Letter From Tyler
Trial and Error
After an appeals court overturned the convictions of two Texans implicated in a child sex ring, the latest defendant went on trial with the same judge, the same evidence—and the same verdict.
Kerry MaxCook says: “It shall be the primary duty of all prosecuting attorneys, including any special prosecutors, not to convict, but to see that justice is done. They shall not suppress facts or secrete witnesses capable of establishing the innocence of the accused.” Texas Code of Criminal Procedure, Article 2.01 The small East Texas town of Tyler in Smith County is in the news again, for meting out yet another grave injustice. Earlier this month, at a pre-trial hearing before Smith County District Judge Jack Skeen, six of the seven apparently innocent “Mineola Swingers Club” defendants accused of breath-taking acts of sexual exploitation of children pled guilty to a lesser charge of “injury to a child” in exchange for their freedom. The six defendants have been in jail or prison since their arrest in 2007. Two of the defendants had their sentences overturned on appeal. No one knows more about frame-ups, coerced plea-bargains, Jack Skeen and the Smith County District Attorney’s office than me. You could say I could – - and well, I did – - write a book about it. My name is Kerry Max Cook. I am the author of CHASING JUSTICE: My Story of Freeing Myself After Two Decades on Death Row For a Crime I Didn’t Commit (Harper Collins). For over 20 years, I was embroiled in a life and death battle with two generations of the Smith County District Attorney’s Office. First in 1977 with District Attorney A.D. Clark, III, and again in the ‘90’s with A.D. Clark’s successor and first cousin, former Smith County elected District Attorney Jack Skeen. It was a desperate mind-numbing legal nightmare to try and persuade someone – - ANYONE – - to believe the only reason I was sitting on death row facing an executioner was because A.D. Clark III and Jack Skeen both railroaded me there. Before Jack Skeen’s appointment to the 241st Judicial District Court of Smith County in 2003 by Governor Rick Perry, Skeen served as the unbeatable elected Criminal District Attorney for 21 years. Twenty-two years later, and nearly four capital murder trials later, Smith County versus Kerry Max Cook would go down in the annals of jurisprudence as the worst documented example of police and prosecutorial misconduct in Texas history as well as a sordid modern day retelling of Franz Kafka’s THE TRIAL. It is so compelling, author John Grisham wrote for the cover of CHASING JUSTICE, “If it were fiction, no one would believe it…” An Arrest based on fraud I was 19 years old when I was arrested on capital-murder charges in connection with the rape and murder of a 21-year-old woman named Linda Edwards in Tyler, Texas. The “evidence” used to support a legal requirement to establish probable cause was based exclusively on the manufactured allegations and outright perjury of a police detective. This prosecutorial suborned perjury would be used to deny bond, to attain indictment, and then to persuade a jury to convict and sentence me to death. First in an arrest warrant and later in secret testimony before the Grand Jury, this detective’s critical testimony was a lie — and prosecutors knew it. It was the first of several egregious fabrications, gross suppression of exculpatory evidence and the subornation of perjury used to support nearly three more trials, two reversals, two convictions, and an execution date. This malfeasance would have had me executed but for the intervention of the United States Supreme Court, which stayed Smith County’s death warrant, and later granted Certiorari, reversed the lower court’s decision, and remanded my case. Solitary Confinement at the Smith County Jail I was thrown naked in a dark isolation cell. My parents hired two local attorneys and paid them a total of $500 to represent me because that was all the money they had. For the next 11 months while I waited in darkness for a trial, A.D. Clark, III completely made up a case. Below are but a few of the well documented, judicially acknowledged examples of misconduct: A.D. Clark, III and again through Jack Skeen in re-trials, suppressed the “highly exculpatory evidence” gained through a police investigation showing that the police were fully aware that I knew Ms. Edwards and was previously an invited guest in her apartment three days before her murder. A.D. Clark, III pressured a crime-scene detective to provide critical false testimony: (a) to fraudulently obtain an arrest warrant for which no probable cause existed; (b) to fraudulently secure an indictment from the Grand Jury; and (c) to obtain wrongful convictions from two different juries. This detective testified that the only time my fingerprint could have been left on Ms. Edwards’s patio door was at the time of her rape and murder, and a police investigation uncovered no evidence that the she and I had ever met or known one another, all the while suppressing any/all evidence which directly contradicted this false testimony. It was a skit, which the detective and later Jack Skeen played out all the way to the United States Supreme Court, to try and have me executed. A.D. Clark, III granted immunity from prosecution to a