Book Reviews

Book Review 1 - April, 2011

The Mercury Endeavor, LLC provides book reviews that defense teams will find applicable, insightful, and reflective for their practices. Book reviews are published to this website on a tri-annual basis. Viewers may quote from this webpage but must properly attribute and cite the work to Dr. Tim Jon Semmerling or Stephen M. O'Connor, The Mercury Endeavor, LLC, and the collateral sources cited herein:

Tim Jon Semmerling, PhD, JD

BOOK REVIEW: Cook, Kerry Max. Chasing Justice. New York: Harper, 2008. 344 pages. ISBN: 9780060574659.

Chasing Justice, Kerry Max Cook's autobiography of his survival on Texas's death row and his victimization from one of the worst cases of police and prosecutorial misconduct recorded in American history, is essential reading for defense-team newcomers and seasoned veterans. Kerry's story is an unfathomable perversion of justice. As novelist John Grisham describes the book, "If it were fiction, no one would believe it."

Kerry was convicted and sent to death row in 1978 for the rape and murder of Linda Jo Edwards. His first appeal, argued in 1980, became the longest wait for an appellate decision in American history – eight excruciating years. In 1988, he received his death warrant, but the Texas Criminal Court of Appeals reversed the conviction. His retrial in 1992 ended in a hung jury, which relieved him of death row but still kept him incarcerated for another retrial. In 1994, his third trial ended in conviction and sent him back to death row for a second time. But a new trial in 1999 ended in a no-contest agreement that preserved his innocence, his freedom, and his life. In the end, Kerry spent twenty-two years in the worst of Texas's prison conditions and proved that his convictions were based on false testimony, junk science, irresponsible forensic investigation, prosecutorial spite, and failures to mitigate.

Indeed, Kerry's story raises the passion of his readers' ire as repeated injustices from the legal and correctional systems chip away at his youth, his family's strength, his masculinity and self, and his heroic resolve to struggle – it's enough to make any reader push the book away in exasperation and disgust time and again, but the hope for Kerry's triumph compels the reader to regain composure and continue forward.

Kerry's main thrust in his book is to show how he fought to prove his innocence and to obtain his freedom. Indeed, he announces these two elements in the book's subtitle: "My Story of Freeing Myself After Two Decades on Death Row for a Crime I Didn't Commit." I argue that the client's voice is a critical element to Kerry's story and reigns equally important. Voice is his loss, his quest, and his ultimate triumph over the twenty-two years of his nightmarish odyssey. If Kerry had the opportunities to speak out and be heard, the truth would have emerged sooner rather than later. This story sensitizes and re-sensitizes defense teams to the imperative of hearing and listening to their clients' voices during their daily struggles to save their clients' lives. Loss of voice is replete with examples in the narrative and is at issue from the very start of Kerry's life and book.

Take for example a juxtaposition of two scenes from the book. At eight years old, Kerry was lost in the darkening forest outside Mainz, Germany, which scared him into imagining that wicked trees, goblins, and gremlins were reaching out for him. Like most children, he panicked. His loud cries for his older brother, "Doyle Wayne!" pricked up Doyle Wayne's ears and sent him to young Kerry's rescue and relief. Contrast this effective use of voice to the loss of voice when Kerry was a 20-year-old bartender who was making small talk with his customers on Chasing Justice's first page. An employee called Kerry into the back for a moment to speak to the manager, Cy Kubler. Kerry walked back to a pitch-black kitchen, which was usually bright with fluorescent lighting. Fumbling to find the light switch, Kerry used his voice to make sense of the strange situation. "Cy?" he called out. Out of the dark a more powerful voice overtook his own: "The second the lights came on a pair of silver handcuffs were slapped on my wrists…'Kerry Max Cook, you're under arrest for the rape and murder of Linda Jo Edwards.'" Cy did not appear to rescue Kerry, but the bar owner emerged and told the arresting detectives, "If you need anything else, you know where to find me."

From that point forward, and deeper into the legal abyss, Kerry's voice is restrained and overpowered just as much as his body and movement. During the arrest, the detectives tell him that anything he says can and will be used against him in a court of law. While his apartment is searched, they instruct him not to speak unless they speak to him. When the detectives accuse him of the rape and murder, his limited voice asks for a lawyer, although Kerry admits to the readers that what he really wanted to ask for was his mama, daddy, and Doyle Wayne.

The legal process muted him, too. While he was the reason that all in the courtroom had converged, no one seemed to notice his presence. He could not understand or speak the language of the courtroom, "It was like a foreign language to me, and the court system did not provide any translators." Kerry also found himself in the common dilemma of defense strategy: whether to take the witness stand and speak up or to protect his right not to testify and keep the burden of proof on the prosecutor's shoulders.

