Friday, April 4, 2008

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.


Leah said...

That is horrendous. I hope he sues Dayle Hinnman and whoever is responsible for producing her show. That is just as wrong as the media giving out false information. His ability for forgiveness is amazing.

Diane Fanning said...

I'm not so sure that Kerry really wants to enter a courtroom again but I know he really wants that show pulled from the rotation and it may come to that.

Kathryn Casey said...

Great blog, Diane. What was Kerry's connection to the victim? Why was he in the apartment? That's amazing that they got someone to testify that they could date fingerprints. What a crock!

Is there any reason they haven't gone after the boyfriend for the murder? Is it that the waters are so muddied by now, after the prosecutors repeatedly accused the wrong man, that it would be hard to get a conviction?

What about Linda's family? Have they called for the boyfriend's prosecution? Did they back Kerry? Sorry, but this is fascinating. I'm full of questions!

Diane Fanning said...

Linda (the victim) invited Kerry to her apartment on one occassion. It was the only time they'd ever spoken to one another.
Unfortunately, I think the only reason the boyfriend has not been charged with her death is because the police and prosecutor in Smith County do not want to admit their mistakes.
I do not know about Linda's family's stance on that issue. One of the most horrifying events of Kerry's wrongful incarceration happened the day his father died of cancer. Kerry got word that his dad was on his death bed and asking to speak to his son one last time. Kerry got authorization from the warden but, no matter how much he begged, could not get a guard to take him to a telephone that day. All day long, Kerry's dad refused pain medication so that he could be clear-headed when his son called. Kerry got to a phone the next day but it was too late. His dad died that morning at 7:30.

Anonymous said...

This is horrible. The various innocence advocacy groups have hundreds of gruesome stories like this. Looks like the lynch mob still rules in some of our states. At least they don't discriminate on the basis of race/creed/color/sexual orientation, so we must have made some social progress, huh?

If we could just get clean death penalty convictions, I'd continue to support it. Or maybe if the judges/juries/prosecutors/police responsible for tainted convictions got Darwin awards instead! The herd in Texas needs thinning.

stan schneider said...

The real tragedy of Kerry Max Cook's story is that he is not the only victim of prosecutorial abuse from Smith County, Texas. In 1993, Andrew Lee Mitchell's death penalty conviction was also reversed because of the intentional suppression of exculpatory evidence. He entered a plea in order to be freed from prison and start a new life. The other thing that these men had in common is that they both were represented by dedicated lawyers, Paul Nugent, Houston, Texas, and David Botsford, Austin, Texas, who believed in their innocence and discovered the suppressed evidence,exposed the misconduct and helped free them from death row.

Diane Fanning said...

Although the discrimination is not raced-based, I believe it still exists. There is tremendous discrimination because of poverty. Poor people pay the price for not having money for an elaborate defense.
Thank heavens for attorneys like Nugent and Botsford and so many others who are fighting the good fight for justice.
AND thank heavens for prosecutors like Craig Watkins in Dallas County who do understand their mission and believe that justice and truth is more important than winning a case. Watkins is working with the Innocence Project of Texas to help free wrongfully convicted inmates.

Diane Fanning said...

And thanks to you, too, Stan. Your work is quite impressive.

stan schneider said...

Thank you Diane

Sue R said...

Awful. Diane, has Kerry Max Cook been in touch with Hinman directly, and are we sure she is aware of this? I ask because much happens in the editing room and it's possible that Dayle doesn't have the full story. It's also possible that she doesn't have the power contractually to pull the show. I'm only playing devil's advocate and speculating, of course. It would be good to ask her. Maybe I should send her a link to your blog.
I do think the onus should be on the television network to update their shows periodically, or when news breaks.
It is heartwarming to learn that Cook has such a great attitude. Life after death row can be a killer itself.

Diane Fanning said...

I have no idea if Dayle is personally aware of this or not. I know that the network has been made aware of it. If I were Dayle and would want to know and would want to have an opportunity to speak out.

Laura James said...

Good Job, Diane! What a powerful piece and amazing in its details.

I don't understand why the man doesn't file a civil suit against the network?? Too sick of courthouses? If I practiced law in Texas, I'd take that case in a heartbeat.

Leah said...

We have our own local version of Cops that airs for 30 minutes just about every night of the week and at the end of each program they profile 3 of the city's most wanted. Every now and then they show re-runs and the individuals that were the city's most wanted when the show first aired are no longer the most wanted when the re-runs aired. They couldn't get the pulled either until a bunch of them filed a lawsuit against the city. Good luck to Kerry. I hope he can get that show pulled without going to court.

