Attorneys argue before the appellate court in Kerry Max Cook - KLTV.com-Tyler, Longview, Jacksonville, Texas | ETX News

Attorneys argue before the appellate court in Kerry Max Cook's case

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TYLER, TX (KLTV) -

Thursday morning oral arguments in Kerry Max cook's case were heard in the Twelfth Court of Appeals.

Cook and his attorneys filed motions this year requesting more DNA testing on evidence that Cook says will  exonerate him of a 1977 rape and murder.

The Court heard oral arguments on a petition for writ of mandamus and a motion to dismiss as moot.

One attorney for Cook, Marc McPeak, argued that the petition for writ of mandamus should be granted  because an order issued by the court in 2003 was void. According to Cook's attorneys, that order was not proper procedure for appointing a new judge to hear a case where there is a conflict or potential conflict of interest. This is relevant in Cook's case because the Smith County District Attorney who prosecuted Cook in the 90s is now the Smith County 241st District Court Judge, Jack Skeen Jr.

McPeak says Cook requests that The State's motion to dismiss be denied.

Mike West, representing The State, says he's asking the court to declare the 2003 order issued as valid. West says McPeak is causing more delays and "feet-dragging" in sending off evidence for testing.

"It has been our position from the beginning that the 2003 transfer and everything that flowed from it was improper," McPeak says.

West says the Smith County District Attorney's office has conducted their investigation and prepared their chain of custody report regarding the DNA evidence Cook wants tested. West says he asked McPeak for the official order since it was McPeak's motion to get the evidence tested and has run into nothing but delays and difficulties ever since. West says McPeak is causing the delay on his own motion.

"This is a horrible, horrible crime," says West. He tells The Court if there is any evidence to be tested, The State wants it tested. West says, "If I was truly  innocent, the one thing I'd want tested would be the murder weapon, but McPeak's motions are halting that."

McPeak tells The Court it was not his intent to waste anyone's time.  McPeak argues that Cook does not want the  murder weapon and a slide of Cook's hair re-tested for DNA evidence. Cook's attorneys say the chain of custody has been broken on these particular items because they were improperly kept in someone's personal possession instead of properly stored in evidence. They say for that reason, the integrity of this evidence has been compromised and they do not want the items tested.

The Twelfth Court of Appeals accepts the parties arguments. A decision regarding the motions will be made by The Court at a later date.

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