Posted on Fri, Feb. 06, 2009
BY MAX B. BAKER
maxbaker@star- telegram. com
AUSTIN — The 72-year-old mother of a Fort Worth man who died in prison for a crime he didn’t commit pleaded with a Travis County judge Thursday to officially clear her son’s name.
In an unusual "court of inquiry" that focused national attention on the Texas criminal justice system, the mother, Ruby Sessions, dabbed her eyes with a white tissue as she told how her eldest son, Timothy Brian Cole, was hunted down, prosecuted and convicted in the rape of a Texas Tech University student in 1985.
Cole maintained his innocence until his death in prison in 1999. He was 39.
Another man confessed to the rape in 1995, and DNA tests conducted last year determined that Cole was not the rapist.
"His greatest desire was to become exonerated and totally vindicated," Cole’s mother cried. "If I can just reclaim his name."
Under state law, although evidence indicates an inmate’s innocence, a court must still void the conviction. Cole’s family first requested a court hearing in Lubbock but was refused. Then, lawyers for the Innocence Project of Texas filed a petition on their behalf in Travis County.
District Court More than a dozen members of Cole’s family sat in state District Judge Charles Baird’s courtroom as lawyers presented evidence.
"It is not just a case for these folks. It is a case for everybody in this state and this country," said Jeff Blackburn, chief counsel for the Innocence Project of Texas. "This case is an opportunity for an example to be set."
The Texas lawyers enlisted the aid of Barry Scheck, the high-profile lawyer who founded the Innocence Project in New York that pioneered the use of DNA testing to clear wrongfully convicted inmates.
Lubbock County District Attorney Michael Powell did not send a representative. Baird noted the absence, saying, "Do you know why the folks in Lubbock County are acting this way?"
Powell, in Austin for an event at the University of Texas Law School, told the Austin American-Statesman that he does not believe that the hearing is the proper setting for the case.
"In my mind, Ive exonerated him," Powell said. "If it was my son, I would do everything in my world to clear his name, but I dont think I have to be there."
The rape case
Cole was convicted in 1986 of aggravated sexual assault in the rape of Tech student Michelle Mallin. He was also a suspect in a number of rapes near the Lubbock campus in 1985. A jury sentenced him to 25 years in prison.
Cole never earned parole in part because he would not confess to the rape as a condition of his release.
On display in the courtroom Thursday was an enlarged photo of a smiling Cole dressed for his 1978 high school prom.
"He was a good big brother and a beautiful son," Sessions said. "One of the things I miss so much is that smile."
Lawyers presented evidence of how Lubbock police and prosecutors developed what they called "tunnel vision" once they decided that Cole was their suspect.
Mallin took the stand and described being attacked near the campus as she parked her car. She identified Cole three times: in two lineups and at the trial. But, Blackburn pointed out, a photo lineup was faulty because Coles picture ” a Polaroid ” was different from the other photos used.
She testified that initially she wasnt positive in selecting Coles picture, but she became more convinced based on comments and actions of police and prosecutors. She now thinks that they misled her.
Now 44, Mallin, who lives in Baytown, has apologized to Coles family and is working to clear his name.
"Im here because what happened to him wasnt right," Mallin said in an interview. "The whole thing was a travesty of justice."
Police questions
Coles brother, Reginald Kennard, testified that he saw detectives "describing Tim to witnesses as they came in" to a live lineup at the police station.
Kennard, 44, was attending Tech with his brother.
Blackburn and Scheck pointed out that Mallin told investigators that a shirt they took from Coles apartment did not match the one worn by her assailant. The ring they showed her was also not the one stolen from her, she said at the time.
Fingerprint evidence from the crime scene was not properly investigated, and one of the latent fingerprints taken was later destroyed, the lawyers said.
Inmate Jerry Wayne Johnson confessed to the rapes in 1995, but authorities ignored his confession until recently.
Powell told the American-Statesman that Johnson, who is serving a life sentence and a 99-year term for two rapes committed in 1985, would not be charged in Mallins rape because the statute of limitations has run out.
Johnson is expected to testify at the hearing today.
MAX B. BAKER, 817-390-7714
http://www.star- telegram. com/news/ story/1188261. html
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February 7, 2009
NATIONAL BRIEFING | SOUTHWEST
Texas: Dead Inmate Is Exonerated
By THE ASSOCIATED PRESS
A judge has ordered the exoneration of a man who died in prison while serving time for rape after DNA tests showed another man committed the crime. The judge, Charles Baird of State District Court, said the man, Timothy Cole, should be exonerated and his record expunged. Mr. Cole was convicted of raping a Texas Tech University student in Lubbock in 1985 and was sentenced to 25 years in prison. He died from asthma complications in 1999 at age 38. DNA tests last year linked the crime to Jerry W. Johnson, who is in prison for separate rapes. Mr. Johnson testified Friday that he was the rapist. The Innocence Project of Texas said Mr. Cole’s case was the first posthumous DNA exoneration in state history.
http://www.nytimes. com/2009/ 02/07/us/ 07brfs-DEADINMAT EIS_BRF.html? partner=rss& emc=rss
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Family of dead inmate seeks to have him cleared | Latest State headlines from AP | Star-Telegram. com www.star-telegram. com Posted on Sat, Jun. 28, 2008
Family of dead inmate seeks to have him cleared
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The Associated Press Attorneys want a court to hold a hearing that could lead to the posthumous exoneration of a man who died in prison while serving a 25-year sentence for rape.
