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WRIT NO.

_________________________
TRIAL COURT NO. 1-77-179
EX PARTE

KERRY MAX COOK

IN THE DISTRICT COURT


114TH JUDICIAL COURT
SMITH COUNTY, TEXAS

APPLICANT KERRY MAX COOK'S MOTION TO RECUSE


JUDGE CHRISTI KENNEDY

TO THE HONORABLE JUDGE OF SAID COURT:


NOW COMES KERRY MAX COOK, the Applicant on the Application for Writ of
Habeas Corpus Seeking Relief From Final Felony Conviction Under Texas Code of Criminal
Procedure, Art. 11.07 and 11.073, and submits this motion to recuse Judge Christi Kennedy
pursuant to U.S. Const. Amend. XIV and Tex. R. Civ. Proc. 18b, in support of which he would
show the following:
I.
Introduction and Overview of Grounds for Recusal
For more than twenty-two years, Smith County officials relentlessly prosecuted Kerry
Max Cook for a brutal rape and murder he did not commit. This was no ordinary prosecution.
As the Texas Court of Criminal Appeals bluntly stated, "Prosecutorial and police misconduct has
tainted this entire matter from the outset." Cook v. State, 940 S.W.2d 623, 627 (Tex. Crim. App.
1996); see also Cook v. Jones, No.6:99-cv-15 (U.S. Dist. Ct, E.D.Tex.-Tyler, Jan 29, 1999), at
*18 (finding that the Smith County District Attorneys Office has repeatedly engaged in
egregious acts of misconduct throughout the course of this matter).

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But for repeated

intervention by the United States Supreme Court and the Texas Court of Criminal Appeals, Mr.
Cook would have long ago been executed.
In his present Application for Writ of Habeas Corpus under art. 11.07 and 11.073, Mr.
Cook seeks relief from his 1999 nolo contendere plea. His allegations and claims for relief are
based on (1) post-conviction DNA evidence that both corroborates Mr. Cooks factual innocence
and inculpates the longtime alternate suspect, and (2) new evidence never before presented to
any court that former Smith County District Attorney Jack Skeen, and others working with him
to prosecute Mr. Cook, both suppressed and destroyed additional exculpatory evidence
(including forensic evidence) to secure and protect their wrongful conviction of Mr. Cook, both
in the proceedings that led to his 1999 plea and in the years that followed.
Judge Christi Kennedy was assigned to preside over Mr. Cooks case in 2012, when he
filed an unopposed Motion for Postconviction DNA Testing under Chapter 64 of the Code of
Criminal Procedure. Her assignment was an automatic one, pursuant to a standing transfer order
in Smith County in which Judge Kennedy, as the Judge of the 114th District Court, immediately
takes jurisdiction over all cases in the 241st District Court that were earlier prosecuted by the
now-presiding Judge of that court, former DA Jack Skeen. Judge Kennedy was elected to the
Smith County District Court in 2009 after a career as a civil litigator in Smith County. Although
her former clients included members of Smith County law enforcement whose conduct is at issue
in Mr. Cooks case, and her late husband served as an Assistant District Attorney in Smith
County from 1992-95 (during the time that two of Mr. Cooks capital jury trials were held),
Judge Kennedy had no direct involvement in Mr. Cooks prosecution. However, her position as
a Smith County District Judge, as well as her longstanding personal and professional
relationships with the individuals whose conduct is at issue in this Writ, makes it inherently

Applicant Cook's Motion to Recuse Judge Christi Kennedy - Page 2

impossible for her (or any Judge in her position) to serve as the trier of fact in this case, nor for
any reasonable member of the public to be confident in her ability to do so.
This is so for several reasons. First and foremost, the claims presented in this Writ will
require the court to evaluate and make detailed findings as to the conduct and credibility of at
least three individuals with whom Judge Kennedy has longstanding and ongoing professional
and personal relationships. In particular, the key individual whose actions will be examined in
this writ proceeding is fellow Smith County District Judge Jack Skeen. Judge Skeen is one of
just three other Smith County district judges presently serving alongside Judge Kennedy. Upon
information and belief, Judges Kennedy and Skeen also had close personal and professional ties
long before she became a judge; and Judge Skeen administered the oath of office to her when she
took the bench in 2009.1
Judge Skeen served as the elected Smith County District Attorney from 1983 to 2003.
Mr. Cooks prosecution was perhaps the most highly publicized, time-consuming, and notorious
case during Judge Skeens entire tenure as District Attorney. He personally served as lead
counsel for the State in two of Mr. Cooks three trials; was counsel of record on numerous court
filings seeking to carry out Mr. Cooks execution between 1983-97; and negotiated and approved
the final no-contest plea that is now under challenge. Judge Skeens conduct during those
proceedings is directly at issue in this litigation. As set forth infra and in the Memorandum of
Law filed in support of Mr. Cooks writ, the present record includes substantial, well-pled
allegations that as District Attorney, Judge Skeen (1) suppressed favorable evidence exculpating
Mr. Cook and inculpating James Mayfield -- who was the original suspect in the crime and then,
at each of Mr. Cooks retrials, offered as the States chief witness -- in order to secure Mr.
See Exh. A: Coshandra Dillard, Christi Kennedy Fills Kents Spot in 114th District Court,
Tyler Morning Telegraph, January 2, 2009.
1

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Cooks 1999 plea, and (2) after the plea, ordered or otherwise sanctioned the illegal destruction
of DNA evidence, whose exculpatory nature was already known to the State, in order to prevent
Mr. Cook from obtaining access to it under this States then-newly enacted DNA testing statute.
In addition, the record shows that during Mr. Cooks trials, then-DA Skeen repeatedly
and publicly vouched for both the credibility and innocence of James Mayfield the victims
married ex-lover, who has now been impeached and inculpated by the post-conviction DNA tests
that are at the heart of Mr. Cooks writ. Thus, separate and apart from any findings of intentional
misconduct, a ruling in Mr. Cooks favor on his DNA-based innocence claim would essentially
amount to a finding that Judge Skeen had not only prosecuted and nearly executed the wrong
man, but in so doing, had erroneously vouched for the innocence of the true killer, who, as a
result of the States errors, has been allowed to walk free for nearly four decades.
Were that not enough, Judge Kennedy has close ties to numerous other current and
former Smith County officials who were directly involved in Mr. Cooks case. They include A.
D. Clark, III the Smith County District Attorney who originally prosecuted Cook in 1977-78,
and who is also Judge Skeens first cousin. Mr. Clarks wife, Judge Carole Clark, is another
of Judge Kennedy's colleagues on the Smith County District Court bench. Thus, two of the four
current district court judges in Smith County have a direct interest in the outcome of these
proceedings.

The actions of David Dobbs, former Smith County First Assistant District

Attorney, who appeared three times alongside Judge Skeen as counsel for the State in
prosecuting Mr. Cook over nearly two decades, will also be closely scrutinized in this writ
proceeding. Among other things, Mr. Dobbs made numerous representations to the Court, the
crime laboratory, and the media regarding the States evidence (including the DNA evidence) at
the time of Mr. Cooks 1999 plea that are directly at issue in Mr. Cooks Brady and actual-

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innocence claims. Mr. Dobbss wife, Deborah Tittle-Dobbs, also prosecuted Mr. Cook as a
Smith County ADA, appearing alongside Mr. Dobbs and then-DA Skeen as State counsel at Mr.
Cooks 1992 trial. Both Mr. Dobbs and Ms. Tittle-Dobbs, have close personal and professional
relationships with Judge Kennedy. In addition, former Judge Thomas Dunn, who until 2014
presided over Smith County Court at Law No. 1 (in a courtroom across the hall from Judge
Kennedys) was one of the prosecutors who, as a Smith County ADA in 1978, secured Mr.
Cooks first wrongful conviction and death sentence. And former Judge Cynthia Kent, whom
Judge Kennedy succeeded on the 114th District Court and has publicly praised as a friend and
mentor, was also involved in Mr. Cooks case. In 1999, then-Judge Kent sua sponte convened
an illegal grand jury to investigate Mr. Cooks alleged role in Ms. Edwards murder after Mr.
Cook entered his time-served plea, and made inflammatory comments about Mr. Cook when her
authority to do so was challenged.
For these reasons, it would be unreasonable to expect any individual in Judge Kennedys
position particularly one who presently serves alongside Judge Skeen and Judge Clark in a
small, four-district-judge courthouse -- to serve as the trier of fact on these claims. The court
will be required to make Findings of Fact, Conclusions of Law and a Recommendation to the
Court of Criminal Appeals. Judge Skeen and Mr. Dobbs, (as well as potentially Judge Carole
Clarks husband, A.D. Clark III) will all need to testify, and the trier of fact will need to evaluate
their credibility. The Court of Criminal Appeals must know that these findings, conclusions and
recommendations are made by a judge untainted and uncompromised by personal relationships
with the officials alleged to have committed this misconduct.
Judge Kennedy cannot and should not be put in the position of making these judgments
concerning her judicial colleagues and friends. Certainly, no reasonable member of the public

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can have confidence in her ability to simply set aside years of close friendship and professional
associations with Judge Skeen, Mr. Clark, Mr. Dobbs, and their spouses and determine whether
they wrongly convicted an innocent man of capital murder, much less whether they did so by
suppressing and/or destroying exculpatory evidence. See Tex. R. Civ. P. 18b(b)(1) (mandating
recusal in any case in which a judges impartiality might reasonably be questioned); Kemp v.
State, 846 S.W.2d 289, 305 (Tex. Crim. App. 1992) (recusal warranted under Rule 18 if a
reasonable member of the public would harbor doubts as to the impartiality of the trial judge).
For these reasons, Judge Kennedy should voluntarily recuse herself from presiding over
Mr. Cooks writ, just as other judges in this State have done when a case raises serious
allegations of prosecutorial misconduct involving a current or former colleague. For example, in
the Michael Morton case out of Williamson County, Judge Billy Ray Stubblefield sua sponte
recused himself from the pending proceedings as soon as it became clear that his fellow sitting
district court Judge, former D.A. Ken Anderson, may have withheld Brady material from the
court and defense at Mr. Mortons 1987 trial; the Texas Supreme Court immediately appointed
another judge from a different County (the Hon. Sid Harle of Bexar County). 2 Judge Harle
ultimately not only granted Mr. Mortons writ (on grounds of actual innocence) but also found
probable cause to convene a Court of Inquiry to investigate whether Judge Anderson knowingly
violated the law in his prosecution of Mr. Morton, based in part on new evidence developed
during discovery that had been ordered by Judge Harle during the writ proceedings. Thereafter,
the presiding judge of the Court of Inquiry (also from outside Williamson County) recommended
that Judge Anderson be criminally prosecuted for his actions during the Morton prosecution
twenty-five years earlier; Judge Anderson ultimately pled guilty to criminal contempt and served
2

See Exh. B: Letter from Judge Billy Ray Stubblefield to Chief Justice Wallace Jefferson, August
30, 2011; Exh. C: Application and Affidavit of Hon. Sid Harle, February 10, 2012

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jail time. He also resigned from the bench, and pursuant to a settlement with the State Bar, was
stripped of his license to practice law.3 Similarly, earlier this year Judge Jennifer Bennett of the
Dallas County district court was assigned a two-defendant capital murder writ in which a former
judge had recommended Brady relief based on documentary evidence in the States trial file, but
which was remanded by the Court of Criminal Appeals for additional findings and
recommendations.4 Because the former prosecutor who committed the alleged misconduct (in a
trial occurring 15 years earlier) had been employed by the District Attorneys Office at the same
time Judge Bennett was also employed as an ADA, she immediately recognized that it would not
be appropriate for her to serve as the trier of fact in a hearing at which her former colleagues
conduct and credibility was at issue, and sua sponte recused herself.5
Certainly, the public has every reason to expect that the judge hearing Mr. Cooks writ
will be similarly free of any professional conflicts that might inhibit him or her from ordering
discovery, presiding over an evidentiary hearing, and fairly considering whether one or more
Smith County officials knowingly violated the law when prosecuting a capital case.

