“It is well known that most of these individuals on whom the criminal law inflicts punishment have been unfortunate before they became guilty.”
—Alexis de Tocqueville
My name is Kerry Max Cook. In 1977, I was wrongly convicted of a murder and rape I didn’t commit. My ordeal was as Machiavellian a legal odyssey as any could be. It spanned three generations of the district attorney’s office, a hung jury, two separate convictions and death sentences, two reversals, ping-pong appeals, an execution date, and nearly four Capital Murder trials. For most of it I was known as simply “Cook, Execution #600.” I have written this article in the hope of educating attorneys on what a client needs and wants from their attorney.
Attorneys are required to attend mandatory Continuing Legal Education seminars. On Texas death row, everyday, all day, for 22 years, class was in session, teaching me the importance of an attorney-client relationship.
A $500 Defense
I was charged with one of the most serious crimes a person can face—a rape and murder, with death as the penalty. My parents were only able to scrape together $500 for my defense. I was doomed from the outset. Sealed away in a dark solitary confinement cell for the next year, and later, over 20 more on death row, it was just me, a toilet, a portable sink, a steel bunk, and three concrete walls that contained my pain, confusion, and fears of a system aligned against me.
Two local attorneys represented my only voice. $500 doesn’t buy you much of a say in the American legal system, a system that mutes defendants and only allows them to be heard if and when our voices can be used as evidence against us to support the prosecution’s narrative. We aren’t allowed to talk in court. We are told to tell our attorney what we want to say, and the attorney will tell the court. When the attorney’s voice to the court does not reflect our own, we are told not to file pro se motions. From the moment of arrest, we are forced to rely on our attorney as our only voice. Unfortunately, many times our voices are not heard. The hardest thing about getting strapped to a gurney in the death house and executed is dying without a fight, a voice, and without an attorney-client relationship.
The first thing a criminal defense attorney should be aware of is that most clients are suffering from extreme loneliness, whether it is in the county jail or, later, when sent to prison. My loneliness was acute.
I remember almost every attorney visit I ever received. However, what stands out most in my mind is my attorney’s departure. When my attorney would stand up to leave, I only heard that familiar sound of the prison guard opening and closing the handcuffs, signally the end of human contact with a member of the outside world. I would lean against the dirty prison glass that assigned us to two different realities and plead, “Please, don’t go yet. . . .”
Prison is a subculture with its own vernacular. It’s a life buried in an underground cellar that doesn’t translate well in a free society. Every day was a search for different survival methods to try and prevent the darkness from swallowing me. What I needed was the grip of a handshake, the melody of a human voice that was not a jailor’s, an inmate’s, or an acolyte of the prosecution’s cadence of dehumanization. I needed a human connection directly to my mouthpiece, my lawyer, my courtroom advocate, and my tether to the rest of my defense team. Prison was a cancer, eating my body and soul. I needed the only human left on Planet Earth allowed to fight for me to hear my voice.
This may sound so simple that it needs no explanation, but I must state it. Clients need their attorneys to recognize them as more than just another case number on the court’s docket. A client needs face-to-face contact, a sense of connection.
I lived in a hyper-vigilant state of panic, fear, depression, and unbearable loneliness in and out of death row, trying to cope with and manage nearly four Capital Murder trials, suffering from the most severe case of Post-Traumatic Stress Syndrome (PTSD) imaginable. Some of your clients enter the legal system already suffering from PTSD because of lifetime experiences prior to incarceration. You have to show you care to gain a client’s trust. This will help a client understand that you aren’t “one of them.” One of them is a lawyer just wanting to go through the motions, giving the client the feeling of being “sold out.”
Without care from members of the whole defense team, but particularly with the lead attorney, real mitigation is impossible.
You have to care. The client has to trust you. The big C&T to your case is CARE & TRUST. Everything else will follow.
The following are things I wished I had from my attorney when I was a client:
A. Visits—case discussions and strategizing so I could see and feel a defense being assimilated to counter the prosecution’s one-sided control of the narrative.
B. Updates—to offset tunnel vision brought on by extreme isolation. I suffered from disconnectedness, helplessness, and hopelessness because I was unable to see or feel anyone fighting other than me.
C. Communication—giving me a role in my own defense instead of treating me like a ghost. Communication would have made me feel like a member of my own defense team.
D. Empathy—someone to just ask how I was doing and show concern for my well-being.
E. Mitigation—an attorney to understand me, prison life, and what it was like for me as a falsely accused murderer and rapist to live inside steel bars. If my attorney had understood this, my prison history of hurting myself, which I did to force prison officials to move me away from danger, would not be used against me. Also, if my attorney had understood why I hurt myself then he could have helped the jury to understand too.
