JANUARY 25, 2003

USA:Kerry Max Cook spent 20 years on death row. His message is clear: 'Being innocent is not enough to save you.'

Kerry Max Cook, who spent 20 years on death row in Texas for a crime he didn't commit, doesn't want bleeding-heart liberals to come see "The Exonerated," a play based in part on his story. No, he really wants those who believe in the death penalty to ''come see another side'' of the issue. Not that he expects them all to change their minds - but it might give them pause.

 "Usually, somebody will come up to me [afterward] and say it made them think differently," he says. "The Exonerated," which opened at the Wilbur Theatre Tuesday night for a 2-week run, uses a stark setting and simple narrative form to tell the stories of 6 former death-row prisoners who were found innocent and released.

 The play, which has also opened in New York and other major cities, has garnered strong reviews for its unadulterated, affecting portrayal of lives nearly lost to the American criminal justice system. It comes at a time when the death penalty is under the microscope: The 5 young men convicted in the Central Park jogger case have been freed after DNA evidence determined their innocence, and Illinois Governor George Ryan basically shut down the state's death row earlier this month, releasing 4 prisoners and commuting the sentences of the remaining 164 to life without parole.

 The night before he announced the decision, Ryan had seen "The Exonerated," which was playing in Chicago. After the performance, he spoke privately with Cook, who was in the audience watching Richard Dreyfuss play his part. "I told him to remember the 6 stories he saw were just part of the real face of the death penalty. I told him there was no way of knowing how many innocent people we've executed in America," says Cook, who was 21 years old when he began serving time for rape and murder, and was 41 when he was released in 1999.

 While he was in, 141 fellow inmates were executed, and Cook came within days of his own demise. While he was in, Cook's beloved only sibling - his older brother, Doyle - was shot dead defending a friend in a bar brawl. While he was in, Cook's father died of cancer.

 Cook lost his mother, too. She still lives in east Texas, but she will not speak to him.

 "She accuses me of killing my brother and father," he says, looking down at his hands. "She knows I didn't rape, mutilate, and kill that girl, but she says that I brought shame on the family by hanging out with the wrong people. She has no love for me at all. She said I was executed and I can't come back."

 But Cook has come back from his near-death experience. When he got out, he went to work as a paralegal in Dallas, where he fell in love and got married. He and his wife, Sandra, have a 2-year-old son, Kerry Justice Cook. "We say that after 23 years, Justice has finally arrived," says Cook, who is 45.

 A simple message

 Now that he's out, his life still revolves around the death penalty and prison. He and his family moved to New York after a "well-known philanthropist" saw the play and offered them a place to live. Cook spends his time traveling and speaking out on human rights violations - mainly the death penalty - and promoting the play. He has appeared with Bianca Jagger, Johnny Cochran, and many other celebrities. He says he was put on the waiting list at Bennington College, where he would like to study writing, and will reapply for the fall.

 Like the play, his message is simple: "We're killing innocent people. The play depicts 6 stories that are the acceptable collateral damage of the death penalty. These are people whose only crime was being poor."

 Cook was perfect fodder for a flawed criminal justice system: a poor kid expelled in the 11th grade after an arrest for "joy riding" - in a deputy sheriff's car - in the small town of Jacksonville, Texas. He turned 17 in the county jail. A year later, he got out and went to Dallas, where he worked as a bartender. At his apartment complex, he met Linda Jo Edwards, who invited him over for drinks.

 5 days later, Edwards was found raped and murdered, and Cook's fingerprint was found on a patio door. His family scraped together $500 for a defense attorney. After a 5-day trial, he was convicted and sent to death row. "I was 18 and poor and couldn't hire a lawyer to adequately defend me," he says. "Being innocent is not enough to save you."

 One man's trials

 Appeals courts granted him three trials because of police and prosecutorial misconduct, including a prison informant who cut a deal with prosecutors and testified that Cook had confessed to Edwards's murder.