The

prosecution of Mr. Cook was likely the most time consuming and biggest case ever prosecuted
by Judge Skeen as District Attorney. The outcome of these writ proceedings very well could
define Judge Skeen's tenure in office, just as the Morton proceedings did for former Judge Ken
Anderson. The public at large believes that justice was ultimately served in the Michael Morton
See Chuck Lindell, Ex-DA Should Face Inquiry, Judge Says, AUSTIN AMERICANSTATESMAN, Feb. 11, 2012; Martha Neil, Former DA Jailed after judge issues scathing opinion in rare
court of inquiry, ABA Journal, April 22, 2013; Disciplinary Actions, Texas Bar Journal, Feb. 2014,
available at
http://www.law.uh.edu/Libraries/ethics/attydiscipline/2014/February2014.pdf.
3

See Exh. D: Ex Parte Mozee, Writ No. WR 82,467-01 (Tex. Crim. App. Feb. 4, 2015) (per
curiam) and Ex Parte Allen, Writ No. 56,666-03 (Tex. Crim. App. Feb. 4, 2015). (per curiam).
5

See Exh. E: Order of Recusal, State v. Mozee, Writ No. W99-02631-R(A)., Feb. 24, 2015; Order
of Recusal, State v. Allen, Writ No. W00-01305-R(B), Feb. 24, 2015.
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case. In order that the public will have the same confidence that justice is served in the Cook
case, it is necessary that a Judge from outside Smith County preside over these writ proceedings.
Whatever the outcome of this writ proceeding, both Mr. Cook and the citizens of the
State of Texas deserve to have it heard by a judge free of such close and ongoing ties to the
Smith County officials whose conduct is directly at issue. The world will be watching to see
how the Texas courts resolve these serious new allegations in a notorious capital case that the
CCA has already found to be tainted . . . from the outset by egregious misconduct. For that
reason, Mr. Cook respectfully asks Judge Kennedy to recuse herself from this case, and if she
declines to do so, for the Administrative Judge to enter an order of recusal and appoint a district
judge from outside Smith County to preside over Mr. Cooks writ.
II.
Procedural History
Mr. Cook hereby incorporates as if fully set forth herein the procedural history of his
three trials, appeals, and the 1999 nolo contendere plea found at pp. 7-24 of his Memorandum of
Law in Support of his Application for Writ of Habeas Corpus, as if fully set forth herein. In
addition, Mr. Cook notes the following history as it relates to Judge Kennedys initial assignment
to this matter during his Chapter 64 proceedings in 2012, and his present Motion to Recuse:
On February 28, 2012, Mr. Cook filed a Motion for Postconviction DNA Testing under
Chapter 64 of the Code of Criminal Procedure. On that same date, he filed a Motion to Recuse
and Disqualify Judge Jack Skeen, arguing, inter alia, that Judge Skeen, as the former District
Attorney who thrice prosecuted Mr. Cook, was disqualified pursuant to Tex. R. Civ. Proc.
18b(a)(1), because he had served as a lawyer in the matter in controversy. The Motion further
requested that, upon Judge Skeens mandatory disqualification/recusal, the presiding Judge of

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the First Administrative Judicial Region appoint a judge from outside Smith County to hear Mr.
Cooks Chapter 64 motion, given the substantial misconduct already found to have been
committed by current and former Smith County officials in this case.
Upon receipt of the motion, Judge Skeen did not file either an order of recusal nor an
order of referral as provided by Tex. Rule Civ. Proc. 18a(e)(2). Instead, under a standing order
of the Smith County 114th District Court entered by then-presiding Judge Kent in 2003 (when
Judge Skeen took office), providing that the 114th District Court would automatically assume
jurisdiction over any and all matters arising from convictions obtained during Judge Skeens
tenure as District Attorney, the case was transferred to Judge Kennedy. Although no motion to
recuse Judge Kennedy had ever been filed, four days later, she sua sponte issued an order stating
that she would not recuse herself from any proceedings in Mr. Cooks case, and referred the
matter to Judge John Ovard, then the Presiding Judge of the First Administrative Judicial Region.
On March 7, 2012, Mr. Cook filed a supplement to his earlier Motion to Recuse, preserving and
re-asserting all of his earlier objections to the assignment of Judge Skeen (who had yet to recuse
himself, nor had an order for his recusal been entered); asserting that the Smith County Courts
2003 automatic-transfer order violated the procedures set forth in Rule 18a and related
constitutional provisions; and asking Judge Ovard to appoint a judge from outside Smith County
rather than permit Judge Kennedy to retain jurisdiction, reasserting the grounds for same as set
forth in his earlier Motion; to preserve and expand upon his concerns as to the constitutionality
of the underlying transfer order, he filed a supplemental Objection to Order of Transfer on
April 5, 2012.
On April 9, 2012, the State filed a written opposition to Mr. Cooks objections to the
motion to recuse Judge Kennedy, and defended what it claimed were the lawful automatic-

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referral provisions of the unusual transfer order in effect in Smith County since 2003.
However, Mr. Cooks request to have Judge Kennedy recused from presiding over his Chapter
64 motion was effectively rendered moot at that time, when the State made clear that it would
not oppose the DNA testing sought by Mr. Cook in his Chapter 64 motion, nor any other DNA
testing Mr. Cook might thereafter request. Indeed, the present District Attorney cited its offices
decision to consent to DNA testing under Chapter 64 on four separate occasions at oral
argument, urging Judge Ovard to strongly weigh that fact when considering whether the transfer
order should be upheld and Judge Kennedy allowed to remain on the case.

See, e.g., Exh. F,

Transcript of April 9, 2012 Motion to Recuse at 62-63 (Theres no evidence to support their
allegation that Judge Kennedy could not be fair in this case. Were not objecting to the DNA
motion. . . . So theres nothing thats really contested in this case. [T]he State can agree that
whatever evidence is amenable to DNA testing, well have tested.); id. at 57, 67.
Indeed, in addition to asserting that Judge Kennedy should not be recused because she
had no direct involvement in Mr. Cooks case, the State specifically argued that none of the facts
alleged by Mr. Cook regarding earlier misconduct by Smith County officials against him -- and
how those individuals relationships with Judge Kennedy might impact her ability to be impartial
-- were at all relevant to the Chapter 64 motion then pending, and thus should not be considered
by the Court at that time. See Exh. G (States Statement in Opposition to Defendants Motion
for Recusal, filed April 9, 2012) at 6 (the State is at a loss to understand what exactly any of this
has to do with Judge Kennedys alleged impartiality in presiding over a routine request for DNA
testing). In a supplemental filing one month later, the State again argued that the recusal
inquiry by Judge Ovard was sharply limited by the fact that the only matter pending at that time
was Mr. Cooks (uncontested) Chapter 64 motion. See Exh. H: States Statement in Opposition

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to Defendants Motion to Reconsider Denial of Motion to Recuse, filed May 8, 2012, at 14


(responding to Mr. Cooks contention that Judge Kennedy could not impartially preside over a
hearing at which Judge Skeen and other officials may need to testify regarding whether they
directed or authorized the destruction of exculpatory DNA evidence, by arguing that the
destruction of the stored evidence in 2001 by the Tyler Police Department in no way implicates
Judge Kennedy and is completely irrelevant to the issue of her recusal . . . [as] Chapter 64 does
not provide a remedy when the State may destroy evidence without notice).6
By order dated April 11, 2012, Judge Ovard denied the motion to recuse Judge Kennedy.
The order did not state the grounds for his decision or make any finds regarding Judge
Kennedys impartiality, stating only that the motion was Denied.7 Judge Ovard did, however,
take the highly unusual step of retaining jurisdiction over the DNA testing itself directing the
parties to submit to him (rather than to Judge Kennedy) a proposed order for testing, which he
approved and executed on May 7, 2012.

The State also argued that the States unlawful destruction of evidence was irrelevant to
recusal because Judge Kennedy herself was not in any way connected to the acts of destruction since
she was not a state official at the time. Id. But that argument is a red herring. Mr. Cook never argued that
Judge Kennedy should be recused because she played any role in the acts in question; instead, he asserted
in 2012 (and re-asserts here, in the context of his Youngblood claim -- a matter of first impression to be
heard by the art. 11.07 court) that Judge Kennedy cannot reasonably be considered an impartial trier of
fact as to whether her fellow District Court Judge (or officials working at his direction) illegally
destroyed DNA evidence during his tenure as District Attorney.
6

On April 30, 2012, Mr. Cook filed a Motion to Reconsider the denial of his motion to recuse,
which he thereafter supplemented based on additional disclosures made by the State during the Chapter
64 proceedings. He argued, inter alia, that (1) the District Attorney made significant factual
misrepresentations regarding Mr. Cooks earlier proceedings, and (2) the States recent disclosures as to
the improper chain of custody and apparent illegal destruction of DNA evidence supported his claim that
a judge from outside Smith County should preside over the matter. The motion was denied on May 14,
2012. The denial of the motion to recuse was thereafter affirmed by the Twelfth Court of Appeals at
Tyler. See Exh. I: In re Cook, No. 12-12-00217-CR (Tex. App.-Tyler, 2012), at 4, 9 (declining to grant
writ of prohibition to bar Judge Kennedy from acting upon the pending motion for forensic testing)
(emphasis supplied).
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The State filed its own Motion for DNA testing on December 20, 2012. Mr. Cook asked
Judge Kennedy to hold a hearing regarding the States DNA testing motion, specifically
regarding whether the items the State sough to test had been subjected to a sufficient chain of
custody to ensure they had not been tampered with or altered; however she declined to do so. See
Exh. J: Order Denying Kerry Max Cooks Motion for Courts Reconsideration of Order Granting
District Attorneys Motion for DNA Testing, April 4, 2013. Nor did she permit oral argument on
the motion or Mr. Cooks motion to reconsider.
Judge Kennedy signed the States proposed Order on Februrary 12, 2013 without a
hearing and over Mr. Cooks objection. Judge Kennedy also granted the unopposed motion of
Mr. Cooks out-of-state co-counsel from the Innocence Project to represent him pro hac vice;
however, none of Mr. Cooks counsel has yet appeared before her. Judge Kennedy has held no
hearings or status conferences on Mr. Cooks case since Judge Ovard declined to recuse her from
presiding over Mr. Cooks Chapter 64 motion.
The results of both parties DNA tests were completed in March 2015, and set forth in six
separate DNA reports issued between 1999-2015.

Along with (1) other exculpatory post-

conviction evidence, and (2) evidence supporting Mr. Cooks due process claims -- none of
which has yet been presented to or evaluated by any court -- the DNA test results provide the
basis for his present writ.
In sum, the grounds for recusal of Judge Kennedy from presiding over Mr. Cooks 11.07
writ have yet to be considered by any court. Judge Ovards conclusion in April 2012 that Judge
Kennedy should not be recused from hearing what was then -- in the States own words a
routine request for DNA testing, is a very different question than the one now before this Court:
whether a reasonable member of the public would doubt Judge Kennedys ability to be impartial

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in determining whether Mr. Cook is entitled to habeas relief from his underlying conviction.
Judge Ovard made his ruling, moreover, only after the State made clear, in writing and at
argument, that it would not oppose Mr. Cooks Chapter 64 motion, and further indicated that
even if Judge Kennedy retained jurisdiction, it would not oppose any supplemental requests for
DNA testing by Mr. Cook. See Exh. F: Transcript of April 9, 2012 Motion to Recuse at 57
(State will agree to test anything the defense wants to test. Anything.).
Now that DNA testing is complete, however, the habeas court will be asked to consider
very different (and, one presumes, vigorously contested) claims: his substantive claim of actual
innocence, arising from the exculpatory results of both parties DNA testing (much of which was
unavailable to any party in 2012, because it had not been conducted); and due process claims that
directly implicate the conduct and credibility of Judge Kennedys colleagues over the course of a
thirty-eight year capital murder case.
III.
Applicable Legal Standard
I.

Mr. Cook has a constitutional right to a fair and impartial tribunal.


