Released From Prison, but Never Exonerated, a Man Fights for True Freedom

march, 31, 2012  source :

A couple of Fridays ago, Kerry Max Cook, who was released from Texas’ death row in 1997 after two decades, went to pick up his 11-year-old son, Kerry Justice, from his North Dallas school. Class was just letting out. As Mr. Cook approached a group of children and their parents, a little girl squirmed out of her mother’s arms and ran toward him. “Mr. Kerry!” she called. He laughed as she jumped into his arms. “Haleigh!” he shouted, and began tickling her. “She adores Mr. Kerry,” her mother said.

The same jolly scene followed Mr. Cook as he walked around the small campus — children calling out to him, laughing, jumping into his arms. Vicki Johnston, the school’s director, looked on, smiling. “Kerry’s such a big part of the school,” she said. “He’s like a pied piper to the kids.” Asked about his past, Ms. Johnston simply said: “We know him. We know what kind of man he is.”

Unfortunately for Mr. Cook, 15 years after his release, the State of Texas still does not share Ms. Johnston’s view. Though he is widely recognized as one of the country’s most famous exonerated prisoners, Mr. Cook is not legally exonerated. In fact, in the eyes of the state, he is still a killer — convicted of the 1977 rape and murder of Linda Jo Edwards.

Mr. Cook’s situation is complex. His death sentence was twice overturned by higher courts, and DNA taken from the victim’s underwear did not match his own, and the evidence used to convict him has been shown to be entirely fallacious — but because Mr. Cook pleaded no-contest to the murder on the eve of what would have been his fourth trial, he cannot be declared actually not guilty.

Nevertheless, Mr. Cook has become a high-profile spokesman for the wrongfully imprisoned. He has published a book about his experience and has been one of the subjects of a popular Off Broadway play, “The Exonerated,” which was later made into a film. He has given speeches all over the United States and Europe. His Facebook page contains pictures of Mr. Cook with actors like Robin Williams, Richard Dreyfuss and Ben Stiller, who have been drawn to his story.

Yet Mr. Cook lives in the shadows with his wife and their son, knowing that whenever he applies for a job or gets on an international flight, he will be identified as a convicted murderer. Now he hopes to change that, with two motions filed recently in Smith County, where the case was originally heard, that could finally clear his name.

Mr. Cook has always claimed to be innocent of the murder of Ms. Edwards, a woman who lived in the same Tyler apartment complex. The case against him was largely circumstantial, including the words of a jailhouse informant who said that Mr. Cook had confessed to him and the recollections of a man who said that on the night of the murder, he and Mr. Cook had had sex and watched a movie that involved a cat torture scene.

The prosecution’s theory was that Mr. Cook, aroused by the torture scene in the movie, had left his apartment to rape and kill Ms. Edwards.

In the years after, every piece of evidence used to convict Mr. Cook was revealed to be bogus. The informant admitted he had lied as part of a deal with prosecutors, and the witness who claimed to have had sex with Mr. Cook told a grand jury that there was no sex and that Mr. Cook had not paid any attention to the movie. The prosecution had also suppressed evidence showing that Mr. Cook and Ms. Edwards had known each other casually, which explained a fingerprint found at the scene.

Mr. Cook’s verdict was overturned on a technicality in 1988. When District Attorney Jack Skeen of Smith County tried him again in 1992, the case ended in a mistrial. Another trial in 1994 resulted in a guilty verdict and a new death sentence, but two years later the Court of Criminal Appeals, the state’s highest criminal court, reversed that conviction, noting that “prosecutorial and police misconduct has tainted this entire matter from the outset.”

Mr. Cook was released on bail in 1997, but the state prepared to try him for a fourth time. He was presented with an option: plead guilty in exchange for 20 years, which he had already served, and the charges would be dropped. He refused. As the trial date approached, in early 1999, Ms. Edwards’s underwear was sent to a lab for modern DNA testing. Mr. Cook, certain he would be exonerated, gave a blood sample.

On the morning of jury selection, the district attorney made another offer: if Mr. Cook pleaded no-contest with no admission of guilt, the case would be dismissed and he could go on with his life. Mr. Cook considered the deal. He had suffered terribly during his 19 years in prison — he had been stabbed, raped repeatedly and had tried to kill himself, once slitting his own throat after severing his penis, which was reattached.

He took the plea deal. Two months later, the DNA results returned. The semen belonged to James Mayfield, a married man with whom Ms. Edwards had been having an affair.

By then Mr. Cook was trying to move on with his life, but it was harder than he had imagined. The physical and emotional abuse he endured in prison causes nightmares and suicidal urges. And the murder conviction made him a second-class citizen.

“I couldn’t get a job, couldn’t sign a lease,” he said. “We’ve had to move five times because people would find out about me. One woman threatened to put up posters in the neighborhood saying ‘Convicted murderer lives here.’ ”

In 2009 Mr. Cook met Marc McPeak, a civil lawyer — with Greenberg Traurig in Dallas — who had read his book. Mr. McPeak’s firm began devising a legal strategy, pro bono, to navigate the difficult road of getting Mr. Cook an official exoneration. The first step was to get DNA testing on other items from the crime scene, including a hair found on Ms. Edwards’s body.

On Feb. 28, Mr. McPeak filed two motions in Smith County, one for the DNA testing and the other to recuse the judge who would decide whether to allow the testing — Mr. Skeen, the former district attorney. “We want it heard outside of Smith County,” Mr. McPeak said. “Not once in 35 years have officials there shown either the desire or the ability to treat Kerry fairly.”

They hope that further DNA evidence excluding Mr. Cook will help them to file a writ of habeas corpus to have him declared actually innocent.

Meanwhile, Mr. Cook waits. He dresses only in black (he swears he will not wear any other color until he is exonerated), and with his dark eyes and white hair, he cuts a striking figure. What he wants more than anything else are life’s simplest things.

“All I want is to be able to put my name on a lease,” he said. “I want to be able to walk my dog and have my neighbors over for cookouts. I want to live a normal life.”

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