By Vanessa E. Curry
Kerry Max Cook’s attempt to hold the City of Tyler and Smith County accountable for his wrongful conviction may have hit a legal road block in federal court that defense attorneys argue should not be lifted.
Cook filed a civil rights violation suit with the U.S. District Court Eastern District of Texas in Tyler on Nov. 14 — an amended version of a lawsuit dismissed in 2019 because Cook had yet to be exonerated.
At issue now —nearly seven months after the Texas Court of Criminal Appeals declared Cook actually innocent — is whether the federal court will accept another amended lawsuit.
Defense attorneys oppose resurrecting the civil complaint, arguing the proper legal venue for Cook is in state court. Under state law, Cook is eligible for an estimated $3.2 million in compensation.
District Judge Jeremy D. Kernodle granted defendants a summary judgment of Cook’s original complaint in 2019 but did so “with prejudice until the Heck conditions are met.” In 1994, the U.S. Supreme Court ruled in Heck v Humphrey that a person convicted of a crime cannot sue for damages unless their conviction has been overturned.
The term “with prejudice” usually means a plaintiff cannot refile the same claim again in the same court.
Attorneys with the Chicago law firm of Loevy & Loevy, filed the amended lawsuit on Cook’s behalf in November but Kernodle struck the suit nearly two weeks later because the plaintiff failed to seek consent from opposing parties or obtain a leave of the court according to the legal rules.
Last month, the attorneys filed the motion for leave to amend the complaint and provided the court with documents proving Cook has been exonerated of the 1977 murder of Linda Jo Edwards, and that the state has officially dismissed an indictment against him.
Cook spent nearly 13 years on death row before his conviction was overturned in 1991. He then experienced two more trials, another conviction which was overturned, a plea agreement, and his conviction being set aside before he was finally exonerated.
The state’s highest criminal court concluded Cook’s case is riddled with allegations of prosecutorial misconduct claims. “And when it comes to solid support for actual innocence, this case contains it all—uncontroverted Brady violations, proof of false testimony, admissions of perjury, and new scientific evidence,” according to the ruling.
Attorneys representing the City of Tyler and Smith County oppose allowing Cook to refile an amended complaint largely because Cook has not established the federal court has proper jurisdiction.
They note that Texas provides compensation for those wrongfully convicted via the Timothy Cole Act. Texas law allows $80,000 per year of incarceration to those who qualify for compensation.
Cook has up to three years to file with the state for that compensation. State law does not allow exonorees to receive compensation from the state and from a federal civil suit for the same case.
If Kernodle allows Cook to continue pursuing his federal complaint, defense attorneys ask that Cook certify that he is waving any right to compensation under the Timothy Cole Act, according to court records.
The City of Tyler is being represented by John D. Husted of Dallas. Smith County is being represented by Chad Rook of Flowers Davis P.L.L.C. in Tyler.