"It is axiomatic that a defendant has a due process right to an impartial and disinterested

tribunal under the Fourteenth Amendment to the U. S. Constitution."8 A fair tribunal "requires
not only an absence of actual bias . . . [b]ut to perform its high function in the best way justice
must satisfy the appearance of justice;" therefore, due process demands avoidance of "even the
probability of unfairness."9

Tumey v. Ohio, 273 U.S. 510, 535 (1927); see also Chitimacha Tribe of Louisiana v. Harry L.
Laws Co., Inc., 690 F.2d 1157, 1164-65 (5th Cir. 1982) (asserting that "a fair trial before an unbiased
judge is a basic requirement of due process").
9

In re Murchison, 349 U.S. 133, 136 (1955) (quoting Offut v. United State, 348 U.S. 11, 14
(1954)); Commonwealth Coating Corp., v. Continental Casualty Co., 393 U.S. 145, 150 (finding that a
Applicant Cook's Motion to Recuse Judge Christi Kennedy - Page 13

II.

State and federal bases for recusal


The test for whether a judge should recuse himself is whether the average judge in his

position is likely to be neutral, or whether there is an unconstitutional potential for bias.10


Because it is an objective analysis, due process may sometimes bar a judge from sitting who has
no actual bias and who would do their very best to weigh the scales of justice equally between
contending parties.11 This test is meant to instill trust and confidence in the administration of
justice.12
In Sun Exploration & Prod. Co. v. Jackson, 783 S.W.2d 202, 206 (Tex. 1989), the court
stated:
Beyond the demand that a judge be impartial, however, is the requirement that a
judge appear to be impartial so that no doubts or suspicions exist as to the
fairness or integrity of the court. The judiciary must strive not only to give all
parties a fair trial but also to maintain a high level of public trust and confidence.
The legitimacy of the judicial process is based on the public's respect and on its
confidence that the system settles controversies impartially and fairly. Judicial
decisions rendered under circumstances that suggest bias, prejudice or favoritism
undermine the integrity of the courts, breed skepticism and mistrust, and thwart
the very principles on which the judicial system is based. The judiciary must be
extremely diligent in avoiding any appearance of impropriety and must hold itself
to exacting standards lest it lose its legitimacy and suffer a loss of public
confidence.
judicial officer "not only must be unbiased but also must avoid even the appearance of bias"); Rogers v.
Bradley, 909 S.W.2d 872 (Gammage, J., Declaration of Recusal) (the Due Process Clause will not
tolerate "actual bias" or the appearance of impartiality); Aetna Life Ins. Co. v. Lavoie, 475 U.S. 813, 825
(1986) ("justice must satisfy the appearance of justice.").
10

Capterton v. A.T. Massey Coal Co., Inc., 556 U.S. 868 (2009). This is an objective test, not a
subjective test. Id. at 882 (stating that a disclosure of actual bias would serve as grounds for appropriate
relief); Commonwealth Coating Corp., 393 U.S. at 149; Duffey v. State, 428 S.W.3d 319 (Tex. App. Texarkana 2014) (granting recusal and stating the question is whether a reasonable member of the public
would have a reasonable doubt that judge is impartial).
11

Id. at 2265.

12

Rogers, 909 S.W.2d at 872 (emphasis supplied); see United States v. Anderson, 160 F.3d 231
(5th Cir. 1998) (recognizing that it is essential to avoid even the appearance of impropriety because it is
as important to develop public confidence in our judicial system as to avoid impropriety).

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Texas courts have extended a judges requirement to recuse himself beyond those reasons
listed in the Federal and State Constitutions. 13 The rules governing recusal in a habeas
proceeding are located in Texas Rules of Civil Procedure 18a and 18b.14
Mr. Cook relies upon several specific grounds for recusal listed in Rule 18b in regards to
his request that Judge Kennedy be recused. These provisions state:
(b)
Ground for Recusal. A judge shall recuse himself in any proceeding in
which:
(1)
his impartiality might reasonably be questioned;
(2)
he has a personal bias or prejudice concerning the subject
matter or a party . . . [or]
(3)
the judge has personal knowledge of disputed evidentiary
facts concerning the proceeding . . .
To establish impartiality, bias, or prejudice, the party moving for recusal must introduce
facts sufficient to establish that a reasonable man, knowing all the circumstances involved,
would harbor doubts as to the impartiality of the trial judge.15 This is an objective test that

13

Sears v. Olivarez, 28 S.W.3d 611, 615 (Tex. App. - Corpus Christi 2000) (noting a judge may
be removed from a case under rules promulgated by the State Supreme Court).
14

TEX. R. CIV. P. 18; see also Ex Parte Sinegar, 324 S.W.3d 578, 2010 WL 4320399, at *1
(Tex. Crim. App. Nov. 3, 2010) (holding that the civil rule setting forth procedures for recusal of judges
applies in habeas proceedings before the trial court); cf. Deblanc v. State, 799 S.W.2d 701, 705 (Tex.
Crim. App. 1990) (stating recusal rules in the Code of Civil Procedure apply to criminal proceedings).
Texas Rule of Civil Procedure 18a lists the requirements for a Motion for Recusal. Rule 18a requires that
a party moving for recusal file the motion ten days prior to the trial or schedule hearing or if within ten
days of the date set for trial or other hearing that the motion be filed at the earliest practicable time prior
to the commencement of the trial or other hearing. TEX. R. CIV. PROC. 18a(a) & (e). Defense counsel
files this motion simultaneously with the filing of the Application for Writ of Habeas Corpus. This was
the earliest practicable time to file the motion, as the particular claims that form the basis for Judge
Kennedys recusal are those set forth in the writ itself.
15

Kemp v. State, 846 S.W.2d 289, 305 (Tex. Crim. App. 1992); see also Kniatt v. State, 239
S.W.3d 910, 915 (Tex. App. - Waco 2007, order) (per curiam) ([T]he proper inquiry is whether a
reasonable member of the public at large, knowing all the facts . . . concerning the judge and the case
would have a reasonable doubt that the judge is actually impartial.); United States v. Jordan, 49 F.3d 152
(5th Cir. 1995) (judge should have recused herself because of friendship with attorney the defendant was
accusing of criminal action); In re Apollo, 535 Fed. Appx. 169 (3rd Cir. 2013) (accumulation of judges
Applicant Cook's Motion to Recuse Judge Christi Kennedy - Page 15

parallels the federal standard and its application.16


Of particular importance here are cases holding that recusal and appointing of an outside
judge is appropriate when a judge may be required to pass judgment on the conduct of another
member of the same bench. In United States v. Gordon, 354 F.Supp.2d 524 (D. Del. 2005), that
situation was present and the court found recusal necessary and ruled that a judge from outside
the district should be appointed. The Gordon judge found that if litigation ensued over his
fellow judge's involvement in the case that would, "involve deciding matters that I cannot
properly decide because of reasonable questions that would arise about my partiality." The court
in Gordon concluded by stating:
[s]ince a defense effort to subpoena Judge Fannon cannot be rejected without
consideration, the inquiry necessarily turns to whether reasonable people could
question my role as the one doing the considering. I think they could. Indeed,
I would be surprised if they did not. This is a relatively small court, with four
active trial judges, including me . . . I am persuaded that one could reasonably
believe that we four judges see each other regularly, that we have developed
professional respect, appreciation, and friendship for one another, and that a
natural empathy may be unavoidable in seeing a colleague's reputation and
privacy threatened by embroilment in a criminal prosecution. Real or not,
partiality under these circumstances could fairly be perceived to be an issue.
Since the judicial role must be filled by one whose partiality cannot be reasonably
questioned, I cannot continue in this case."17

Similarly, In re Disqualification of Nadel, 47 Ohio St.3d 604, 546 N.E.2d 926 (1989).
involved a defendant who was charged with crimes alleged to have been committed against the
connection to employees litigating against convention center endangers appearance of neutrality that was
essential for public trust and recusal was warranted).
16

See Rogers, 909 S.W.2d at 880. The federal statute governing recusal, 28 U.S.C. 455(a)
contains language that is identical to the recusal language in the Texas Rules of Civil Procedure. See,
.e.g., 28 U.S.C. 455(a) (2006) (requiring a judge to disqualify himself in any proceeding in which his
impartiality might reasonably be questioned). Texas courts, therefore, have looked to federal case law
when applying the Texas rules for recusal. See, e.g., Rogers, 909 S.W.2d at 880.
17

Id. at 528 (emphasis added).

Applicant Cook's Motion to Recuse Judge Christi Kennedy - Page 16

wife and infant daughter of another member of the bench.18 The Supreme Court of Ohio stated
that the record reflected the existence of relationships within the judicial system of Hamilton
County that could suggest to a reasonable person the appearance of prejudice or impropriety
were this matter to be heard by any judge of the Hamilton County Common Pleas Court."19 The
court went on to hold: ". . . to avoid even the appearance of any prejudice or partiality and to
insure the public's confidence in the integrity of the judicial system . . . [a] visiting judge from
outside Hamilton County will be assigned . . ."20 See also Honolulu Roofing Co. v. Felix, 49
Haw. 578, 617-18 (Hawaii 1967) (holding that trial court should have recused itself from
presiding over trial where judge from the same circuit was a witness); Ex parte Bryant, 682
So.2d 39, 40 (Ala. 1996) (appointing judge outside judicial district based on potential bias by
local judges); Ex parte Price, 715 So.2d 856, 857 (Ala. Crim. App. 1997) (finding reasonable
persons would question impartiality of the judge in the same district); Moran v. Clarke, 309 F.3d
516, 517 (8th Cir. 2002) (appointing judge from outside district since the U. S. Marshal for the
district was the defendant).
Several recent Texas cases illustrate the types of situations calling for recusal. First, in
the prosecution of Mauricio Celis in Nueces County, Judge Manuel Banales was recused. The
recusal was based on personal involvement and relationships between the attorneys and the
defendant, as well as the attorneys and the judge. 21 In the Tom DeLay prosecution, Judge Bob

18

Id. at 605.

19

Id. at 604.

20

Id. at 605.

See Brenda Sapino Jeffreys, Judge Manuel Banales recused from Mauricio Celis criminal
case, Texas Lawyer Blog, July 22, 2009 (available at
http://texaslawyer.typepad.com/texas_lawyer_blog/2009/07/judge-manuel-banales-recused-frommauricio-celis-criminal-case.html).
21

Applicant Cook's Motion to Recuse Judge Christi Kennedy - Page 17

Perkins was ordered recused based on campaign contributions Judge Perkins had made to
various Democratic candidates.22 More recently, Judge Kennedy herself issued an order recusing
Dallas County Judge Carlos Cortez based on acrimony between Judge Cortez and lawyers for a
party.23
IV.
Reasons Judge Kennedy Should Be Recused
Mr. Cooks Writ Involves Serious Allegations of Misconduct by Judicial Colleagues
and Friends of Judge Kennedy; Those Officials Will Be Testifying Witnesses, and
the District Court Will Be Required to Evaluate Their Credibility and Decide
Whether or Not They Violated the Law in a Capital Murder Case
The allegation of the writ application include serious prosecutorial misconduct by both
Judge Skeen and former ADA Dobbs. As explained in the memorandum in support of the writ
application, this misconduct involves allegations of knowing suppression of exculpatory
evidence, destruction of evidence, and presentation of false evidence. In is alleged that Judge
Skeen and Mr. Dobbs were directly and personally involved in this prosecutorial misconduct
both directly prior to and after Mr. Cook entered his nolo contendere plea.
In passing judgment on the claims in the writ application, the Court will hear testimony
from Judge Skeen and Mr. Dobbs and be required to make credibility determinations from their
testimony. The Court will also be required to make hard choices concerning the prosecutorial
misconduct allegations that could substantially impact these individuals personal and
professional lives. It is not possible for a judge with the close relationships Judge Kennedy has
with these officials impartially conduct this review. Certainly, any reasonable member of the

See Ralph Blumenthal Judge in DeLay Case Is Ordered to Recuse Himself, The New York
Times, November 2, 2005 (available at http://www.nytimes.com/2005/11/02/politics/02delay.html?_r=0).
22

See John Council, Cortez Recused After Hearing, Texas Lawyer, September 22, 2014
(available at http://viewer.zmags.com/publication/a0f9a13d#/a0f9a13d/2).
23

Applicant Cook's Motion to Recuse Judge Christi Kennedy - Page 18

public at large would, at the very least, harbor doubts as to whether Judge Kennedy can be fair
and impartial under these circumstances, which is all that is required for recusal. See, e.g.,
Kemp, 846 S.W.2d at 305.
Additionally, the prosecutorial misconduct that, in the CCAs words, has tainted this
entire matter from the outset, dates back to when A. D. Clark III was District Attorney and first
prosecuted Mr. Cook in 1978. Appearing for the State at Mr. Cooks first trial was then-ADA
Thomas Dunn; until retiring from the bench in December 2014, former ADA Dunn was one of
Judge Kennedys other judicial colleagues in Smith County. A.D. Clark III's first cousin is
Judge Skeen, and his wife is Judge Carole Clark, another judicial colleague on the four-judge
district court bench in Smith County with Judge Kennedy.