witness named Robert Lee Hoehn, an avowed homosexual, whom they claimed provided critical “key testimony” that established the mens rea for the rape and murder of Ms. Edwards. Both A.D. Clark, III and Jack Skeen suppressed any/all evidence of the same “critical key witness” that could have exposed this witness’s fraudulent testimony, such as his original sworn testimony before the secret Grand Jury and his sworn statements to the police. “Fraudulent” testimony excluded; the reason “We had to let ‘em go.” As a footnote, in reversing my wrongful conviction for a second time in 1996, the Texas Court of Criminal Appeals called Jack Skeen’s “critical key witness” testimony a “fraud,” testimony gained only through “fraudulent practices.” Because it was perjury – - and Skeen knew it – - the Texas Court of Criminal Appeals ruled Robert Lee Hoehn’s 1978 trial testimony inadmissible in any subsequent retrial as “evidence” against me. Ironically, District Attorney Jack Skeen would use it before the media as the reason “we had to let him (Kerry Max Cook) go, we had no case without it (the critical testimony of Robert Lee Hoehn)….” Police coached the lone eyewitness to murder, who originally identified Ms. Edwards’s 45-year-old, married, ex-boyfriend as the killer, to change the details of her exculpatory sworn statement so I could be identified in court as the killer. Prosecutors endorsed, promoted and then presented the junk-science of a hometown psychologist, whose degree was in educational counseling — not forensic psychology — to create a “psychological profile” that concluded the killer was a crazed, misogynistic homosexual killer of women. The psychologist, police, and prosecutors then worked in tandem to tailor this “psychological profile” to link me to Ms. Edwards’s rape and murder after arrest. A.D. Clark, III and Jack Skeen allowed the pathologist to alter the time Ms. Edwards originally died, and moved the time of death up two hours to conform to the State’s theory in three critical areas: (1) to fit the detective’s testimony that made my fingerprint the killer’s calling card; (2) to put me at the apartment complex at large and in time to be identified inside Ms. Edwards’s apartment and be available for the lone eyewitness’s brand new identification of me as the killer; and finally (3) to overcome the State’s own sworn testimony that accounted for my whereabouts in the time span the pathologist originally claimed Ms. Edwards was murdered. A.D. Clark, III and his First Assistant, Michael Thompson arranged a secret deal with an accused murderer named Edward Scott “Shyster” Jackson to secure a false jailhouse-confession story and then coached him on the details of the murder I was accused of so he could create a plausible story for the jury to help them convict me. Shyster was a career criminal. Prosecutors A.D. Clark, III and Michael Thompson told Shyster that if he would help them obtain a conviction and a death sentence, they would drop his charge from murder to Involuntary Manslaughter and give him credit for the 22 months he had already served in the Smith County Jail since indictment and set him free. That’s exactly what they did, records showed. Michael Thompson commits suicide Shortly after Edward “Shyster” Jackson was released, he recanted and told the Dallas Morning News, a radio station reporter and others of his deal to supply false testimony and implicate me in Ms. Edwards’ murder. Trial prosecutor Michael Thompson stepped into his sister’s closet in Tyler and shot himself to death with a shotgun. Upon reversal of conviction and a return to the Smith County jail to answer the original 1977 indictment of rape and murder charges, Jack Skeen’s Chief Felony Prosecutor met me at the jail and attempted to interrogate me behind the back of my counsel of record, whom the prosecutor knew was representing me. The Dallas Morning News wrote I was “railroaded” to Death Row by overzealous prosecutors. After it was all over, The Houston Chronicle said, police and prosecutors had a “win-at-all-cost mentality” and would stop at nothing to make me appear guilty and have me executed. District Attorney Jack Skeen did let me go finally, but not through the front door as an exonerated innocent man. With me prepared to return to death row with yet a third wrongful conviction and certain execution by refusing to plead guilty to a rape and murder I didn’t commit, and Jack Skeen afraid to lose the fourth trial but not willing to dismiss the charges against me, he offered a “No Contest” Alford-like plea with no admission of guilt. Either I accepted it or faced a fourth trial riddled by the same prosecutorial misconduct that had persuaded two different juries to convict and sentence me to death and return me to death row and a prison life of unspeakable abuses. I accepted Jack Skeen’s offer but refused to sign the State’s mandatory “Stipulation of Evidence” that accompanied the No Contest plea: I refused to admit guilt because I was innocent. DNA Two months after I was kicked out the back door of Smith County’s legal system with a conviction for a reduced charge of murder, a law enforcement crime lab released the results of a semen stain found on the victim’s panties at the crime scene. The DNA belonged to none other than the victim’s married, 