 "That guy got out early after testifying against me, ended up killing 2 people, and is now in Missouri doing two life sentences without parole," says Cook.

 Finally, after pleading no contest on the eve of his 4th murder trial in 1999, Cook was released, though he told the trial judge, "I would rather be executed than plead guilty to a crime I didn't commit." His plea, he stresses, is not an admission of guilt. But if he went to trial again, he knew he'd run the risk of being sent back to death row.

 A month later, DNA test results came back, suggesting that Edwards's married boyfriend was the killer.

 Cook said that man, called "Professor Whitfield" in the play, was dean of library sciences at what is now the University of Texas at Tyler, and Edwards was a library clerk working for him. According to court records, they were having an affair, and she attempted suicide after they broke up. He lost his job, and the 2 were seen arguing on the day of her murder, June 9, 1977. The man has never been prosecuted.

 "He works for the Harris County Sheriff's Department," Cook says with a wry smile. He adds: "When all the dust settled, the only real criminals in the courtroom were the prosecutors."

 Has anyone from the Texas criminal justice system ever apologized to him?

 "No, no one ever does," he says. But other district attorneys and judges have come up to him after the play and apologized on behalf of "the system."

 This is what Cook most remembers from his time in a 5-by-9-foot cell: for the 1st 10 years, his only book was the Bible. "I read it cover to cover, then I smoked it," he says. He didn't have rolling papers or money to buy cigarettes, so he made his own, using the Bible pages. He remembers the men who went to the death chamber. "Some put up a fight, but most go quietly," he says.

 And there are indelible reminders - on his skin, and his psyche - of the sexual attacks he suffered behind bars: a crude tattoo of a fairy on one arm, an obscenity carved into his buttocks, both put there by other inmates. He tried to kill himself, more than once.

 Cook still has trouble being alone, and nights are the worst, but it is life-affirming that he endured what he endured and didn't emerge in a psychotic rage. Indeed, Cook insists that he is not bitter or angry, despite the fact that he will not receive a cent in reparations from the state of Texas. ("You can't sue in Texas," he says flatly.)

 "If I was angry, who would listen to me?" he asks. "My story would not reach people. I know it's a miracle just to be here."

 Seeing both sides

 From death row to national spokesman, Cook must feel as if he has gone through the looking glass. He has seen the play dozens of times, watching stars such as Dreyfuss, Peter Gallagher, Aidan Quinn, and Chad Lowe tell his story. He won't say which one is his favorite. "I love them all," he says diplomatically.

 He was in Washington, D.C., for the opening, and was disappointed though not surprised that President Bush didn't attend. "When he was governor of Texas, he pushed legislation to expedite executions," he says. "That's why we lead the nation in executions. It's a `kill 'em all and let God sort 'em out' mentality."

 As a brother of a murder victim, he says, he can relate to both sides of the death penalty argument. For a long time, he hoped his brother's killer would be put to death. "He murdered my brother," he says. "I wanted him to die. But I came to realize that as long as we have the death penalty, there is no protection from errors in a human-operated system. How many innocent people have to die so we can give in to anger?"

 As it turns out, his brother's killer served only 3 years in prison. 

Kerry Max Cook's story and 5 others are featured in the play "The Exonerated" at the Wilbur Theatre

 Editorial

The Failures of the Death Penalty

In 1976, after spirited debate and dissent, the US Supreme Court revisited the issue of capital punishment after a 10-year hiatus from executions by reinstating the use of the death penalty in Gregg v. Georgia.

 One by one, constitutional challenges to the various death statutes enacted were summarily rejected by the courts. The reinstated death penalty became a reality when, on Jan. 17, 1977, the executioner sang his song with the killing of Gary Gilmore by firing squad in Utah.

 Despite its self-proclaimed role as the main guardian of human rights around the world, the United States joined China, Iran, Iraq, and Saudi Arabia, and America's charnel houses became open for business as a violent society declared war on crime.