Judge Carole Clarks Court

Coordinator is Vicki Dunn, the wife of former ADA and Judge Thomas Dunn.
Although Judge Skeen, and not Mr. Clark, served as District Attorney when the
conviction now under review was obtained, these original acts of misconduct by Mr. Clark (who
is Judge Skeens first cousin) and his deputies are also at issue here. Former DA Clarks
misconduct greatly and irrevocably prejudiced Mr. Cooks ability to effectively defend himself
in subsequent proceedings, and heavily influenced Mr. Cooks decision to accept the States
time-served plea offer in 1999, rather than face a fourth capital murder trial. This history as
well as the ensuing misconduct by Mssrs. Skeen and Dobbs in Mr. Cooks 1992 and 1994 trials - is thus directly relevant to the current writ. Indeed, the CCA has made clear that when
evaluating an art. 11.07 claim of actual innocence in a case involving a guilty or nolo contendere
plea, the district court must consider the reasons given by the applicant for pleading to the
charges, which the CCA has emphasized may be influenced by factors having nothing to do
with the defendants guilt. Ex Parte Tuley, 109 S.W.3d 388, 395, 393 (Tex Crim. App. 2002);

Applicant Cook's Motion to Recuse Judge Christi Kennedy - Page 19

see also id. at 397 (reviewing court in an art 11.07 writ shall consider the record from prior
trial(s) as well as the plea proceeding).

Thus, similar to the difficulties posed in light of her

relationship to Judge Skeen, Judge Kennedy cannot be expected to impartially judge the
credibility of A. D. Clark III, considering the fact that his wife, Judge Carole Clark, is Judge
Kennedys judicial colleague. Nor can she reasonably be expected to judge the credibility and
ethics of former ADA Thomas Dunn, since (1) he was, until nine months ago, Judge Kennedys
judicial colleague in Smith County, and (2) his wife is the Court Coordinator for her present
colleague Judge Clark.
A. Claims Related to Judge Skeen and his former Chief Assistant, David Dobbs
1. Prior Misconduct by Judge Skeen and former ADA Dobbs
In 1996, when the CCA reversed Mr. Cooks second capital murder conviction (after his
third trial) on grounds of repeated and egregious prosecutorial and police misconduct, the
majoritys opinion included, in a footnote, the following dicta: We note the acts of misconduct
on the part of the Smith County District Attorneys Office and Tyler Police Department took
place nearly twenty years ago and we do not imply any complicity in said acts on the part of the
current District Attorney or current members of the Tyler Police Department. 940 S.W.2d 623
n. 4 (1996).
Respectfully, this was error. Indeed, the author of the CCA majority opinion appears to
have been unaware that many of the specific acts of misconduct cited by the Court as well as
others set forth in the appellate brief filed by Mr. Cooks then-counsel, the accuracy of which the
State notably did not dispute (see id. n.6 (concurring op.) were in fact committed during Mr.
Skeens own tenure as District Attorney. These include acts committed prior to and during Mr.
Cooks second and third capital trials (in 1992 and 1994, at which Mr. Skeen served as lead

Applicant Cook's Motion to Recuse Judge Christi Kennedy - Page 20

counsel, and Mr. Dobbs was second chair) and in the appellate proceedings relating to all three
trials, during which Mr. Skeens office urged the courts to affirm and set a date for Mr. Cooks
execution. See also Cook v. Jones, supra, at *18 (agreeing that the Smith County District
Attorneys Office has repeatedly engaged in egregious acts of misconduct throughout the course
of this matter, but concluding that federal court did not have constitutional authority to bar
retrial) (emphasis supplied). These acts by Mr. Skeen and those working under his direct
supervision included, among others, the following:
a. Failure to Disclose Invalidity of States Fingerprint Evidence. As noted in Mr.
Cooks Memorandum of Law in support of his present writ, in 1989, Tyler Police
Dept. Sgt. Douglas Collard was the subject of a complaint by the International
Association for Identification based on the scientific invalidity of fingerprint
testimony purportedly inculpating Mr. Cook that he provided at Mr. Cooks first trial
a conviction that was, at the time of the IAI complaint, in its eleventh year of
intensive post-conviction review by state and federal courts. After being served with
the IAI complaint, Collard responded (in great detail, and in writing) that he knew his
testimony was indeed without scientific basis, and that he had only given it after
being pressured by former District Attorney A.D. Clark III to do so in 1977-78.24 For
more than three years, Mr. Skeen and his deputies failed to disclose Collards
recantation and the fact that his predecessor had pressured Collard to give false
testimony until those documents were only discovered by Mr. Cooks new counsel,
after his 1978 conviction was overturned by the CCA, when counsel was preparing

See Exh. K: Capt. George D. Collards Response to International Association for Identification,
May 22, 1989.
24

Applicant Cook's Motion to Recuse Judge Christi Kennedy - Page 21

for retrial.25 Worse, Mr. Skeens office filed sworn legal briefs including before the
U.S. Supreme Court -- continuing to cite Collards testimony when seeking to affirm
Mr. Cooks conviction and carry out his execution, but without disclosing what Mr.
Skeen knew about the invalidity of Collards fingerprint analysis as conceded in the
analysts own response to the 1989 IAI complaint.26 Nor can Mr. Skeen deny that he
was personally aware of Collards disavowal of his earlier testimony, since he signed
a letter of support for Collard which was included as an attachment to Collatds
response to the IAI complaint in May 1989.27
b. Suppression of grand jury transcript impeaching witness Robert Hoehn. The
principal ground invoked by the CCA in 1996 when reversing Mr. Cooks conviction
was its conclusion that due process was violated by the admission, at the 1994 retrial,
of a transcript of the 1978 testimony of States witness Robert Hoehn (a gay man and
former acquaintance of Mr. Cooks who had since passed away); Hoehn had falsely
testified that he and Mr. Cook watched an explicit video and had sexual relations on
the night of the murder (which, according to the State, was the critical event that led
Mr. Cook to commit the alleged lust murder of Ms. Edwards), yet then-DA Clark
and his deputies failed to disclose a wholly contradictory account of the events in
25

See Exh. L: Appellants Opening Brief to the Court of Criminal Appeals, filed July 17, 1995.

See, e.g., State v. Cook, States Petition for Writ of Certiorari, Supreme Court of the United
States, available at 1992 WL 12074467 (U.S. Jan. 28, 1992) (Jack Skeen, Counsel of Record) at *3
(citing Lt. Collard testimony, and urging U.S. Supreme Court to grant cert and affirm Mr. Cooks death
sentence, after Texas court had reversed and ordered new trial). Importantly, Mr. Skeen did not
specifically mention Collards fingerprint analysis while otherwise relying directly on his expert
testimony as to the condition of the crime scene further indicating that Mr. Skeen was well aware that
the print testimony was no longer valid, yet failing to inform either the Texas courts or the U.S. Supreme
Court of that critical fact when invoking Collard by name to bolster its case for Mr. Cooks execution.
26

See Exh. K: Capt. George D. Collards Response to International Association for Identification,
May 22, 1989, supra, at 60; see also Mem. of Law in Supp. of Writ at 9 (discussing Mr. Skeens letter of
support for Collard).
27

Applicant Cook's Motion to Recuse Judge Christi Kennedy - Page 22

question that Hoehn had earlier given to the grand jury. See 940 S.W.2d at 626.
What the CCA majority did not appear to realize, however, was that Mr. Skeen and
Mr. Dobbs themselves illegally withheld critical portions of Hoehns impeaching
grand jury transcript until after the close of testimony in 1992. All that was available
to defense counsel during the trial itself was a transcript of Hoehns grand jury
testimony with several pages omitted; Mr. Dobbs repeatedly assured the trial court
and defense counsel that the District Attorneys Office did not have those pages,
either, because the original transcript had gone missing. It was not until the third
day of jury deliberations that Mr. Cooks trial counsel, Paul Nugent, noticed Mr.
Dobbs reading what appeared to be original copy of the 1977 grand jury transcript;
after demanding that Mr. Dobbs hand it over, Mr. Nugent discovered that the
allegedly missing pages containing substantial, additional impeachment of Hoehn
had been in the possession of Mr. Skeens office all along.28
c. Unlawful attempt to interview Mr. Cook outside counsels presence. Among the
specific acts of prosecutorial misconduct cited by the CCA in 1996 was the attempt
by an assistant district attorney to interview appellant without his counsels
knowledge or consent. See 940 S.W.2d at 626. What the Court apparently did not

See Exh. L: Appellants Opening Brief to the Court of Criminal Appeals, filed July 17, 1995 at
16-17. In the testimony transcribed in these missing pages, Mr. Hoehn stated in direct contradiction
to the false trial testimony presented by Mr. Skeen and Mr. Dobbs that Mr. Cook did not even watch the
explicit video that prosecutors claimed had provoked Mr. Cook into murdering and mutilating Ms.
Edwards. See id. Yet Mr. Skeen and Mr. Dobbs not only failed to disclose this critical impeachment
evidence, but obtained permission to have the jury view this highly prejudicial film in its entirety, all
under the false premise that Mr. Cook had viewed it himself the night that Ms. Edwards was killed. See
id. at 92-94.
28

Applicant Cook's Motion to Recuse Judge Christi Kennedy - Page 23

realize is that the prosecutor who engaged in this unlawful act was not a former
official, but was in fact Mr. Skeens chief felony prosecutor, David Dobbs.29
d. Improper and false invocation of Mr. Cooks alleged homosexuality, despite
express trial court prohibition. Prior to and during Mr. Cooks 1994 trial, the
presiding judge repeatedly made clear that not only would the court bar the State from
introducing any testimony about alleged homosexual acts by Mr. Cook on the night of
Ms. Edwards murder; it also barred Mr. Skeen and Mr. Dobbs from making any
remarks that even implied that Mr. Cook was gay.30 Yet both prosecutors repeatedly
violated that order, diverting the jurors attention from the lack of evidence against
Mr. Cook by appealing to homophobic stereotypes and casting Mr. Cook as a
pervert. Mr. Dobbs began by telling the jury in his opening statement that Mr.
Cooks friend Robert Hoehn an openly gay man who died of AIDS -- died in 1988
of a now very common illness. The court sustained the objection and warned him,
Mr. Dobbs, do not do that again. Absolutely. (1994 TT.XIX.37. 31 )

Yet the

references only became more egregious and explicit as trial proceeded. For example,
in summation, Mr. Dobbs was hardly subtle in asserting that the States witnesses had
29

See Exh. L at 17-18 (describing how Mr. Dobbs came to the County Jail to confront Mr. Cook
and speak with him about the evidence in the case outside his counsels presence, and the trial courts
finding that this was behind the back of Kerry Max Cooks attorneys and a breach of duty and
protocol).
Id. at 78 (quoting trial court admonitions to counsel, including, inter alia, the following: [I]t is
eminently clear at this point in the trial that the Court is not, at this point, going to admit the homosexual
activity. I dont want it back doored. I dont want it talked about . . . Once again, gentlemen. The Court
has made its ruling. The court is not going to let the [alleged] homosexuality come in. . . . The Court will
not permit anything that deals with homosexuality.
30

Given the voluminous trial record in this case, the transcripts of each of Mr. Cooks three trials
are being provided to the Court on CD along with his Memorandum of Law in support of his writ
application; they will be cited as T.T. with the year of the trial (1978, 1992, or 1994), volume, and page
numbers indicated.
31