45-year-old, ex-boyfriend — the original suspect. In a United States Supreme Court case styled Alford vs. State, the Court said a defendant could make an intelligent choice to accept a plea – -even though innocent, if it meant escaping more punishment. I don’t think the Court meant for prosecutors to wield their incredible might in such a way so as to force the innocent to accept convictions. As the Mineola Swinger’s Club cases show – - and Tyler defense attorneys can tell you – - Judge Jack Skeen and the Smith County District Attorney’s Office practice their own ad hoc rules of criminal procedure. This practice doesn’t include the intended justice of the Texas Rules of Evidence, or any other Penal Code. Their brand of law has it own name. It’s simply called “Smith County Justice.” This city and its legal system have been the subject of national media scorn for decades. In the fall of 1980, Hugh Downs and Barbara Walters opened an episode of 20/20 with, “Run Away Justice: Crime and Corruption Marks the Small East Texas town of Tyler.” Based on an extensive investigation by The Dallas Morning News looking into allegations of corruption, 20/20 reported Smith County officials had framed over 100 suspects on charges that were later proven false. This systemic corruption reaching the highest levels of Tyler’s justice system was immortalized in a book entitled “Smith County Justice.” A motion picture was adapted called Rush, starring Jennifer Jason-Leigh and Jason Patrick. Clarence Darrow once said, “True patriotism hates injustice in its own land more than anywhere else.” I keep hoping one day the right-thinking people of Smith County will wake up and do something about it. Thirty-three years later I am still writing about injustice in Tyler because, after my long and arduous stay and near-execution on death row, I know all too well that in the absence of light, darkness will remain. (June 28th, 2011 at 2:39pm)
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The prosecutor’s case was the same as it had been in the previous three trials. “Ladies and gentlemen of the jury,” began assistant DA Joe Murphy, “the testimony you’re going to hear, summed up in two words, is pure evil.” The state called all four children, plus a fifth, Pittman’s seventeen-year-old stepdaughter, Anna, who claimed that he had raped her when she was ten or eleven. Harlan, eleven, talked of doing “bad things” and touching his sister’s private parts; nine-year-old Callie told of doing “nasty stuff”; Sheryl, thirteen, spoke about dancing in the club. Ginny delivered her bombshell denial that she had ever attended a sex kindergarten, but it was quickly overshadowed by her acknowledgment that she too had danced at the club.
The children were handsome and well behaved, and the mostly gray-haired jurors—nine men and four women—were visibly moved by their words. During Harlan’s testimony, the foreman of the jury wiped away tears. Sheryl cried as she described playing doctor with her brother, bringing more tears from jurors. “Remember why you’re here,” Murphy pleaded to the jury. “You are here because of what they went through.”
In his cross-examinations, Cassel tried to show how the stories the children told were contradictory, inconsistent, and simply too strange to be believed. He got all four to admit that they had initially denied that anyone had ever touched them inappropriately or abused them sexually; it was only after Margie got involved that they started making allegations. (He also prompted Anna to admit that in three separate interviews with social workers, she had denied that Pittman had sexually abused her.) He repeatedly asked Callie if she had really flown around in the air on a broom, and she repeatedly said yes—though a few minutes before she had said the opposite.
Cassel called adults who had been to the swingers club (known as the Retreat), who said they had never seen any children there. Nor, for that matter, had they seen Pittman. He called a police officer who had patrolled the club parking lot and never seen any kids there. But Cassel knew he needed more than logic to beat back the emotional power of the children’s testimony. He needed his version of the big picture. He needed to prove that Margie was—as one of her former foster children dubbed her—“the puppet master.” So he called experimental psychologist Marc Lindberg, a professor at Marshall University, in West Virginia. Lindberg explained how false memories could be suggested to young children. “If you keep asking the same question,” he said, “kids change their answers.” Cassel planned to show the jury videos of Margie’s interviews with the children while Lindberg explained how her techniques could have led to false memories and answers.
The prosecution objected, claiming that showing the videos would be allowing hearsay testimony into the trial. Cassel argued, “If Dr. Lindberg isn’t allowed to testify and give examples of what he observed on video, it essentially can render his testimony meaningless, because the jury wouldn’t really be able to understand what he’s talking about.” Skeen sustained the objection, even though he had okayed showing the videos in previous trials. “I’ve testified all over the country,” Lindberg later told me, “and I have never had this sort of testimony excluded.”