I. Anatomy of the Attorney-Client Relationship
The definition of a client’s “defense team” should not be defined as a group of professionals: attorneys, mitigation specialists and investigators. The client must also be included as an integral member of the team. Below are my suggestions on how to include your client as part of the defense team:
A. Communication before and during trial
From the moment of my arrest until I went on trial a year later, and to the moment I was shackled for the short trip to death row in Huntsville, I felt isolated, alone, and estranged from attorneys representing me.
Consider this: Write your client letters specifically setting out the reasons for your next visits and the amounts of time you have allotted for them. For example, write a letter explaining the motions you intend to file and the need to go over them so they can be signed. Ask your client if there are any other pressing matters they would like to discuss. Tell them that they can articulate these matters by mail or phone calls to your office. Ensure that you give them five working days for their responses via mail. This will set up the parameters and give your client the opportunities to become a visible member of the team. This also assists the attorney by making jail visits a more productive use of your time.
Lawyers should not squander valuable opportunities to meet and understand their clients; lawyers should work with their clients long before the case is set for trial. Sometimes it just requires that you clear your schedule for a couple of hours and go do client maintenance to maintain a working relationship with your client. It will pay off in the long run for both you and your client.
B. Inclusion of the client in preparation of the case
Including your client in case preparation ensures that the right evidence is heard and the best defense is mounted so that any guilty verdict has the best chance of resembling a modicum of “justice.” Making your client an integral part of his/her defense accomplishes several important goals: You give your client a sense of purpose, an assurance they are being recognized and heard, and you convey genuine concern for your client’s well-being. Lastly, and perhaps most importantly, you give every client the confidence that his or her voice is represented in you.
Indigence, a $500 defense, egregious police and prosecutorial misconduct ostracized me from my defense, and made me an invisible client. Compounding this nightmare, the legal system muted me. I had no voice. I was truly alone.
Clients are among the most important resources for information regarding their cases. Keeping your client out of brainstorming and decision processes breeds distrust and insecurity. This in turn fosters post-conviction ineffective-assistance claims.
Consider this: Have team meetings that include your client at the jail; include them in the brainstorming processes. Or, have others take notes and have those prepared for your client to read over so they can feel they were considered and included.
After my release from death row, I worked on a case in which we implemented this concept and it met with great success. Everyone wins. When you don’t initiate meaningful attorney-client relationships with incarcerated clients, clients have no recourse but to seek the advice of other inmates to calm their fears and concern. We all know how much attorneys like the jailhouse lawyer. The jailhouse lawyer is born because the real lawyer is not there. The Tel-Link County Jail phone system can be like calling the prosecutors at home. Additionally, jails and prisons are repositories for desperados and career criminals who are experts in how to work the legal system, predators seeking to curry favoritism with the State to attain leniency in their cases. I lived my 22 years in jail and in prison by this motto: “We live in a cornfield: There are too many ears in here.”
The best way to minimize the risk of a jailhouse informant popping up on prosecution’s witness lists is to initiate and maintain an effective attorney-client relationship.
C. Understanding psychological effects of jail and prison
Sensory deprivation, permanent bright lights, extreme temperatures, forced insomnia, and dehumanization by jailors and inmates are just a few of the noticeable maledictions of life inside America’s prison and county jail systems.
Incarceration affects optimism, interpersonal communication, the ability to trust others, and paranoia. Invariably prisoners are locked down 24-7, with nothing to do and all day to do it. It breeds massive distrust and contempt. Lawyers must remain patient and cognizant of how relations can be strained because of their client’s imprisonment and hunger for a resolution that equals freedom.
Prolonged confinement causes an unrecognized mental illness you won’t find codified in any Diagnostic and Statistical Manual of Mental Disorders. I have named the disorder as ISS, or Isolative Stress Syndrome. The symptoms of ISS can be acute anxiety, tunnel vision, excessive paranoia, anger, frustration, and self-destructive thoughts. The PTSD associated with isolation requires an understanding that begins to take hold when the client is left isolated and has little to no human contact with their attorney.
What happens is the client starts to feel like the attorney is representing their own interest and not the client’s. By the time of the trial and conviction, client has already been subjected to dehumanization, which was the prosecution’s narrative. The client has been stripped of their original identity and placed in exile.
This isolation and courtroom public dehumanization process greatly affected me. For example, take the closing arguments of the district attorney at my first trial. He compared me to a dog. He told my jury, without my lawyer objecting, that they must not think they are executing a human being, but instead putting a sick animal to sleep. The pain I felt when I heard the prosecutor’s arguments will never heal. But the deeper pain was the absolute indifference my own lawyer showed when the prosecutor said these words. It made me believe that he thought of me as a sick animal too.
By the time I crawled my way back to a defense table 15 years later with a new trial, I had been systemically abused. Human Rights Watch, a global watchdog group monitoring human rights atrocities, called me the most brutalized man in an American prison institution. Much of this brutalization could have been lessened if I had an attorney who cared.