Applicant Cook's Motion to Recuse Judge Christi Kennedy - Page 24

demonstrated Mr. Cooks sexual ambivalence. You know, we cant get into real
specific things with you, the law doesnt allow us to. You know whats going on. You
know what that means. (Id., 1994 TT., XXXI.2702-3) (emphasis supplied). He then
reminded the jury that Mr. Cook had allegedly socialized with a group of male friends
that included an interior designer and a hair dresser. (Id. at 2705.) Then-District
Attorney Skeen was even less restrained in the States final argument:
[I]t is not innuendo, it is not outrageous, it is evidence and testimony that
goes to show something about this defendant, as far as we can go, his
sexual ambivalence . . . just coming out and saying it, the homosexual on
his part. His is sexually ambivalent, he is homosexual, he is dysfunctional
within an hour of the murder, he has focused on Linda Jo Edwards. Id. at
2802.32
e. Knowingly false assertion about Mr. Cooks abuse and suicide attempts in
prison. As has been widely reported in the news media since his release, among
the unspeakable atrocities Mr. Cook endured during his time on death row was to
have the words GOOD PUSSY forcibly tattooed onto his buttocks by a group
of inmates who had sexually assaulted him. This permanent mutilation was
personally observed by Dr. Richard Coons, a forensic psychiatrist in Austin who
evaluated Mr. Cook before his 1994 trial, at which time he visually examined Mr.
Cooks body (including the tattoos); he opined that these acts of abuse had
subjected Mr. Cook to both continued humiliation and fear for his safety among
his fellow inmates, contributing to his suicide attempts while in prison. Yet Mr.
Dobbs argued on the District Attorneys behalf that these events were fabrications
32

It should also be noted that two decades later, despite the dramatic shift in public attitudes
towards gay and lesbian Americans since Mr. Cooks trials, the present Smith County District Attorney
has not hesitated to invoke the same false and hateful stereotypes as his predecessor did. See Exh. F:
Transcript of April 9, 2012 Motion to Recuse (assertion by D.A. Matt Bingham to the Court: the
way I understand it, [Hoehn] and Kerry Max Cook were in a sick relationship; a relationship of
homosexuality) (emphasis supplied).
Applicant Cook's Motion to Recuse Judge Christi Kennedy - Page 25

and that no mitigation existed in the case, to wit: You heard a lot about Mr.
Cook supposedly being raped down in the Department of Corrections and having
this tattoo put on his flanks that no one has seen that testified before this jury.33
Yet Mr. Dobbs knew from both Dr. Coons testimony and pretrial discovery that
Dr. Coons had personally interviewed Mr. Cook at the jail and observed his
injuries and tattoos, then testified to exactly what he had seen. Not only were
these remarks by the prosecution team calculated to mislead the jury and confuse
them about the expert mitigation testimony they had just heard. They perpetuated
a damaging and false myth about Mr. Cook (that he was a pervert, who had
attempted suicide after mutilating his own body and taking pleasure in doing so,
see Exh. L) that was adopted and perpetuated by other members of the Smith
County legal community including, upon information and belief, close friends
and associates of Judge Kennedy for years to come. (See Part 2, infra.)
***
There are two reasons why the above history is directly relevant to Mr. Cooks present
challenge to his 1999 conviction, and thus to whether Judge Kennedy can impartially preside
over his writ. First, Mr. Skeens and Mr. Dobbss history of unlawful conduct gave Mr. Cook a
specific, well-founded fear that history would repeat itself that if he were to reject the timeserved plea, these two prosecutors would continue to flagrantly violate the law in their zeal to yet
again convict him of capital murder. This factor is directly relevant to Mr. Cooks art.11.07
innocence claim under the CCAs opinion in Tuley.

See Exh. L: Appellants Opening Brief to the Court of Criminal Appeals, filed July 17, 1995 at
156-58 (discussing Dr. Coons observations and testimony); id. at 158 (quoting Mr. Dobbs).
33

Applicant Cook's Motion to Recuse Judge Christi Kennedy - Page 26

Second, this record is critical as to how the trier of fact will assess now-Judge Skeens
and Mr. Dobbss credibility when considering the new allegations of misconduct (in 1999-2003)
in Mr. Cooks present writ. Put another way, Mr. Cook contends that the history of misconduct
by Judge Skeen and Mr. Dobbs, as found by the CCA and/or documented in the undisputed trial
record, makes far less credible any sworn testimony these officials may give that they did not
suppress exculpatory evidence, intentionally destroy exculpatory evidence, or rely on false
testimony to induce and then protect Mr. Cooks 1999 conviction. It is imperative that the trier
of fact be in a position to acknowledge this history of egregious misconduct on the part of Judge
Skeen and former ADA Dobbs specifically, and consider its significance when hearing the
present allegations against them. That task is all but impossible when the Judges longtime
friends and colleagues are the individuals whose past misconduct and present credibility is at
issue.
2.

Present Due Process Claims, and Questions for Evidentiary Hearing

As set forth in Mr. Cooks Memorandum of Law in support of his writ (at 68-73), the
district court hearing this case will be required to resolve several serious due process claims that
directly implicate conduct by former DA Skeen and former ADA Dobbs. Specifically, Mr. Cook
alleges that these officials, and/or those working under their supervision (1) failed to disclose
material, exculpatory Brady evidence they possessed before Mr. Cooks February 1999 plea
later confirmed in an April 1999 DNA report issued by the DPS laboratory that James
Mayfield, and not Mr. Cook, was the source of the semen in the underwear torn from Ms.
Edwards body by her killer; and (2) selectively authorized the destruction of critical DNA
evidence in 2001 -- including hair recovered from Ms. Edwards buttocks that was already
known to be exculpatory, but which had never before been subjected to DNA testing -- in

Applicant Cook's Motion to Recuse Judge Christi Kennedy - Page 27

violation of Arizona v. Youngblood, 488 U.S. 51 (1988), California v. Trombetta, 467 U.S. 479
(1984), and Texas then-newly enacted DNA testing statutes.
Each of these claims will require an evidentiary hearing at which Judge Skeen and Mr.
Dobbs will be the key witnesses. The questions to be asked of these former prosecutors are no
mere fishing expedition. They are substantive, specific areas of inquiry arising from an
extensive documentary and testimonial record that presently raises almost as many questions as
it answers. Among the questions to be asked of Judge Skeen and Mr. Dobbs are the following:
a. Brady Claims Regarding Mayfield and Exculpatory DNA Testing
(1)

When, and from whom, did you learn that the DNA testing of the semen
stain in Ms. Edwards underwear excluded Mr. Cook?

(2)

When, and from whom, did you first learn that the DNA was consistent
with James Mayfield?

(3)

Why did James Mayfield take another privately administered polygraph


test on February 12,

1999, after semen was detected on Ms. Edwards

underwear?
(4)

Why was a copy of the polygraph report immediately sent to ADA


Dobbs? Who requested the

polygraph, and did it have anything to do

with information the State had received about the DNA testing?
(5)

What information did you have concerning the DNA testing results (even
if verbal or preliminary) prior to offering Mr. Cook his no contest plea?

(6)

What bearing did the information you had concerning the DNA testing
and its likely or actual outcome have on your decisions during the plea
negotiations with Mr. Cook?

Applicant Cook's Motion to Recuse Judge Christi Kennedy - Page 28

(7)

Why did prosecutors tell the news media that the principal reason Mr.
Cook was suddenly offered a time-served plea on the eve of trial was the
unavailability of Robert Hoehns testimony when Mr. Skeen and Mr.
Dobbs knew for over eighteen months that, under the CCAs ruling,
Hoehns testimony would not be admissible?

(8)

Who made the decision as to what information to provide Mr. Cooks


lawyers concerning the DNA testing prior to the entry of the no contest
plea?

(9)

Why did no one from the District Attorneys Office provide Mr. Cooks
counsel with a copy of the 1999 DNA report immediately after it was
issued?

(10) What discussions did you have with James Mayfield or his lawyer
concerning the DNA testing on Ms. Edwards underwear, and the likely
result of that testing?
(11) Why did Mayfield have to be compelled to give a DNA sample after his
attorney had earlier told the news media that Mayfield was delighted to
have the opportunity to cooperate with the States testing?
(12) At any time did Mayfield or his counsel admit to prosecutors, or any other
State official, that he had testified falsely when he claimed that he had not
had sexual relations with Ms. Edwards for several weeks before her
murder?
(13) Did anyone in the District Attorneys Office confront Mayfield or his
attorney about the falsity of his earlier testimony after receiving the DNA

Applicant Cook's Motion to Recuse Judge Christi Kennedy - Page 29

results? Why or why not? How, if at all, did Mayfield now explain the
presence of his semen on the underwear torn from Ms. Edwards body by
her killer?
b.

Claims Regarding Destruction of Evidence


(1)

Why was DNA testing on the foreign hair found on Ms. Edwards
buttocks suddenly halted, despite the fact that ADA Dobbs had told the
laboratory the day after Mr. Cooks February 16, 1999 plea hearing to
continue with DNA testing? Who gave the order to stop the testing and
retrieve the hair evidence from DPS, and why?

(2)

Why were select items of evidence from Mr. Cooks case destroyed in
2001, more than two years after Mr. Cooks plea?

(3)

Who in the District Attorneys Office, when that office was headed by Mr.
Skeen, was responsible for ensuring that law enforcement officials
understood and complied with their statutory and constitutional
obligations to preserve exculpatory evidence, including DNA evidence?

(4)

What impact did the fact that in 2001, Texas passed a law allowing
persons who pled nolo contendere to seek post-conviction DNA testing for
the first time, have on the States decision to selectively destroy DNA
evidence in Mr. Cooks case that very same year? Was Mr. Skeen aware
of the new law, and was he concerned that Mr. Cook would obtain counsel
and file such a motion?

(5)

Who requested permission to destroy the evidence, and why?

Applicant Cook's Motion to Recuse Judge Christi Kennedy - Page 30

(6)

Who decided what items to destroy and what items not to destroy, and
what were the criteria for this decision? Why were some items destroyed,
and others not destroyed? For instance, why were the scissors and statute
(potential murder weapons) destroyed and the knife (potential murder
weapon) not destroyed?

Why were the panties, bra and blue jeans

destroyed and the bedspread, pillow and blouse not destroyed? Why was
the hair located from the base of the victims buttocks destroyed which
prosecutors already knew was not from Mr. Cook, yet had never compared
to James Mayfield -- but other hair evidence was not destroyed? Why
were all latent fingerprints, except Mr. Cooks, recovered at the crime
scene destroyed?
(7)

Why were some items of evidence, such as the knife and a sample of Mr.
Cooks hair, allowed to be kept by a former Detective as a souvenir?
Who authorized this?

(8)

Why was no notice sent to Mr. Cook or his attorneys prior to the
destruction of evidence?

(9)

Why did the Tyler Police Department destroy evidence when the Tyler
Police Department Property Unit Request for Disposition of Evidence
form specifically did not authorize the destruction of the property?

(10) Numerous items of evidence such as the stockings found in the victims
jeans, and the note in her pocket -- are not accounted for on the States
present lists of either retained or destroyed evidence. Where are these
items?

Applicant Cook's Motion to Recuse Judge Christi Kennedy - Page 31

(11) On the Tyler Police Department Property Unit Request for Disposition of
Evidence Report dated December 5, 2001, under DA Case Info (If
Known), the words See Attached are typed. However, there is no
attachment in the information provided the Court or Mr. Cooks attorneys.
Where is this attachment? What does this attachment say? Why was this
attachment not provided to Judge Ovard? What does that document
indicate about the involvement and knowledge of District Attorney
Skeens office in the selective destruction of the evidence in Mr. Cooks
case?

If, as expected, Judge Skeen and his former Chief Felony Prosecutor deny that they were
aware of any such exculpatory evidence prior to Mr. Cooks 1999 plea, or played any role in the
States unlawful destruction of DNA evidence in 2001, the district court will need to decide
whether their denials are credible. This is a highly sensitive task that, for obvious reasons,
should not be given to one of Judge Skeens present colleagues much less a judge to whom he
personally administered the oath of office when she took the bench just six years ago.
C.

Judge Skeen Repeatedly Vouched for the Innocence and Credibility of


the Man Who Has Now Been Inculpated by Post-Conviction DNA Testing

Separate and apart from any allegations of intentional misconduct on the part of his
former prosecutors, Mr. Cooks DNA-based actual innocence claim provides yet another reason
that one of Judge Skeens colleagues should not preside over the writ. Granting relief on that
claim would necessarily entail a finding that as District Attorney, Judge Skeen had repeatedly
vouched for the credibility and innocence of Ms. Edwards true killer, James Mayfield.

