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.
TIPPING THE SCALES: In the latest Mineola swingers club case, the power of the children’s testimony seemed to outweigh the facts.
Illustration by Edel Rodriguez
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)
The little girl had changed her mind. After five years, four interviews with social workers and law enforcement officers, and three trials, Ginny had come to a realization about the “sex kindergarten,” the horrible place in the trailer in that brushy field just outside Tyler where, she had previously said, she had been taught to dance and do “sexual stuff.” “I’ve remembered in my mind that that never happened,” she announced in open court. When, asked the surprised prosecutor, Smith County district attorney Matt Bingham, had she come to this conclusion? “Last week, the week before that.” What prompted it? “God.” She had prayed, she said, and received “a warm feeling in my heart.”
Ginny, eleven, is tall for her age, with wavy blond hair that falls to her shoulders. She had testified about the sex kindergarten three times in court, as had three other children, Sheryl, Harlan, and Callie (the names of all the children in this story have been changed). The four had also testified that in 2004, after “graduating” from the kindergarten, they’d left Tyler, in Smith County, and been taken by six men and women up the road to Mineola, in Wood County, to a swingers club, where they’d danced and touched one another’s privates onstage in front of two or three dozen grown-ups. The kids said they had worn costumes and been given “silly pills” to make them lose their inhibitions. They acted in skits involving parachutes and puppets. Callie told of flying around on a broomstick. The children claimed they had been paid with money or food by their adult masters, who had sometimes worn witch outfits. One of the grown-ups had cast spells. Another had shot a dog and hung it from a tree in front of the club, in broad daylight.
To Bingham’s relief, Ginny remembered the Mineola club, though her grasp of details was a little sketchy. He asked her if she had been in the club a few times or many times. “I have no clue,” she responded. He asked what she wore. “I don’t know, sexy outfit or something.”
It was July 6, the first full day of testimony in the trial of Dennis Pittman, the fourth defendant in the so-called Mineola swingers club cases. The venue was Judge Jack Skeen Jr.’s courtroom, the same place where three other defendants had been prosecuted in 2008 for forcing Sheryl and Harlan to touch each other’s privates. (I wrote about this case for TEXAS MONTHLY in April 2009.) Pittman sat quietly next to his attorney, Jason Cassel, rarely moving. The defendant was not the most appealing client, with a teardrop tattoo under his left eye, a perpetual hangdog expression, and prior convictions for burglary and drugs.
Earlier that day, Ginny and 22 other potential witnesses had been sworn in by Judge Skeen. Among them were Margie and John Cantrell and their eight foster kids, including Sheryl, Harlan, and Callie. The Mineola swingers club drama began in June 2005, when Margie, a career foster parent who had arrived from California a year earlier, stormed into the Mineola Police Department and claimed that her two new foster kids had told her that they had performed sex shows at a local swingers club. Mineola police, aided by an FBI agent, investigated and found nothing to back up the stories. (Much later, a Wood County grand jury looked into the claims; there was, DA Jim Wheeler told me, “a total lack of corroboration for what those kids said happened.”) Margie refused to let that deter her. She later claimed, “I called Smith County, the FBI, and the Mineola police several times, as well as CPS [Child Protective Services], the Smith County CAC [Child Advocacy Center], and the Smith County police.”
In November the investigation finally gained traction—in Smith County. The Texas Rangers took charge. The main investigator, Sergeant Philip Kemp, let Margie sit in on some of his interviews with the children. She even took over from Kemp, asking the kids questions herself. Her techniques, according to experts I spoke with who had seen tapes or read transcripts of the interviews, were dubious at best. Sometimes Margie cajoled the children, petting their faces and once even kissing Sheryl’s hand. Other times she asked variations on the same question over and over or actually suggested answers to the kids, answers they then repeated. Eventually Sheryl, Harlan, and Callie began talking about a sex kindergarten and club involving various family members and their friends. In July 2007 six Tyler trailer-park residents were arrested: Shauntel Mayo (Sheryl, Harlan, and Callie’s mother), Jamie Pittman (Mayo’s boyfriend), Jamie’s friend Patrick “Booger Red” Kelly, Dennis Pittman (no relation to Jamie), Sheila Sones (Mayo’s mother), and Sones’s ex-husband, Jimmy Sones. Six months later, the Soneses’ young daughter Ginny began talking about the sex club as well.
The first defendants were Jamie Pittman and Shauntel Mayo, who had lost custody of her kids in 2005 (both Pittman and Mayo were drug abusers). Though no physical evidence was ever found to link them to the alleged crimes—no DNA, fingerprints, hairs, or costumes—and though no adult witnesses, including the thirty or so adults who’d supposedly watched the sex shows, could be tracked down, both were found guilty in only four minutes. The third defendant, Kelly, fared somewhat better, receiving a guilty verdict in less than two hours. All were given life sentences.
The prosecution seemed to be on a roll, and Dennis Pittman had little reason for optimism—until a higher court stepped in. On June 17 the Fourteenth Court of Appeals, in Houston, overturned the convictions of Kelly and Jamie Pittman. Kelly, the judges said, deserved a new trial because he hadn’t been allowed to present a defense and because Judge Skeen had “adopted ad hoc evidentiary rules that operated to assist the state in proving its case, while impeding appellant’s ability to defend himself.” (Jamie Pittman’s conviction was overturned on different grounds; Mayo’s was upheld, likely because her appellate lawyer cited none of the evidentiary issues that Kelly’s lawyers had raised.)
The ruling was no surprise to local defense lawyers. Skeen is a legend in Smith County. He was the law-and-order DA there for 21 years, then was appointed judge in 2003; he’s been reelected twice. He also has a reputation for helping the state and hindering the defense. “He never stopped being the DA,” Kelly’s attorney, Thad Davidson, told me the day after the appellate decision was announced. “He just put on a robe.”
Skeen’s 241st District courtroom is a small, pale room, maybe forty by thirty feet, with an alcove on the side for the jury. The one dash of color is an American flag under glass on the wall. Skeen, 64, sat at his bench, above the rest of the court, in a black robe. He is a large man whose face turns red when he gets angry. His hair is cleanly parted on the left.
Dennis Pittman’s case began less than a month after the stern rebuke from the Court of Appeals; surely, local defense lawyers thought, a chastened Skeen would allow Jason Cassel to put on a case. And the young attorney had worked hard to put one together. During his investigation, Cassel discovered additional interviews with the children that hadn’t been turned over to the defense in the first three trials, in apparent violation of evidentiary rules. He tracked down children who Sheryl said had been at the club, and they had no idea what she was talking about. He also found evidence that California had decertified the Cantrells as foster parents in 2003—right before they moved to rural Mineola and started fostering all over again. Cassel was going to take a completely different strategy than his predecessors. He was going after the Cantrells, especially Margie.
Cassel attacked them in his opening statements. “Margie Cantrell and John Cantrell are not trustworthy,” he said. They were career foster parents who gamed the system by claiming to have “problem” children, knowing they would get more money from the state. In fact, he noted, they made almost $110,000 in only a year and a half off of Sheryl, Harlan, and Callie. He added that the jury was “going to hear about [Margie’s] history of intimidating and misleading her own foster kids.”
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