Meanwhile, the prosecutors used the media to wage a public campaign against him, to which he could not rebut - the jail had a rule against inmates speaking to the media, and it would only taint the jury pool against him. When prosecutors invited him to speak, their intent was to use his words against him. Kerry understood that his only hope was his attorneys who represented him. Once with his attorneys in court, they demanded that he not speak even though witnesses made mistakes or false claims in identification, timing, and events and even as prosecutors and his attorneys discussed potential deals in his presence. Kerry pulled at his attorneys' sleeves to get their attention, but they rebuffed him by saying: "No matter what is said, you don't open your mouth"; "Shush "; "I told you not to talk to me in court. It's too distracting!"; and "Wait until court is over before you talk to me. This is the last time I'm going to tell you." Kerry had to sit still and quietly endure reviews of grotesque photographs and film, heinous accusations, and assaults on his mental health, sexuality, and humanity. His attorneys insisted that he "try to be expressionless" throughout. When he could no longer tolerate the fabrications of unreliable and self-interested witnesses, he screamed out "Liar!" and received the court's threat of a physical gag and restraints if he tried to speak again. His attorneys kept telling him to hold on, sit tight, and not to worry. The judges hobbled Kerry's voice further still, and subsequently hid the truth, when they upheld the prosecutors' demands to suppress knowledge and facts, restrict testimony, and disqualify defense experts. The judges allowed the prosecutors to run over their judicial rulings but kept close reins on the defense attorneys who represented Kerry's voice.

Kerry's family, too, although without full fault of their own, took away his voice. Their means could only afford him a mere $500 budget to hire experts who had the knowledge to refute the lies of the prosecutors' experts. His father trusted Kerry's attorneys and, concerned for Kerry's protection, told him to follow their orders and not to talk with anyone. Sadly, too, his father, scared for Kerry's life, convinced Kerry to keep quiet about making-out with the victim in her apartment days before the murder. "If you tell anyone else about being in that apartment or knowing this girl that was killed, you might as well have committed the murder, because they are going to pin it on you. You talk too much, son – Keep your mouth shut." And yet, that fact was crucial exculpatory evidence that could have explained why his fingerprint, the prosecution's only physical evidence linking Kerry to the crime, showed up at the crime scene. When a man murdered Doyle Wayne, Kerry's hero, idol, and rock on Earth, Kerry's mother, who was so ashamed of Kerry's fate, kept his name out of Doyle Wayne's obituary announcement.

Some of the most disturbing and repulsive examples of voicelessness come from Kerry's experiences on death row. Without a voice, he had to endure cruel chiding and despicable violence and assault from inmate trustees, all the while keeping check on too much protestation in order to survive. His only outlet of expression was to slice and cut away at himself in desperation with glass shards. While Kerry's father was on his deathbed holding on to life just to talk to his son, Kerry showed correctional officers his special-permission slip from the warden to call home; some ignored him while others admonished him for speaking out, and his father passed away during the night. Not being able to speak to his father meant he would never know what his father wished to tell him. "But for just an ounce of compassion," Kerry writes, "I could have known." As he watched others be led off to execution before him, Kerry tried to console them, providing words of encouragement that they would be back, but his words were always wrong. Instead he had to listen to the voice on the radio announce the executions of his death-row friends and acquaintances.

But Kerry vowed to prove his innocence and tell his story even if it took 10 or 20 years. Deciding that he had to regain his voice, he purchased a typewriter, nursed the drying ribbon back to health, and typed out letters to the Dallas Morning News, which, in turn, championed the fight for truth in his case. He wrote a 61-page application to the Centurion Ministries, a non-profit investigative organization helping prisoners with substantive innocence claims, and acquired a new defense team to carry him forward. He spent his days reading and writing. Getting a word processor from the commissary in 1994 was one of the happiest days on his death-row stay. Kerry's voice had finally reemerged from the deep. In the book's end, he found the voice to make his decision for an unprecedented no-contest deal with the prosecutors and to regain his innocence. His voice grew stronger as he discovered his life-mate, named his newborn son, gave speeches about his case around the world and in its great institutions, retold his story in the play The Exonerated, worked with celebrities, and spoke with powerful politicians. And, of course, the narrative of Chasing Justice may be one of his most commanding decibels of voice yet.

Nevertheless, Kerry Cook's life story is far from finished as his resilience resounds beyond the book. He has begun to lend his voice to defense teams as an Attorney-Client Envoy (ACE) and life-sentence consultant. When defense teams want to find ways to establish relationships with clients and assist in communication, Kerry's experiences, legitimate authority, and communicative skills are great assets. When needing an expert to assure clients and jurors about the preference of life-sentence over death (an important part of mitigation evidence according to the Supplementary Guidelines for the Mitigation Function of Defense Teams in Death Penalty Cases) his empirical expertise is captivatingly persuasive. After all, he's been on death row twice for a total of 22 years, had a ringside seat to 141 executions, and lost some of the most precious possessions in human life: youth, love, protection, dignity, family, freedom, and voice.

As criminal defense team members, we likely all came into the profession with the common idea of championing the rights of those without voices in the legal system and helping them to find the light of justice. As we fight in the trenches of the legal battlefields and become injured, shell-shocked, and inured from the daily barrages of the opposing side, it is not unusual to be so consumed with our own objectives and goals that we desensitize, tune out, or fail to consider one of the most important voices on the team – the client's. Indeed, clients are not always right, rational, or justified - they are only human - and limiting their voices can be protective measures for them (for example, Miranda warnings) and for ourselves (avoiding ineffective-assistance claims). However, dismissal and avoidance can come too easily, and so can the trite, but well-intentioned, advice of "Hang in there" and "Be patient." Chasing Justice reminds its readers how too much limitation of voice can be damaging and even deadly for some. Reading this book is a helpful self-disciplinary tool for defense-team members. Kerry Cook's exemplary case, nay notorious nightmare, guides newcomers and re-sensitizes seasoned veterans to prick up their ears when fighting for their clients.



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