Applicant Cook's Motion to Recuse Judge Christi Kennedy - Page 32

During Mr. Cooks 1992 and 1994 trials before any DNA evidence was available
showing that Mayfield, and not Mr. Cook, was the source of the semen on Ms. Edwardss
underwear then-DA Skeen repeatedly insisted upon the truth of Mayfields sworn testimony
that he and Ms. Edwards were not sexually involved at the time of her death. He assured the jury
that the murder occurred a long time after their [sexual] relationship was over, and thus that
Mayfield had no motive to plung[e] this butcher knife into the back of Linda Jo Edwards so far
that it goes through and perforates [her] ribs.34
Even more significantly, Mr. Skeen directly and repeatedly argued that Mayfield had
been cleared by the State of any role in the murder, and that the jury should not be misled by the
defenses efforts to portray him as the real killer. For example, he argued:
This was not a crime committed by Jim Mayfieldbut Jim Mayfield is on trial here.
And thats why Im so glad we called Jim Mayfield down here because the defense is
trying Jim Mayfield.35
...
I submit that after you saw Jim Mayfield testify, I submit youll reach the conclusion that
Jim Mayfield did not commit this crime. This is not a crime committed by Jim Mayfield.
This is a crime committed by someone such as that defendant sitting right here.36
...
I submit to you that Jim Mayfield is a credible witness. How difficult do you think it was
for him to come in here, take this witness stand and sit and talk about what he had been
doing with Linda Jo Edwards under all the questions he was asked? But he came in here
and did it and you got to see him and I submit he is a credible witness and a believable
witness. 37

34

1992 T.T., 12/14/92 at 120-21.

35

Id. at 122 (emphasis supplied).

36

Id. (emphasis supplied).

37

Id. at 131 (emphasis supplied).

Applicant Cook's Motion to Recuse Judge Christi Kennedy - Page 33

And if you believe Jim Mayfield, if you believe Jim Mayfield and you find him credible
and you dont believe Jim Mayfield committed this crime, which I submit to you the
evidence clearly shows he did not, who does this come right back to? Kerry Max Cook.
And thats why the defense has tried to run you off on this rabbit trail on Jim Mayfield,
because they cant sit here and try this case just trying to show you why its not Kerry
Max Cook[.]38

In light of this history, it is not difficult to see why any judge presently serving alongside
Judge Skeen on the Smith County District court would have difficulty being impartial (much less
being perceived as impartial) in adjudicating Mr. Cooks DNA-based actual innocence claim.
That claim turns on his assertion that new DNA evidence including testing with new
technology in 2012-15, not previously available to any party combined with the other evidence
in the record, demonstrates that Mayfield, and not Mr. Cook, was the person who violently
murdered Linda Jo Edwards in June 1977. A judicial finding that this claim has merit is
tantamount to a finding that Judge Skeens unwavering confidence in Mayfield over a twentyyear period was, at the very least, badly misplaced. Such a finding also means that Judge
Skeens errors caused Mr. Cook to nearly be executed for a crime he did not commit, and
allowed the real killer to walk free. Thus, even if the trier of fact does not find that Judge Skeen
did anything unlawful in prosecuting Mr. Cook, an innocence finding in Mr. Cooks favor would
be both personally and professionally humiliating to Judge Skeen.
As other former capital prosecutors have powerfully described, public shame and private
guilt often results when new evidence emerges that they wrongfully secured the death sentence
of an innocent man, particularly when the prosecutor (as here) also failed to follow up on earlier
evidence pointing to the actual perpetrator. See, e.g., Marty Stroud, Lead Prosecutor Apologizes
for Role in Sending Man to Death Row, Shreveport Times, March 24, 2015 (acknowledging
how, as a young prosecutor in 1984, his arrogan[ce] led him to wrongfully convict capital
38

Id (emphasis supplied).

Applicant Cook's Motion to Recuse Judge Christi Kennedy - Page 34

defendant Glen Ford while ignoring available evidence pointing towards the real killer: I
apologize to Glen Ford for all the misery I have caused him and his family. I apologize to the
family of [the victim] for giving them the false hope of some closure. . . . [I] hope that
providence will have more mercy for me than I showed Glenn Ford. But I am sobered by the
realization that I am certainly not deserving of it); Rita Radostitz, Prosecutor Owns Up to
Going After Innocent Man, Austin Chronicle, April 14, 2006 (describing remarks by former San
Antonio DA Sam Millsap that it was painful beyond description to learn of new evidence that
executed death row inmate Ruben Cantu, whom Mr. Millsap had prosecuted, was in fact
innocent, and caused him to reverse his earlier support for capital punishment).
Of course, not all prosecutors in wrongful conviction cases exhibit such grace and their
lack of contrition may exacerbate the publics outrage. Former Judge Anderson is the most
prominent recent example.

See, e.g., Pamela Colloff, Why Michael Mortons Prosecutor

Finally Resigned, Texas Monthly, September 26, 2013 (in testimony at the Morton Court of
Inquiry, Anderson took a sarcastic, defiant tone, discounting the importance of the inquiry itself
and casting himself as the victim and seemed more sensitive to his own legacy . . . than to the
ordeal of the man he had wrongly convicted); Exonerees case makes argument for reform
(editorial), Dallas Morning News, February 11, 2013 (stating that Andersons denial of personal
responsibility in the Morton conviction sounded like an adolescent dodge, but that his
obnoxious stubbornness could help the cause of justice by highlighting need for systemic
reform).
Given the history of this case, it seems extremely unlikely that Judge Skeen, ADA
Dobbs, or any other individual involved in Mr. Cooks wrongful prosecution will ever
acknowledge their errors, much less apologize to Mr. Cook and his family.

Applicant Cook's Motion to Recuse Judge Christi Kennedy - Page 35

But certainly, no

present colleague of Judge Skeens should be in a position of determining whether such an


apology is warranted.
D.

Other Considerations Regarding Smith County Judiciary


1.

Smith County Law Enforcement and Its Win at All Costs History

Mr. Cook's case involves misconduct by a succession of Smith County prosecutors, as


well as numerous law enforcement officers working for the Tyler Police and Sheriffs
department. Mr. Cook has alleged that his wrongful conviction was not just due to the actions of
one or two rogue individuals; instead, he asserts, James Mayfield escaped justice for four
decades and an innocent man was prosecuted because of the systemic incompetence,
lawlessness, and malice towards persons accused of crimes that is deeply embedded within
Smith Countys legal system. Any judge hearing this case will be required to consider the
actions and omissions of numerous Smith County officials, some of whom still today hold office
and/or wield great power and influence in Smith Countys legal community. In order to satisfy
the Constitutional requirement that disposition of Cook's case embody, at an absolute minimum,
the appearance of impartiality, Judge Kennedy should be recused and a judge from outside Smith
County should be appointed.
Mr. Cooks allegations regarding Smith County are not made in a vacuum. The Smith
County Justice System has been regularly and harshly criticized for decades on issues unrelated
to Mr. Cook. David Ellsworth excoriated it in Smith County Justice, a powerful book recounting
systemic corruption in the Tyler police force and justice system in the 1970s. Other sources have
included The Dallas Morning News, the Houston Chronicle, Texas Monthly, and other news
outlets as early as the fall of 1980, when Hugh Downs and Barbara Walters opened an episode of
ABC's 20/20 with "Runaway Justice: Crime and Corruption Marks the Small East Texas Town

Applicant Cook's Motion to Recuse Judge Christi Kennedy - Page 36

of Tyler, Texas."

Based on an extensive investigation by The Dallas Morning News into

allegations of corruption, 20/20 reported that Smith County officials appeared to have framed
over 100 suspects on charges that were later proven false.
As District Attorney, Judge Skeen and his chief assistants, David Dobbs and Alicia
Cashell, unsuccessfully sued the Houston Chronicle for libel after the paper ran a series of stories
sharply critical of Smith County prosecutors and their maltreatment of criminal defendants.39
One of the cases highlighted by the Chronicle was Mr. Cook's own case. Judge Skeen, Mr.
Dobbs and Ms. Cashells claims were soundly rejected when the Texas Supreme Court found, in
a unanimous opinion (9-0), that the Houston Chronicle was entitled to summary judgment.40
Moreover, Mr. Cooks case is the best-known and most notorious of the many that have
tarred Smith Countys national reputation.

By virtue of his widely-read and well-received

book,41 Mr. Cook has appeared on a number of highly-rated programs, including Good Morning
America, the Diane Rehm Show on N.P.R., the Dan Abrams Show on MSNBC, as well as
countless other talk shows and media outlets. PBS showcased Mr. Cook's account of why he
was compelled to accept a time-served plea despite his factual innocence in an award-winning
episode of Frontline. Mr. Cook continues to speak frequently to groups of attorneys, students,
business leaders, and others about his ordeal and his continuing quest for full legal exoneration.

See Evan Moore, Win at All Costs is Smith Countys rule, critics claim, Houston
Chronicle, June 11, 2000 (available at http://www.chron.com/news/article/Win-at-all-costs-is-SmithCounty-s-rule-1632942.php).
39

40

See Hearst Corp. d/b/a, The Houston Chronicle v. Skeen, Dobbs and Cashell, 159 S.W.3d 633
(Tex. 2005).
41

Mr. Cook is the author of Chasing Justice: My Story of Freeing Myself After Two Decades on
Death Row For a Crime I Didn't Commit (William Morrow/Harper Collins 2007).

Applicant Cook's Motion to Recuse Judge Christi Kennedy - Page 37

Regardless of outcome, the proceedings on Mr. Cooks writ will yet again bring national
and international attention to the inner workings of Smith Countys justice system, particularly
since it involves new allegations of suppressed and illegally destroyed DNA evidence. Indeed,
even the filing of Mr. Cooks unopposed DNA testing motion in 2012 was covered extensively
by the Texas and national news media.42 The public needs to have confidence that these claims
will be fully and fairly adjudicated by a neutral fact-finder, i.e., one not currently employed by
Smith County, and who lacks such extensive personal and professional connections to those
involved in Mr. Cooks prosecution.
2. Close Ties Abound Among Judiciary and Prosecutors in Mr. Cooks Case
The extremely close ties between the most powerful officials in the Smith County justice
system are notorious, far exceeding the norm even among similarly-sized and close-knit legal
communities. As detailed in the Houston Chronicle, Smith County is "a community in which
intermarriage and blood ties abound." Evan Moore, "Win at all Costs is Smith County's Rule,
Critics Claim," Houston Chronicle, June 11, 2000.43 For example:
Assistant District Attorney Alicia Cashell is married to a Tyler police detective
and sometimes prosecutes cases her husband investigates. County Court-at-Law
Judge Randall Rogers' wife, Lois, works as court coordinator for County Court-atLaw Judge Thomas Dunn, whose court coordinator, Anne Bingham, is married to
Assistant District Attorney Matt Bingham.
Dunn's wife, Vickie, who formerly worked in the district attorney's office, now
works as clerk for state District Judge Carole Clark.

