| Book Reviews |

| Book Reviews | Chasing Justice: My Story of Free- heartbreak after heartbreak as appel- What sustained Cook during all ing Myself After Two Decades on late courts rejected his claims. Howev- those years was the knowledge that Death Row For a Crime I Didn’t er, thanks to the zeal of the Centurion he was innocent as well as his belief Commit Ministries and its team of lawyers, he in God. But make no mistake: Cook’s was freed and could begin a new life. knowledge and his faith did not pro- By Kerry Max Cook When John Grisham’s The Innocent vide him with confidence. Too many William Morrow, New York, NY, 2007. Man was published last year, readers, people had deserted him and too many 342 pages, $25.95. especially those who are not lawyers, doors had slammed in his face. He found its true account of the wrongful could have little belief in a system that convictions and eventual exonerations had wrongly convicted him and contin- REVIEWED BY ELIZABETH KELLEY of two men to be compelling. I recom- ued to fail him. While reading Chasing mended Chasing Justice to a friend of Justice, one wonders how much more The Innocence Project, which is mine, an English professor, who had Cook can endure. Then, a new set- based at Benjamin Cardozo School of just finished reading The Innocent Man back, a new indignity, is visited upon Law, reports that there have been 200 and was overwhelmed, but she said him, and alas, he continues to endure. post-conviction exonerations based on that she couldn’t bear to read another His emotional and physical strings are new DNA testing in U.S. history—and book on the same topic that was also very, very taut, and just when we think the majority of these cases involved so heartbreaking! Yet Cook’s Chasing they will break, he miraculously holds African-Americans. The Death Penalty Justice can be distinguished from Gr- himself together. Information Center reports that, since isham’s book by the sheer power and Kerry Max Cook is angry and bit- 1973, 124 people on death row have authenticity that emanates from a first- ter, but he has every right to be, and it been released and later have been ac- person narrative. Cook does not merely would seem unreal if he were not. Yet quitted, received pardons, or had all enable you to visualize his torment; he Cook’s anger and bitterness do not just charges dropped (DNA was a substan- forces you to share his prison cell with hang in midair; rather, Chasing Justice tial factor in only 15 of those cases). him. We are outraged as a prosecutor exposes all those factors that led to Although the United States has the best distorts and withholds evidence. We the wrongful conviction of Cook and legal system in history, these exonera- are shocked and disillusioned as a trial many others: prosecutorial miscon- tions show that the system is far from judge denies Cook the opportunity to duct, mistaken eyewitness testimony, perfect. Indeed, for all that is good present evidence that has a real pos- junk science, and jailhouse snitches. about our criminal justice system, we sibility of leading to his acquittal. We How many wrongfully convicted men are still haunted and ashamed by sto- mourn the death of his beloved father and women suffer in our prisons to- ries like Kerry Max Cook’s. One reason and brother, who die while he is in- day? Chasing Justice reminds us that is that Blackstone’s words—“Better that carcerated. And we puzzle over Cook’s work remains to be done. We must ten guilty persons escape than that one inability to reintegrate into the world correct the system to prevent wrongful innocent suffer”—have been burned after his freedom has been so painfully convictions in the future. TFL into our national psyche. won. Chasing Justice is a powerful and re- Cook endures not only the agony of Elizabeth Kelley is a criminal defense vealing book that must be read by any- a death sentence hanging over his head attorney in Ohio and has a special one who wants to ensure that wrong- for 22 years but also sadistic treatment commitment to representing individu- ful convictions do not happen in the by guards and fellow inmates. Those als suffering from mental illness and future. Today the author of the book, who might ordinarily dismiss reports mental retardation. She frequently pro- Kerry Max Cook, is a husband and fa- of horrible prison conditions by saying vides legal commentary for Court TV, ther living in upstate New York. Some that the inmate should have thought of MSNBC, and CNN. She can be contact- of you may have seen him on Broad- that before committing the crime ob- ed at [email protected]. way or on television; his story was told viously cannot say that here. Granted, in the play “The Exonerated,” and he prisons are meant to punish, but the provided post-performance commen- conditions and scenes Cook describes tary during the show’s Broadway run. offend any standard of decency. Between 1978 and 1999, however, Some might cite Cook’s 22 years on Cook resided on death row in the state death row to argue that we should accel- of Texas. He was convicted of the bru- erate the appellate process, but it took tal rape and murder of a young woman that long to prove Cook’s innocence, and sentenced to death, even though, and speeding up state-sponsored kill- unlike many others who have been ing will not make us any safer. Texas, The Failure of Corporate Law: wrongfully convicted, he had hard- Cook’s state, is the nation’s leader in Fundamental Flaws & Progres- working trial counsel. Cook endured executions—and also in homicides per sive Possibilities not only the brutality of death row but capita. By Kent Greenfield 40 | The Federal Lawyer | July 2007 University of Chicago Press, Chicago, IL, 2006. commonly understood as they should discuss the topic, he comes up with 288 pages, $45.00. be. For example, the fact that the eq- the following statement: “Framed in uity holders are in last place when a contractual terms, one can imagine a corporation is in its death throes sug- corporate contract that does not link REVIEWED BY CH R ISTOPHE R C. FAILLE gests that, when a corporation is not the residual claim on financial assets bankrupt, the equity holders, sitting on to be distributed in case of liquidation Who gets what as a result of a cor- the ground keeping everybody else in with a sole claim on the attentions of porate bankruptcy? There is an order the air, hold a certain pride of place. the directors.” This is, in part, a simple of precedence, well established in law, We might change the analogy and expression of incredulity that the direc- that is applicable in principle (though think of an airplane in flight. This par- tors’ obligations in normal times, when with differences in practice) whether ticular airplane is subject to only one bankruptcy is not a looming threat, the bankruptcy is a liquidation or a manner of crash—cockpit first. Each of could have much to do with the pos- reorganization. The creditors of the the passengers has a better chance of sibility of insolvency. But incredulity is company have claims against its assets survival than the cockpit-inhabiting pi- not an argument. that are prior to the claims of the own- lot—the equity holders—which makes Yes, we could, as Greenfield sug- ers of equity. In addition, the creditors’ a certain intuitive sense on both sides. gests, “imagine” breaking that link, as claims differ among one another in pri- Anyone in possession of any corporate one can imagine just about anything ority according to the terms of the con- security or instrument has, in principle, else one likes. The point remains, how- tracts by which the corporation’s debts bought into a specific position in the ever, that in the real world, as opposed to them were incurred. passenger-to-pilot continuum—a spe- to the realm of imagination, the his- Imagine a newly bankrupt corpora- cific trade-off of control, return, and torical development of such a link was tion as a seesaw with a much heavier risk. Both in the event of a crash and nonetheless a perfectly rational devel- weight at one end than at the other. The in the more usual event of a flight that opment, and one that we shouldn’t lighter end, accordingly, is up in the air does not crash, each is entitled to the hasten to weaken. and the heavy end is on the ground. In benefit of his or her bargain, and no On another point, Greenfield com- terms of the right to receive a payoff, one is entitled to more than that. plains that existing precedents give a the most senior or best secured debt Of course, in a corporation that has corporation no obligation to obey the instruments have first dibs, and, after a lot of outstanding shares of equity, law. According to Greenfield, courts they are paid, other payments follow the equity holders can’t literally exer- do sometimes “talk about” such a duty, in legally defined sequence, with the cise their piloting prerogative. They but they don’t really mean it. “Indeed, owners of equity sitting on the ground. must do so through surrogates known there is not a single, modern case that At some point, moving down the see- as directors.

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