innocent people not to plea.

Well, there's an estimate that about 10 percent of the people in our prisons are innocent. We're, of course, never going to be able to accurately quantify that, but I think that's accurate. You have to look at, who's in prison? It's largely the poor, it's largely the uneducated, it's largely people who can't afford a legitimate defense, and a lot of people get coerced, get pressured into pleading guilty. There's no question about that. … There's a lot of innocent people who say they're guilty because they don't have the will or the resources to fight. They don't realize they can fight.

How does probation work?

… A lot of people are offered probation for serious crimes. The concept of probation, what it means in the law, is you plead guilty, you get sentenced. Typically you get sentenced to prison or to jail. But instead of going to prison or jail, you're placed on community supervision, which means you're placed on probation. You have a probation officer that monitors you, and you have to visit your probation officer, typically it's monthly, you have to perform certain conditions, and if you violate your supervision, if you fail to adhere to one of the rules that's imposed, your probation is taken away and you go to either jail or to prison. …

The downside with probation is, if you're innocent, you're very likely to have your probation revoked. If you're a working person, you're trying to support a family, it's very difficult to successfully complete a probation.


Well, you have a person of moderate means who's ordered to perform four or five or six, 800 hours of community service. How can a working poor, how can a working middle class person who is struggling each month to pay their rent, struggling each month to put food on the table for their children, how can they do 800 hours of community service? If they miss their community service for one month, they can be revoked. So it's very difficult.

If you have money and you can take time off from your job, you can take a month off here and there, to do your community service, that's one thing. But for the working poor, it's very difficult. To get to your probation officer you may have to take two different buses. It may take two hours to take mass transit to visit your probation officer. If you're late or you miss an appointment, you can have your probation revoked. So when an innocent person is offered a deal, when a prosecutor comes to an innocent person and says, "Hey, just plead guilty and we'll give you probation," that may seem tempting. In reality it's not a good deal because you may end up in prison, even though you're innocent. It's not easy to do at probation, especially if you have limited resources.

… For a typical probation in Houston, you have to pay a fine, you have to pay a monthly service charge, sometimes $40, $50, $60 a month, you have to pay court costs. If you're making six or seven dollars an hour, which is more than minimum wage, there's no way you can pay all your expenses. Even though in theory we don't have debtor's prison anymore -- that went the way of Charles Dickens -- you can still be revoked for failure to pay your fines. You can still be revoked for failure to pay your supervisory fees. So probation to someone who's innocent is not a deal at all. …

There are all these programs you're ordered to participate in, there's counseling for this and this and this program and they all cost. This one costs $40 a week and this one costs $70 a month and this one costs $22 per visit. … It's an industry. It's a multi-billion dollar industry in Texas alone. Some of these programs may be legitimate, some of them aren't. … These aren't necessarily programs offered by the probation department, they're private programs. It's an industry that has sprung up around probation, and in many instances, I think it's abused. Nobody's really monitoring these programs. I'm sure some of them are less than what they're billed as. We need to look more closely at who is running these programs and how much money they're making in these programs. Again, you have to remember, it's a money-making industry.


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posted june 17, 2004

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