See, e.g., Michael Hall, Released but Not Exonerated, a Man Fights for Freedom, New York
Times, March 31, 2012; Diane Fanning, 2 Decades on Death Row, 15 Years in Limbo: Kerry Max
Cooks Struggle for Justice, Forbes, May 21, 2012; Associated Press, Texas Inmate Receives New
DNA Test, Houston Chronicle, April 9, 2012; Gretchen Gavett, Cleared by DNA, Texas Man Still
Fighting to Clear His Name, PBS.org, April 2, 2012.
42

See Evan Moore, Win at All Costs is Smith Countys rule, critics claim, Houston
Chronicle, June 11, 2000 (available at http://www.chron.com/news/article/Win-at-all-costs-is-SmithCounty-s-rule-1632942.php).
43

Applicant Cook's Motion to Recuse Judge Christi Kennedy - Page 38

Judge Clarks husband, A. D. Clark [III], now with the Texas Attorney General's
Office, preceded Skeen as district attorney and held that office when the Cook
case was filed.
And A. D. Clark is Jack Skeen's first cousin.44

Additionally, A. D. Clark III's father, A. D. Clark II, represented the murder victim in this
case in her divorce proceedings against Bobby Lester. A. D. Clark also then represented James
Mayfield in his divorce petition filed (and then withdrawn) against his wife, Elfriede Mayfield,
which arose directly from the affair that Mayfield had with the murder victim in this case. Judge
Carole Clark, who is identified as A. D. Clark III's wife, is the current Judge of the 321st District
Court of Smith County. A. D. Clark III was the District Attorney who initially prosecuted Cook.
Indeed, the direct involvement of the Smith County judiciary in Mr. Cook's case goes
beyond the 241st District Court. After the no-contest plea was entered in this case in February
1999 (meaning, among other things, that jeopardy had attached by reason of Mr. Cooks plea),
on her own initiative, then-Judge Cynthia Kent of the 114th District Court suddenly convened a
grand jury to investigate Ms. Edwards murder and Mr. Cooks potential culpability. The
foreman of the grand jury convened by then-Judge Kent, attorney Keith W. Starr, was a former
Smith County ADA who, in the 1980s, assisted then-DA Skeen in his efforts to carry out Mr.
Cooks execution; Mr. Starr was also a law partner in Judge Kents husbands law firm at the
time the grand jury was convened. This grand jury, which Mr. Cooks counsel alleged at the
time was convened for no other reason than to justify Mr. Cooks conviction and further harass
and intimidate him, was eventually disbanded when its term expired with no action being taken.
After the grand jury was disbanded, Judge Kent then took the highly unusual step of writing a

44

Id.

Applicant Cook's Motion to Recuse Judge Christi Kennedy - Page 39

letter to DA Skeen dated September 30, 1999 to justify her actions, in which she made bizarre
and unprofessional observations regarding Mr. Cook and his claim of actual innocence:
Mr. Cook and his attorneys have issued many public and inflammatory statements
regarding the crime, for which he has been convicted, regarding your office, and
regarding my grand jury. No one may publicly comment on what, if anything,
this grand jury was considering. I would, however, have two observations.
1.

Either Mr. Kerry Max Cook is an innocent man, falsely convicted upon his
accepting a plea bargain, and there is a vicious capital murderer loose on
our streets waiting to be brought to justice; or

2.

Mr. Kerry Max Cook is a self-mutilating, justly convicted capital murderer


who pleaded no contest and received his just sentence.45

Judge Kent's sua sponte convening of an illegal grand jury, and her inappropriate
commentary regarding Mr. Cooks personal history and legal status, is another troubling example
of the extent to which Smith County officials, even those with no direct involvement in his
original prosecution, have remained invested in the outcome of these proceedings.
Judge Kennedy presently holds the judicial position occupied by Judge Kent on the 114th
District Court for many years. (After retiring from the bench, Ms. Kent returned to work in the
Smith County District Attorneys Office, i.e., the agency that is now opposing Mr. Cooks
habeas petition.)
Yet another member of the Smith County judiciary with direct involvement in Mr.
Cooks case is former County at Law Judge Thomas Dunn. Judge Dunn and Judge Kennedy
served in the same Smith County courthouse, on the same floor, for more than six years, until
Judge Dunn retired in 2014. In recent news coverage of his retirement, the Tyler Morning
Telegraph featured a photograph of Judge Dunn posing with his judicial colleagues Christi
Kennedy and Jack Skeen, along with a quote from Judge Dunn explaining how much he would
45

See Exh. M: Letter from Judge Cynthia Stevens Kent to District Attorney Jack Skeen, Jr. dated
September 30, 1999
Applicant Cook's Motion to Recuse Judge Christi Kennedy - Page 40

miss his tenure on the Smith County bench, because [i]ts like one big family up here; an
extended family.46
This close family relationship with both former Judge Dunn and current Judge Skeen
powerfully underscores why Judge Kennedy could not possibly be viewed by a reasonable
member of the public as impartial were she to preside over Mr. Cooks writ, given the direct
roles each of these judicial colleagues played in obtaining Mr. Cooks convictions and death
sentences. In 1978, Judge Dunn served as one of the trial prosecutors who secured Mr. Cooks
first conviction and death sentence a trial that was marred by numerous acts of egregious
misconduct cited by the CCA in its 1996 opinion excoriating police and prosecutors. Then-ADA
Dunns co-counsel in the 1978s trial was Michael Thompson, who committed suicide in 1978,
shortly after it was widely reported that prosecutors had knowingly sponsored the false testimony
of an informant witness, Edward Shyster Jackson, at Mr. Cooks trial. Former Judge Dunn also
testified against Mr. Cook in 1994, and was listed as a States witness for the 1999 trial that
resulted in the instant plea.

See Mem. of Law in Supp. of Writ at 7-24 (discussing history).

3. Additional Personal and Professional Ties to Officials Involved in Mr.


Cooks Prosecution
The foregoing clearly provides more than sufficient grounds for a reasonable member of
the public to question whether Judge Kennedy can impartially hear and resolve such serious
claims of misconduct regarding her own close colleagues. However, Mr. Cook would be remiss
if he did not draw the Courts attention to still further personal and professional ties between
Judge Kennedy and the former officials whose conduct is at issue here. Even a cursory review of
readily-available public records provides grounds to conclude that her personal relationships
with the key State players in the case are sufficiently close in nature that she cannot fairly be
See Exh. N: Casey Murphy, Judge Dunn Stepping Down After 18 Years, Tyler Morning
Telegraph, Dec. 18, 2014.
46

Applicant Cook's Motion to Recuse Judge Christi Kennedy - Page 41

asked to judge their credibility and determine whether they committed deliberate misconduct in
securing Mr. Cooks conviction. To cite just a few examples:
1. Relationships with Their Spouses and Children. More than just serving on the
bench alongside Judge Skeen, and her other professional associations with members
of the Cook prosecution team, Judge Kennedy also appears to have close social and
community ties to these officials wives and children. For example:

Judge Kennedy is Facebook friends with Barbara Skeen (wife of Judge


Skeen); Deborah Tittle-Dobbs (wife of former ADA David Dobbs); Robyn
Files (the wife of Buck Files, who represented alternate suspect James
Mayfield for more than twenty years, including during the critical pre-plea
proceedings and DNA testing occurring in 1999 in which Mr. Cook alleges
that the State suppressed evidence of Mayfields guilt); and with the Files
son, Trey Files. Importantly, more than representing the sort of casual online
associations with members of the community that courts have recognized are
appropriate for an elected Judge and do not, without more, indicate the
potential for bias, the publicly-available Facebook postings for these
individuals appear to indicate these are real-life friendships, not just online
contacts.47 For example, when Judge Skeens wife recently posted a photo

As the Court of Appeals recently concluded, a friend designation on Facebook between a


judge and a litigant or witness does not, standing alone, require the judges recusal. Youkers v. State,
400 S.W.3d 200, 205-06 (Tex.App.-Dallas, 2013) (pet. refd) (emphasis supplied). Although judges are
not barred from participating in social media, the use presents concerns unique to the role of the
judiciary in our justice system, as [a]n independent and honorable judiciary is essential to justice in our
society. Id. at 205 (internal citation omitted). As this Court observed, the online friend designation
does not in and of itself establish whether the judge and the friend have met; are acquaintances that met
only once; are former business acquaintances; or have some deeper, more meaningful relationship that
might require the judges recusal. Id. (emphasis supplied); see also id. at 206-07 (reasoning that in
Youker, recusal was not warranted because the judge and witness in question had met only briefly while
47

Applicant Cook's Motion to Recuse Judge Christi Kennedy - Page 42

and bulletin that their son Carter had won a local acting prize, Judge Kennedy
quickly posted in response, Way to go, Carter! Another of Judge and Mrs.
Skeens sons, Jack III, has worked as a clerk at the small law firm Flowers
Davis, where Judge Kennedy practiced for nearly a decade before becoming a
judge.48 See Exh. O attached.

Judge Kennedys late husband, Richard Kennedy, was a longtime colleague of


former ADA Deborah Tittle-Dobbs (who appeared for the State at Mr. Cooks
1992 trial, and who is married to former ADA David Dobbs). Both graduated
from South Texas College of Law in 1991, and both were hired by the Smith
County District Attorneys Office in their first jobs after law school. Ms.

running for office at the same time; the judge immediately disclosed his brief Facebook communication
with the witness and ceased further contact; and the witness (the victims father) was not adverse to the
defendant in any event because the family had sought leniency for him.)
With respect to Judge Kennedy, however, her Facebook contacts do appear to indicate precisely
the sort of deeper, more meaningful relationship with the principal adverse parties in Mr. Cooks case
that would call into question her ability to be impartial. Further, even if the Facebook connections and
messages standing alone do not themselves warrant her recusal, they certainly raise a sufficiently
reasonable inference of Judge Kennedys close ties to these individuals and their families, which, if
necessary, can be further developed at a hearing, as they were in Youker.
Testimony and evidence developed at a hearing could well confirm that what is on the public
Facebook pages of these individuals is merely the tip of the iceberg in terms of the nature and
frequency of their social contacts with Judge Kennedy, both online and offline. For example, the Court
could inquire whether Judge Kennedy socializes with the Skeen and Dobbs families; how often they do
so; whether they have attended one anothers important milestone events (such as weddings, graduations,
childrens birthdays, holiday parties), etc. See, e.g., State v. Forguson, 2014 WL 631246 at *13 (Tenn.
Crim. App. Feb. 8, 2014) (mem.) (Witt, J., concurring) (emphasizing that courts failure to recuse judge
based on Facebook contact with witness in case before it should not stand for the proposition that a
Judges Facebook contact with a litigant or a key witness for a litigant poses no ground for
disqualification. . . . [O]ne cannot reasonably expect a judge living in a small community to recuse
himself or herself because he or she is acquainted with a litigant or a key witness. When a judge shares a
Facebook friendship with such a person, however, the aggrieved party may be able to show that the
social media relationship is more active, regular, and intimate than mere incidental community
propinquity would suggest.) (emphasis supplied).
Jack Skeen IIIs public profile does not indicate whether he worked with Judge Kennedy during
her time at the firm, or joined the firm thereafter. But it is certainly reasonable, in a case of this
magnitude, to inquire whether Judge Kennedy assisted her colleagues son in obtaining this position,
insofar as it might indicate the sort of close ties that would make it inappropriate for her to make findings
regarding whether or not Judge Skeen committed prosecutorial misconduct in a capital case.
48

Applicant Cook's Motion to Recuse Judge Christi Kennedy - Page 43

Tittle-Dobbs and her future husband David Dobbs served as two of the lead
trial prosecutors at Mr. Cooks 1992 trial, with Mr. Dobbs continuing to
appear for the State in Mr. Cooks 1994 and 1999 proceedings. Further, in
1999, the Dobbs Real Estate Partnerships, L.P. purchased the building in
which Mr. Kennedy rented office space, and the Dobbs family was Mr.
Kennedys landlord for approximately eight years. See Composite Exh. P,
attached.
2. Campaign Donations.

Former ADA Dobbs donated $1000 -- the maximum

allowable donation to Judge Kennedys first judicial campaign in 2007-08. He also


served as Treasurer for Judge Skeens reelection campaign that same year. Buck
Files, the longtime attorney for suspect James Mayfield, also donated the maximum
amount to Judge Kennedys campaign. See Exh. Composite Exhibit Q, attached.
3. Charitable and Community Activities.

