Court of Criminal Appeals
Ex Parte Cook
No. WR-84,565-01 6/19/24
Issue:
Is the defendant entitled to relief based on multiple allegations of State misconduct, perjured testimony, and new scientific evidence?
Holding:
Yes. The Court held that the defendant was not only entitled to a new trial but also was actually innocent. “Between the bookends of deception from the start of the case till the admission of [the alternate suspect’s] repeated perjury in 2016, it is clear that [the defendant] never enjoyed the full panoply of protections guaranteed under the Constitution. … Putting all the evidence together, the State fails to show anything more than Cook just being in the wrong place at the wrong time to his extreme misfortune.” Read opinion.
Concurrence (Keller, J.):
“The habeas court has recommended that Applicant be granted a new trial, and that recommendation is supported by the record. I would follow the habeas court’s recommendation and grant Applicant a new trial. But I disagree with the Court’s conclusion that Applicant has shown himself to be actually innocent under our Elizondo jurisprudence. … First, Reserve Deputy Bob Wickham testified that Applicant admitted to killing Linda Jo. Deputy Wickham said Applicant told him, “I killed her and I don’t give a sh-t what they do to me.” Wickham has never recanted this testimony. Second, Paula Rudolph identified Applicant as the man she saw in the apartment the night Linda Jo was killed, and she has never recanted her identification. Third, Applicant’s fingerprints were found on the sliding glass door to Linda’s apartment, and they were left in such a way as to indicate that Appellant had been closing the door from inside the apartment. Although other aspects of the fingerprint evidence have been challenged, there is no dispute about the fact that the prints are Applicant’s and they indicate that he was inside the apartment. Fourth, Applicant told various people that he did not know the victim. If these denials were true, they conflicted with any exculpatory explanation for being inside the apartment, and if they were false they suggested Appellant’s own consciousness of guilt. I think all of this evidence together is at least minimally sufficient for a reasonable juror to find Applicant guilty.” Read concurrence.
Dissent (Yeary, J.):
“The Court is convinced that, not only was materially false evidence used against Applicant to induce his plea in this case, but also that he has shown himself now to be actually innocent of the unimaginable crime for which he was convicted by a jury twice and upon his own plea once. Wow! I hope they are right since their judgment wins the day in this Court. I agree with both Applicant and the Court that there is now new evidence showing that some of the evidence relied upon by the State to induce Applicant’s latest plea of nolo contendere has turned out to be false. I simply cannot conclude however, like the Court does, that the false evidence was material. In all humility, I may be wrong about my assessment of the evidence in this case, but I remain convinced today that, even being put on notice of the false evidence pointed to by Applicant, on balance, a rational jury would still have found Applicant guilty.” Read dissent.
Commentary:
Texas prosecutors are aware of cases involving Michael Morton, Anthony Graves, and Richard Ray Miles (or they should be aware). These are defendants who were undeniably handled poorly and convicted of crimes that we now believe they did not commit. Now add Kerry Max Cook, a defendant who has spent the past several decades on direct appeal and post-conviction writ of habeas corpus, claiming his innocence. Presiding Judge Keller’s concurring opinion makes a compelling case for the assertion that, while he definitely should receive habeas corpus relief (a new trial), Kerry Max Cook is not actually innocent. Regardless of how prosecutors might come down on the actual-innocence question, they should read this decision, as well as Ex parte Miles, and see how horribly wrong a case can go before justice is served. Read Judge Richardson’s 106-page majority opinion in this case, and one easily comes to the conclusion that Cook should not have been convicted in the manner in which he was. The damage that the facts of this case do to the reputations of prosecutors and law enforcement will likely be long-lasting. It will make you sick to your stomach (or it should).
McCumber v. State
No. PD-0467-23 6/19/24
Issue:
Did the trial court violate the Confrontation Clause by allowing a witness to testify via Zoom over the defendant’s objection?
Holding:
No. “Physical, face-to-face confrontation may be denied when (a) necessary to further an important public interest, and (b) the reliability of the testimony is otherwise assured. The trial court must make a single finding before allowing remote testimony: that the accommodation is necessary to further an important public-policy interest.” Here, the trial court’s necessity finding was sufficient and was justified by the witness’s fear of retaliation. Read opinion.
Dissent (Walker, J.):
“The law requires that the trial court make individualized findings that dispensing with face-to-face confrontation was necessary to further an important public policy, and the trial court did not do that. Even if those were findings were made [sic], the trial court still would have abused its discretion as [the witness’s] cited reasons for her absence were insufficient to outweigh [the defendant’s] right to confrontation.” Read dissent.
Commentary:
The first thing that you need to know about Judge Keel’s opinion for the court is that it is only a plurality opinion, which means that it has no value as precedent. Nevertheless, prosecutors should read this decision if they have a Confrontation-Clause issue involving a witness who will testify remotely. The analysis that Judge Keel undertakes follows all of the relevant authority. Therefore, even though the opinion is not binding authority, it still can be quite useful. Prosecutors who wish for a witness to testify remotely should also urge the trial judge to make very specific findings supporting the witness’s need and ability to testify away from the defendant.