I did not have outside family support while I was locked away in prison. My primary source of support was an only brother, Doyle Wayne. He was murdered ten years into my incarceration. Two years later, cancer took my father’s life. My bereaved mother blamed me and my teenaged mistakes as the sole reason police and prosecutors profiled me for an arrest. My mom’s reasoning went like this: If I hadn’t gotten into so much trouble as a juvenile and had a better job than bartendering at a gay bar in Dallas, Smith County wouldn’t have framed me for rape and murder. This was an albatross around my neck that nearly consumed my will to live in prison.
Helplessly trapped inside a legal system that had forgotten me and abandoned by family, I craved to be recognized and understood as a survivor by my attorney. I needed to feel cared about and understood. I needed my attorney not only to listen and care about me but also to work with me. In the end, no one did.
Consider this: Every client brings baggage to your case, sui generis. In the beginning, it can be essential to the relationship with your client that the lawyer try to understand the physical, psychological, and conditioning effects of jail and/or prison.
Excluding your client by omitting them in the strategizing and/or trial preparation of their case makes your client distrustful, angry, withdrawn, and it promotes feelings of being “sold out.” It also deepens a client’s isolation and pariah status. A client will withdraw and become closed off as a method of self-protection. The attorney will have lost an opportunity to reach a client through the mitigation process.
D. Fathoming the consequences of excluding the client
Disconnection from your attorney can create a self-destructive personality disorder. Clinicians have immortalized the high incidence of self-mutilation within America’s prison system, but there remains very little real understanding of this pandemic phenomenon that derives from prolonged incarceration. I can help you understand it because I became what is referred to in prison vernacular as a “cutter.”
I subsisted in a freezing solitary confinement cell at the Williamson County Jail for my first retrial in 1992. I had no blanket, there was a constantly burning light, and it was so quiet that I could hear myself breath.
Somewhere through the network of steel walls and ventilation system, I could hear the muffled screams of the other inmates as they jeered and cheered the Dallas Cowboys playing against the San Francisco 49ers in the NFC Championship game. That was a double-edged sword because I loved the Dallas Cowboys and could never get to see or hear them play.
I was eaten whole by my loneliness, hopelessness, and emptiness brought on by all the years of legal and prison abuses. My legal nightmare left me crippled without a voice. It whittled away at my determination. I resorted to physically hurting myself with a razor blade.
I was an unrecognized veteran of war. I was raped, battered, and badly beaten up by nearly four capital trials. I went against the worst result-oriented prosecutors imaginable. These prosecutors were hell-bent on making sure an aura of guilt never left so I could be executed.
You may be your client’s only connection to the outside world—he may have no family or maybe they abandoned him long ago. You are certainly the client’s only link to their case and, in many instances, the last chance the client has for freedom or redemption. Maintaining contact (phone calls, letters, visits, etc.) with case updates is essential for the mental and physical health of your client. Inmates are starved for the very daily contact most outsiders take for granted. Not to mention that this depth of interaction with a client bolsters your case and gives you the tools necessary to mount a full defense.
II. Importance of Life-Sentence Consultant
Clients typically have unrealistic street-life understandings of our legal system and how it works. The legal-knowledge disparity between clients and attorneys is staggering. Typically, a defendant’s education stopped in high school. A client is educated by the streets of America, jails, or prison.
When lawyers have to go to the jails to see their clients, they often have limited time. They don’t have the time to spend with clients who are held in confinement, locked down 24-7 with nothing to do all day. These clients are just itching for a chance to get a break from their cramped cell to talk to someone about their case.
An effective tool for defense teams to resolve challenging issues—especially with difficult clients—is to bring onboard what I call an Attorney-Client Envoy (ACE), who can serve to both educate juries to reach a life sentence conclusion, as well as educate defense-team members on prison life.
As an ACE, I am an effective plea negotiator and serve as a bridge, helping to create trust between attorneys and their clients, unifying the defense team. I am also a court-recognized Life-Sentence Consultant, as well as a Mitigation Consultant.
When you exclude your clients from their own defense and treat them as apparitions, it breeds paranoia, and distrust. Clients begin to feel that their own attorneys are part of the same legal process dead set to take away their freedoms.
The moral of the attorney-client relationship is if you want your clients to “see” and respect you as their lawyer charged with defending them in a court, it is incumbent that you see and respect them as a client.
I promised myself the day I left death row I would be the change I wanted to see in the American criminal justice system. I would do this by bridging the gap between attorneys and their clients and by helping humanize what prosecutors and media dehumanize so they can call it “justice.” I want to pay it forward.
The prisoners called me a dreamer. The guards called me crazy. The lawyers hardly called me at all. In the end, everyone called me long distance because I got freed from the worst death row in America.