Judge Kennedy is a member of Smith

County Republican Women, volunteers with the SPCA of East Texas, and previously
served as a Director of the East Texas Symphony Orchestra and Womens Symphony
League all organizations in which key witnesses in this proceeding and/or their
spouses are active or have held leadership positions.49
To be clear: there is nothing improper about Judge Kennedy having social and
professional relationships of this kind with her fellow judges, local attorneys, and members of
their families, nor from soliciting and accepting their donations to her campaign as permitted by

49

For example, former ADA Deborah Tittle-Dobbs is the Principal Officer of the SCPA of East
Texas. Judge Kennedy and Ms. Tittle-Dobbs were photographed together at the SPCAs annual
fundraiser (with coverage of the event in BSCENE Magazine), and Judge Kennedy was asked to serve as
a celebrity judge at a Halloween fundraiser for the SPCA organized by Mrs. Tittle-Dobbs in 2013. See
Exh. R, attached.
Applicant Cook's Motion to Recuse Judge Christi Kennedy - Page 44

law. Certainly, judges do not forfeit [their] right to associate with friends and acquaintances nor
[are they] condemned to live the life of a hermit. Youker, 400 S.W. 3d at 205 (internal citation
and alterations omitted). But that is a very different question than whether Judge Kennedy can
be impartial much less appear to be so when her close friends, donors, and colleagues are
alleged to have deliberately violated the law in the most infamous capital murder case in Smith
County history.
E. Extrajudicial Information Regarding Mr. Cook
The Cook prosecution is the most high-profile case ever brought in Smith County. It
spanned over 20 years and was led by several generations of Smith Countys most powerful law
enforcement officials. The possibility that any person who works in the Smith County justice
system has not had conversations about the Cook case, and obtained information concerning it, is
extremely remote. It is difficult to imagine that anyone in Smith County, including Judge
Kennedy, does not already have an opinion on Mr. Cooks case, or has not at least spoken with
friends, colleagues, or family members who have strong opinions regarding the case.
The likelihood that Judge Kennedy may have received extrajudicial information
regarding this case (before taking the bench) is heightened by the fact that her late husband of
seventeen years, Richard Kennedy, was himself an Assistant District Attorney in the Smith
County District Attorneys Office during two of Mr. Cooks capital trials (in 1992 and 1994).
Mr. Kennedy died unexpectedly of natural causes on May 13, 2015. Upon information and
belief, in the early-mid 1990s, the Smith County District Attorneys Office was small and closeknit, with fewer than twenty Assistant District Attorneys working directly under then-DA Skeen.
Mr. Kennedy did not enter an appearance on the States behalf in the Cook case during his tenure
with the District Attorneys Office, nor (insofar as Mr. Cook is aware) did Mr. Kennedy ever

Applicant Cook's Motion to Recuse Judge Christi Kennedy - Page 45

work directly on the Cook matter while employed as a Smith County ADA. However, upon
information and belief, Mr. Kennedy was known to have personally expressed his strong view
that Mr. Cook was guilty of capital murder, and to have harbored antagonistic feelings towards
Mr. Cook during his lifetime. Given the foregoing, and the high profile nature of the Cook case
throughout the County, it is difficult to imagine that Mr. Kennedy did not at any time share these
views with his wife before she became a judge.
Thus, to the extent that the other grounds asserted supra for relief are not deemed
sufficient for Judge Kennedy to recuse herself or for the Administrative Judge to enter an order
of recusal, the Court should hold a hearing at which the question of whether Judge Kennedy
received extrajudicial information about the case -- sufficient to cause a reasonable member of
the public to question her ability to be fair and impartial -- can be developed and considered.
F.

Potential Consequences of a Ruling by Judge Kennedy in Mr. Cooks Favor

Yet another reason it would be inappropriate for Judge Kennedy to make findings with
respect to Mr. Cooks writ is that this proceeding could well have significant personal and
professional consequences for Judge Skeen and former ADA Dobbs, among others. In the
Michael Morton case, the revelation that former Judge Anderson had, as District Attorney,
wrongfully prosecuted an innocent man after failing to disclose key Brady material did not just
lead to a highly public fall from grace after a once-prominent career in Williamson County.50
It also led to simultaneous civil and criminal prosecutions, by the State Bar of Texas and a
Special Prosecutor appointed after the Court of Inquiry found probable cause to believe Mr.
Anderson had committed three separate criminal offenses. Ultimately, Judge Anderson pled to
criminal contempt (for falsely telling the trial court in 1987 that he had no Brady material to
See Pamela Colloff, Why Michael Mortons Prosecutor Finally Resigned, TEXAS MONTHLY,
Sept. 26, 2013, available at http://www.texasmonthly.com/articles/why-michael-mortons-prosecutorfinally-resigned/
50

Applicant Cook's Motion to Recuse Judge Christi Kennedy - Page 46

disclose to the defense), for which he served 8 days in jail; he then avoided trial in the State Bar
suit by agreeing to permanently surrender his license to practice law.51 Nor is the Anderson case
unique. Indeed, since resolving the case against Judge Anderson, the State Bar of Texas has
shown a renewed commitment to seek discipline against former prosecutors who are alleged to
have committed serious misconduct, even decades after the acts in question occurred. Just last
month, for example, the State Bar of Texas disbarred former Burleson County District Attorney
Charles Sebesta, after finding that he deliberately violated no fewer than five different tenets of
the Texas Code of Professional Conduct during the 1994 capital prosecution of Anthony Graves.
Former DA Sebestas misconduct had caused Mr. Graves to wrongfully serve over eleven years
on death row, before the Fifth Circuit granted Brady relief and a special prosecutor declared Mr.
Graves actually innocent when the case was reinvestigated.

Indeed, former DA Sebestas

misconduct was found to be so egregious and deliberate that he may also face criminal charges,
with some in the legal community calling for him to be charged with attempted murder. 52
Similarly, the State Bar has a disbarment action pending against another former
prosecutor and District Judge, John Jackson, based on new evidence that Mr. Jackson secured the
execution of former death row inmate Cameron Todd Willingham by, inter alia, (1) failing to
disclose key Brady material and (2) sponsoring false informant testimony to convict Mr.
Willingham and ensure that his execution would be carried out..53

51

See supra at 36.

See, e.g., Pamela Coloff, Ex-DA Who Sent Exoneree Anthony Graves to Death Row is
Disbarred, Texas Monthly, June 12, 2015; Brian Rogers, Prosecutor in Graves case disbarred in rare
move, Houston Chronicle, June 12, 2015.
52

See, e.g., Alan Turner, State Bar accuses prosecutor in Willingham triple murder case of
improper conduct, Houston Chronicle, March 18, 2015.
53

Applicant Cook's Motion to Recuse Judge Christi Kennedy - Page 47

In light of the recent changes in Texas law and the State Bars actions in the Morton,
Graves, and Willingham cases, it is clear that at no time in this States history have former
prosecutors ever faced such a serious risk of personal and professional consequences for
misconduct as they do now, particularly if a court hearing a writ finds that the prosecutor
committed deliberate misconduct. Findings and conclusions in Mr. Cooks favor, if adopted by
the Court of Criminal Appeals, could well lead to civil and even criminal consequences for Judge
Skeen. This is a powerful reason why none of his present colleagues on the Smith County bench,
including Judge Kennedy, should preside over this writ.
V.
Duty of Court Upon Filing of Recusal Motion
Tex. R. Civ. P. 18a(f) states the following:
(f)

Duties of the Respondent Judge; Failure to Comply.

(1)
Responding to the Motion. Regardless of whether the motion
complies with this rule, the respondent judge, within three business days after the
motion is filed, must either:
(A)

sign and file with the clerk an order of recusal or disqualification;

or
(B)
sign and file with the clerk an order referring this motion to the
regional presiding judge.
(2)

Restrictions on Further Action.

(A)
Motion Filed Before Evidence Offered at Trial. If a motion is filed
before evidence has been offered at trial, the respondent judge must take no
further action in the case until the motion has been decided, except for good cause
stated in writing or on the record.
(B)
Motion Filed After Evidence Offered at Trial. If a motion is filed
after evidence has been offered at trial, the respondent judge may proceed, subject
to stay by the regional presiding judge.
(3)
Failure to Comply. If the respondent judge fails to comply with a
duty imposed by this rule, the movant may notify the regional presiding judge.

Applicant Cook's Motion to Recuse Judge Christi Kennedy - Page 48

Thus, the respondent judge is required to either recuse himself or refer the recusal motion
to the regional presiding judge. No other action is permitted. See In re Stearman, 252 S.W.3d
113 (Tex. App. - Waco 2008) (once a recusal motion is filed, a trial judge has two options,
recuse himself or forward the motion to the presiding judge).
Moreover, once the judge is recused or disqualified, communication between the recused
judge and the new judge is improper. See Mosley v. State, 141 S.W.3d 816 (Tex. App. Texarkana 2004, pet. ref'd) (once a judge is recused or disqualified from a case, the prudent
approach is for the recused judge and the assigned judge to have no further communication with
each other concerning any aspect of the case; any such communication has, at the very least, the
appearance of violating the basic policy reason for the recusal in the first place).

VI.
Duty of Clerk
Tex. R. Civ. P. 18a(e) states:
(e)

Duty of the Clerk.


(1)
Delivery of a Motion or Response. when a motion or response is
filed, the clerk of the court must immediately deliver a copy to the
respondent judge and to the presiding judge of the administrative judicial
region in which the court is located ("the regional presiding judge").
(2)
Delivery of Order of Recusal or Referral. When a respondent
judge signs and files an order of recusal or referral, the clerk of the court
must immediately deliver a copy to the regional presiding judge.

Applicant Cook's Motion to Recuse Judge Christi Kennedy - Page 49

VII.
Conclusion
Mr. Cook urges Judge Kennedy to recuse and disqualify herself from presiding over all
proceedings in connection with the Application for Writ of Habeas Corpus or issuing any rulings
relating to it. Mr. Cook respectfully requests that the Presiding Judge of the First Administrative
Judicial Region appoint a judge from outside Smith County and its surrounding areas to preside
over his Application for Writ of Habeas Corpus and related proceedings.
The outcome of these writ proceedings very well could define Judge Skeen's tenure in
office. If Mr. Cooks most serious allegations are proven, this case could lead to disciplinary
action or even criminal charges against Judge Skeen, as was the case with former Judge
Anderson in the Morton case from Williamson County. The public at large believes that justice
was ultimately served in the Michael Morton case.

No less is required here. It is well settled

that [t]he judiciary must strive not only to give all parties a fair trial, but also to maintain a high
level of public trust and confidence, which requires that no doubts or suspicions exist as to the
fairness or integrity of the court. Sun Exploration & Prod. Co. v. Jackson, 783 S.W.2d 202,
206 (Tex. 1989). In order for the public to have the necessary confidence that justice is served in
Mr. Cooks case regardless of its outcome neither Judge Kennedy nor any other Judge from
Smith County should preside over these writ proceedings.

Applicant Cook's Motion to Recuse Judge Christi Kennedy - Page 50

Respectfully submitted,

____________________________________
GARY A. UDASHEN
Texas Bar No. 20369590
BRUCE ANTON
Texas Bar No. 01274700
SORRELS, UDASHEN & ANTON
2311 Cedar Springs Road
Suite 250
Dallas, Texas 75201
214-468-8100
214-468-8104 fax
www.sualaw.com
(Appearing on behalf of the
Innocence Project of Texas)
- and NINA MORRISON
BARRY SCHECK
(Appearing pro hac vice)
INNOCENCE PROJECT, INC.
40 Worth Street, Suite 701
New York, New York 10013
214-364-5340
214-364-5341 (Fax)
Co-Counsel for Kerry Max Cook

Applicant Cook's Motion to Recuse Judge Christi Kennedy - Page 51

STATE OF TEXAS
COUNTY OF DALLAS

AFFIDAVIT

BEFORE ME, the undersigned authority, on this day personally appeared KERRY
MAX COOK, who, after by me being duly sworn, upon oath said:
My name is Kerry Max Cook. I am the Movant in this Motion to Recuse Judge
Christi Kennedy. I know the contents of this Motion and hereby state and affirm that the
facts stated in the Motion are true and correct.

Kerry Max Cook


BEFORE ME, the undersigned authority, on this day personally appeared Kerry
Max Cook, known to me to be the person whose name is subscribed to the foregoing
instrument, and after being duly sworn by me did state upon oath that the facts contained
in said instrument are true and correct.
SUBSCRIBED AND SWORN TO before me this

day of September, 2015

Notary Public in and for


The State of Texas

Applicant Cook's Motion to Recuse Judge Christi Kennedy - Page 52

CERTIFICATE OF SERVICE
The undersigned hereby certifies that a true and correct copy of the foregoing Applicant's
Applicant Kerry Max Cook's Motion to Recuse Judge Christi Kennedy was mailed to Michael
West, Assistant District Attorney, 100 N. Broadway, Tyler, Texas 75702, on this the ___ day of
__________________, 2015, with a courtesy copy also sent by electronic mail.

____________________________________
GARY A. UDASHEN

Applicant Cook's Motion to Recuse Judge Christi Kennedy - Page 53

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