The next day, Skeen struck another huge blow to the defense when he allowed Margie—the foster mother of three of the children, the interviewer of four of them, the person whose passion had driven the cases for more than five years—to invoke her right to refuse to testify on the grounds that she might incriminate herself, even though she had already testified in the first two trials. Cassel was able to question her but only after the jury had left the courtroom. The lawyer asked Margie more than 130 questions in thirty minutes. He asked her about the California decertification, about her habit of suggesting answers to the children, about her former career as an acting coach (“And you know how to teach [children] to remember lines?”). To each question, Margie answered, “I decline to answer based on my constitutional rights.” She slumped in her chair, staring down or into the middle distance, occasionally rolling her eyes and sighing loudly.
Skeen had forced Cassel to jettison much of the case he had planned to put before the jury. When Margie was finished, the defense rested.
The next morning both sides gave closing statements. Bingham concentrated on emotion: “This is the children’s day,” he said. “This is their day for justice.” Cassel stuck with logic. He asked the jury to think about “a child sex club across the street from the Mineola newspaper at a busy, busy intersection and a nursing home in a residential neighborhood off Highway 80 with . . . the police patrolling the parking lot, people installing cable, strangers able to gain entry by knocking on the door. Does it make sense?”
The jury was sent off to deliberate. Given the history of these cases and the conservative makeup of Smith County juries, virtually everyone in the courtroom believed the verdict was a foregone conclusion. (“I suspect those jurors made up their minds during jury selection,” one defense attorney had told me on the first day of the trial.) When, only ninety minutes later, jurors notified Skeen that they had reached a verdict, it was obvious these observers were correct. “Guilty,” read Skeen. He sent the jurors off to deliberate on the punishment, and when they returned, twenty minutes later, Margie and her eight foster children had filed into the courtroom to hear the sentence. Several times I had seen Margie, John, and the kids walking around the courthouse square during lunch breaks; they walked in an orderly, purposeful fashion, usually in single file. They entered now with the same determination. Harlan sat to Margie’s right and held her hand, their fingers laced tightly together. Sheryl sat on Margie’s left and did the same. Callie sat in front of them. She wore a black bow in her blond hair.
Skeen asked Pittman to rise while the sentence was read. He stood up, twelve feet from the children who had accused him. Margie closed her eyes tightly, as if in prayer. Skeen read the sentence: life in prison, plus a $10,000 fine.
Before Skeen dismissed the jury, he thanked them, launching into a four-minute soliloquy on the wonder of the American justice system. “There has been a real, a very deep price paid for us to be in this courtroom,” he said in his deep East Texas drawl, “by a lot of men and women over a lot of years that have paid the price for us to have this type of system.” His voice cracked, and he had difficulty getting some of the words out. “It’s one that we always want to keep, and it’s provided by people like you who pull the heavy wagon, share the burden, and make the tough decisions.” He finished with an explanation that the flag that hangs in his courtroom formerly flew at ground zero, where the Twin Towers once stood.
The jurors smiled a little self-consciously. They had only done their jobs. After they were dismissed, Pittman was handcuffed and led away. Half an hour later, Margie and the children left the courthouse too. Several of the kids carried papers or a small box, and a few of them skipped along the sidewalk. They would be back, all of them, soon. The next trial will likely begin in the same courtroom before the end of the year. We don’t know who is next—Jimmy or Sheila Sones or, since the DA has filed a motion to consolidate all of the remaining cases into one (including the retrials of Kelly and Jamie Pittman), perhaps multiple defendants.
After four decisive guilty verdicts, it’s likely that the next trial will have the same result, largely because it will be overseen by the same judge. “Due process demands that the defense gets to put on a case,” longtime Tyler defense attorney Bobby Mims told me. “Cassel was prevented by Skeen from doing that. Don’t get me wrong. Jack Skeen is a great guy. I love him. He’s one of my best friends. But he’s been a terrible judge on these cases.”
Mims went into his own soliloquy on the jury system. “Cassel proved that what these children say happened could not have happened. They were never in that swingers club. The problem is that juries don’t always make decisions based on logic. In this type of case they make them on their hearts or on fear. That’s a hazard of the jury system. Still, they should have all the evidence. If they then decide the defendant’s guilty, that’s fine.”
He paused. “But in these cases I don’t think they would have. I believe these people are innocent.”
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