I wonder if Judges and prosecutors were held accountable for their decisions, if there would be as many of these bogus cases. It isn't fair that people have to suffer at the hands of justice. This isn't justice at all and I hope Kerry got some compensation from the state for all that they put him through.

Diane Fanning said...

You are right, Leah,they do need to be held accountable. Kerry did not get any compensation because to get it, he would have had to had an acknowledgement from the original judge and the prosecutor saying that he was wrongfully convicted. That sure isn't going to happen.

Leah said...

At the very least they should have to carry malpractice insurance like every other attorney does.

Where I live all you need is the legislature to pass a bill to allow a wrongfully convicted individial to to receive compensation. Anybody released from prison that was wrongfully convicted can get it without any admittance of wrongdoing. Usually all they have to do is go to the Senator or Representative in their district and request it. They always get something. Not usually millions, but usually several hundred thousand.

Diane Fanning said...

You're right, Leah. There needs to be a way to make that happen. If judges and prosecutors were accountable, justice would be more readily accessible for all.

Leah said...

I hate to wear this out but it is something that has always made me angry.

About three years ago I was watching the local news and a prosecutor from the northern part of the state was being interviewed about a man that he wrongfully prosecuted for a rape that he didn't commit. DNA set him free after being incarcerated for 12+ years. All that prosecutor had to say for himself was that: He was just doing his job. He wasn't responsible for the mans conviction, 12 jurors were and he didn't feel the least bit bad or responsible for it. People like that prosecutor don't need to weild that much power. If I were him, I would feel absolutely sickened that I cost a man 12 years of his life.

Diane Fanning said...

I'd have a lot of trouble sleeping at night, too, Leah. To me, a prosecutor has NOT done his job when someone is wrongfully convicted because it IS his job to find truth and apply justice to that truth.
A defense attorney, on the other hand, owes his allegiance to his client--not to the people. And, thus, is held to a different standard. But I could not sleep at night if I managed to get an acquittal for someone whom I felt was a danger to those around him.

Anonymous said...

Could this prosecutor have been misled by bad cops?

Bill Peterson, the Ada prosecutor, has his own website. Some of his claims seem phony. He claims that Ward and Fontenot are absolutely guilty. He claims that the massive documentation of the various cases disputed in The Dreams of Ada aren't fairly summarized by the author.

He also complains that John Grisham, in The Innocent Man, holds Peterson responsible for facts which never came to light until years after the convictions.

Peterson also claims that a police supervisor of the investigating detective changed or suppressed information in a crucial report, which affected Peterson's handling of the case.

This might have a connection to later proof of corruption in the Ada PD, with one detective fired and convicted of meth dealing. No telling who else was involved.

Could it be that Peterson was betrayed, and the Smith County DA's office had similar problems?

Diane Fanning said...

I understand the picture you are painting and accept that in some cases that is true. But this is a prosecutor who put an "expert" on the witness stand who testified on the dating of fingerprints. A prosecutor should know better.
I will agree, however, that this prosecutor may not have known that the witness was given crime scene photographs to use in creating a story of Kerry's confession. That part could have been totally on the cops.
However, the judge did say the evidence was fradulent and questioned the ethics of the prosecutor.

Anonymous said...

Thanks, Dianne for clarifying that.

Law enforcement has major problems. With our high crime rates, if 90+ percent of guilty verdicts are correct, that leaves hundreds of innocents wrongly convicted each year.

So what can we do? We need a death penalty. We need to prosecute criminals, and make sure the right ones get caught and get just sentences. And we need to stop the conviction of the innocent.

Diane Fanning said...

In every profession there are people who are there for the wrong reasons and who are not committed to the mission. In prosecutors and police officers, these bad players can easily destroy the lives of many people.
Screening these people out of those positions is never easy.

Leah said...

That is another good point Dianne, about being a defense attorney.

You are right because they are two VERY different jobs. A DA doesn't have to bring charges if they don't want to or even if they want to but don't because they know they can't prove it.

But a Defense Attorney has to represent his client. He is bound by oath and obligation to do so. While some attorneys hire themselves out as a defense attorney some [MOST] are appointed and they have no choice.

Hari Seldon said...

The entire justice system is corrupt at every level and in every cubby-hole of it, because the people we are getting into it, to run it and work in it, are corrupt - power and money is all that motivates them.
From the judges to who want to wrap things up so they can go to their cottages down to the clerks who give confidential information to jailed criminals who phone them, to the ineffective prison programs that enrich a select group of activists, the justice system is rotten completely.
Many more innocent people than we are led to believe, are tortured by our "justice" system, because we are allowing the wrong kind of people to run it self-supervised.