 In 1993, in the landmark decision, Herrera v. Collins, the US Supreme Court ruled that it did not violate the Constitution for a state to execute an innocent person. 3 years later, President Clinton reacted to the horrible bombing of the Murrah Federal building in Oklahoma City by signing the "Anti-Terrorism Effective Death Penalty Act" into law, which further minimized appellate review for those sentenced to death, including the innocent who were wrongfully convicted at trial. These decisions were followed by a series of Byzantine court decisions that denied legal relief even to those who had not received even a semblance of a fair trial.

 For example, in Burdine v. Texas, the Fifth Circuit Court of Appeals ruled that a defendant could be executed even though his lawyer slept through a significant portion of his client's death penalty trial.

 To date, 824 people have been executed since the death penalty was reinstated and nearly 3,700 condemned await execution on America's death rows. While these people wait, more and more of them are proved innocent and released from death row - 102 confirmed innocent people so far - innocent souls snatched from certain death. But for the intervention of organizations such as Centurion Ministries, the Innocence Project, and law school students, these innocent people would be dead.

 How many innocent people must die in order to satiate society's thirst for retribution and advance a politician's career?

 I am an expert on these issues. I was forced to spend more than 2 decades on death row in Texas for a rape and murder I did not commit. In reversing my wrongful conviction in 1996, the highest appellate court in Texas ruled that "police and prosecutorial misconduct has tainted this entire matter from the outset." My legal odyssey with the state of Texas consisted of nearly 4 trials and spanned 22 years. Before the dust had settled in my ordeal, the only real criminal in the courtroom was the district attorney's office that had prosecuted me.

 America's experiment with the death penalty has failed. After 17 innocent people were freed from death row in Illinois and a 2-year moratorium spent studying the state's death penalty, earlier this month former Governor George Ryan of Illinois commuted the sentences of all 167 Illinois prisoners facing the death penalty to life without the possibility of parole. The failed criminal justice system of Illinois that convicted and sentenced innocent people to death is not unique, it is a microcosm of what is happening throughout the country. The only thing that distinguishes Illinois is that it had a courageous governor who was willing to put politics aside and admit that the criminal justice system makes mistakes.

 Given that human beings are fallible, it should not come as a surprise that the criminal justice system, administered by human beings, is also fallible. As a result, we cannot be certain that the people we are executing are guilty.

 Those who commit violent crimes should be punished. Society does need to be protected from violent criminals. However, we should not be in the business of killing the innocent. There are no posthumous pardons being declared for those executed innocent. I advocate life without parole as the alternative to the death penalty because, as William Shakespeare once wrote, "Time is the justice that examines all offenders." 

Innocence

Kerry Max Cook - Texas

Conviction 1978

Released Nov. 1997

Concluded 1999

 Cook was originally convicted of killing Linda Jo Edwards in 1978. In 1988, he came within 11 days of execution, when the U.S. Supreme Court ordered the Texas Court to review its decision.

 Cook's conviction was overturned in 1991. He was re-tried in 1992, but the trial ended in a hung jury. In 1993, a state district judge ruled that prosecutors had engaged in systematic misconduct, surpressing key evidence. In 1994, Cook was tried again, and this time found guilty and again sentenced to death. 

On Nov. 6, 1996, the Texas Court of Criminal Appeals reversed his conviction, saying that "prosecutorial and police misconduct has tainted this entire matter from the outset." The court ruled that key testimony from the 1994 trial could not be used in any further prosecution.

 Prior to the start of his fourth trial in February, 1999, Cook pleaded no contest to a reduced murder charge and was released. He continued to maintain his complete innocence, but accepted the deal to avoid the possibility of another wrongful conviction.

 Recent DNA tests from the victim matched that of an ex-boyfriend, and not that of Cook. This tended to contradict testimony from the ex-boyfriend.