Surviving Death Row in Texas

by Diane Fanning

When Kerry Max Cook sat down beside me at the Best Southwest Bookfest south of Dallas last week, I felt a little spooked. I was on the panel because of the role one of my books played in obtaining a new trial for Julie Rea Harper who spent a couple of years in prison after her wrongful conviction in the murder of her son. Now sitting next to me was a man who sat on Death Row in Texas for more than twenty years for a crime he did not commit. How did he survive? How could anyone survive?

At first, it was like sitting next to a figment of my imagination or a ghost from a haunted house. I was afraid to reach out and touch him as if that might make him disappear into thin air. Nonetheless, he seemed so normal. So warm. So human. What core of inner strength did he possess to make that possible?

Kerry credited the power of forgiveness. He said he couldn’t be free until he freed himself from the hatred and bitterness and forgave those who were responsible for his incarceration.

In June of 1977, Linda Jo Edwards was raped, killed, and sexually mutilated. Kerry was in her apartment a couple of days prior to her murder, leaving a fingerprint on the patio door. It was not enough to prove he was there at the time of the crime—not until an expert witness took the stand at the hearing and lied: "I would estimate that those fingerprints were approximately between six and twelve hours old.”

No one can date fingerprints and that was not the only dishonest testimony. The victim’s roommate told police that the man in Linda's room that night had silvery hair that feathered over his ears. At the time Kerry's hair was brown and to his shoulders. On the witness stand, however, she identified Kerry as the man she saw.

"Shyster” Jackson, facing a second-degree murder charge, testified that Kerry confessed the murder to him.

When Jackson recanted in 1979, he admitted the prosecutors showed him the crime-scene photos to help him create the story of the “confession.” His charge was reduced to involuntary manslaughter and time served.

Kerry was found guilty and sentenced to Death. Investigating Kerry’s case, Jim McCloskey of Centurion Ministries and David Hanners, a reporter for the Dallas Morning News uncovered the prosecutorial misconduct that lead to Kerry's conviction.

When Kerry finally got a new trial on these grounds, in 1992, the judge allowed the state to use tainted evidence but forbade the defense from presenting testimony to discredit that evidence. That jury could not reach a decision.

W new trial, in 1994, was even worse. This time, the respected co-founder of the FBI's Behavioral Science Unit, Robert K. Ressler, was not allowed to testify as an expert witness for the defense to counteract unscientific criminal profiling evidence presented by the state’s "expert."

This time, the jury found Kerry guilty and re-sentenced him to death.

In 1996, the Texas Court of Criminal Appeals overturned that verdict stating that: "prosecutorial and police misconduct has tainted this entire matter from the outset." The justices spoke of "fraud" being used to achieve “a conviction at any cost.” They referred to Prosecutor David Dobbs’ "reckless disregard of the law" in withholding exculpatory information and providing misleading information. They called the prosecution of Kerry Max Cook an "abuse of state power."

Even though the appeals court discouraged any further prosecution, the Smith County District Attorney's office moved forward. They sent the victim's panties to the state lab to get an expert opinion on whether they were cut or ripped from the woman's body. The state lab could not answer that question but they did find semen stains and were able to extract DNA evidence. As a further sign of prosecutorial persecution, the state objected to any delay of trial to wait for the results.

The state’s case, however, was falling apart. In an unprecedented move, they allowed Kerry to plead no contest and maintain his innocence. A month later, the results of the DNA tests were released. The semen did not belong to Kerry. It belonged to James Mayfield, Linda Jo Edwards’ lover, who testified that he had not seen her for three weeks prior to her murder—a man whose dubious alibi was accepted without question—a man with motive. Nonetheless, Dobbs dismissed the possibility of Mayfield’s guilt.

In 2005, police and prosecutors in Smith County lashed out once again, providing to Court TV the evidence the appeals court declared fraudulent. On Body of Evidence, host Dayle Hinman presented Kerry Cook as a guilty man with no mention of his exoneration. Repeated requests to alter the show or drop from the rotation have gone unanswered. The inaccurate episode continues to air in 2008.

Kerry Max Cook amazes me. I’ve interviewed serial killer Tommy Lynn Sells on Death Row. I know the darkness of his mind. I know the spiritual and physical bleakness of that environment. Despite the horrors of his life there, Kerry is a kind and gentle man.

To learn more about Kerry’s experience, read his book: Chasing Justice: My Story of Freeing Myself after Two Decades on Death Row for a Crime I Didn’t Commit. It is a powerful story.

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