If a court finds Timothy Brian Cole was wrongfully convicted, his would be the first posthumous DNA exoneration in Texas, said Jeff Blackburn, Innocence Project of Texas chief counsel.
Lawyers with the Innocence Project filed a petition Friday asking the 99th District Court in Lubbock for an inquiry into Cole's conviction.
The court filing says evidence in the case had been preserved and was retested. Blackburn said the Lubbock County district attorney confirmed this week to him that DNA testing of a semen sample excluded Cole and matched another man serving time for rape.
The man Innocence Project attorneys believe committed the rape for which Cole was convicted has written letters saying he was the rapist.
Lubbock County District Attorney Matt Powell could not be reached for comment Saturday but he has previously said his office would look into the allegations.
Cole was convicted in 1986 of the rape of a Texas Tech University student a year earlier. He maintained his innocence until he died in prison in 1999 from asthma at age 38, according to court documents.
Cole, who had attended Texas Tech, had a prior record for misdemeanor marijuana possession when he was arrested in the rape, Blackburn said.
Since DNA technology wasn't yet available, testing on evidence was primitive and inconclusive. The case against Cole relied on the victim's identification, but attorneys allege the photo lineup used was flawed, according to court documents.
Now that Cole is dead, he can no longer pursue being cleared of the crime through normal legal channels. But his family seeks to have his name formally cleared in court with a hearing to examine Cole's conviction and the potential guilt of another man.
"Only by examining this case in the open ... will we be able to move forward," the petition reads.
http://www.alternet .org/blogs/ peek/90150/ ?ses=dde84100aac 72852627a1506a3a 2bc17
Posted by The Innocence Project, The Innocence Blog at 5:45 PM on July 1, 2008.
Timothy Cole was serving 25 years for a rape he didn't commit.
New DNA tests prove that Timothy Cole died in a Texas prison while serving time for a rape he didn't commit, according to papers filed Friday by his attorneys at the Innocence Project of Texas. Cole was convicted of raping a Texas Tech student in 1986 and sentenced to 25 years in prison. Nine years later, another inmate, Jerry Johnson, sent a letter to the Lubbock court claiming that he -- and not Cole -- had committed the rape. Johnson's claims, however, fell on deaf ears, and Cole died of asthma in prison at age 38.
But Johnson's family didn't give up. In 2007, the Innocence Project of Texas took on the case and began investigating. Biological evidence from the crime was located in the Lubbock County archives. DNA test results received last months proved that Johnson was indeed the perpetrator of the crime.
And now Jeff Blackburn, the lead counsel at the Innocence Project of Texas, is seeking to have Cole's record cleared.
"If we're going to live in a society where the court system operates in a fair way, then it's got to do it across the board," Blackburn said. "They have a right to have a court of record tell them that their son was innocent."
Read a three-part story and watch a video with Cole's family on the Lubbock Avalanche-Journal:
WATCH VIDEO
Watch Video
Texas has more DNA exonerations than any other state in the U.S., with 32 uncovered so far. Several, like Cole's, are pending final court determination.
Family of Dead Inmate Seeks Exoneration 06/30/08 By Christal Bennett
SNYDER, TEXAS -- Timothy Cole died in prison of an asthma attack, at the age of 38. He proclaimed his innocence until his final days. But he left this world a convicted rapist.
"Timothy Cole is absolutely a victim," says . "And not only is Timothy Cole a victim, but his family's a victim too."
Cole's loved ones never believed he kidnapped a fellow Texas Tech student from a church parking lot and raped her. They began to get confirmation a year ago, when they received a letter from Jerry Johnson, a man serving life in prison for two rape convictions.
Johnson didn't know Cole, but was briefly housed near him in the Lubbock County Jail.
"I just recall him in the cell talking to some other inmates and basically crying about that they had convicted him and he didn't do the crime," says Johnson. "It was hard not to say nothing."
Johnson waited to come forward until 1995, when he knew the statute of limitations had passed and he couldn't be prosecuted for the crime. He says he wouldn't speak up sooner and risk adding time to his already lengthy sentence in TDCJ.
"I'm sorry," says Johnson. "I think they know that. I'm just disturbed because I wish I'd stayed persisten with him."
He says he sent multiple letters to County leaders for years, explaining Cole's wrongful conviction. It wasn't until the letter last spring that the District Attorney's office looked into his claims.
"If a guy was innocent of the crime, even if we didn't have anything to do with it, we needed to find that out," says District Attorney Matt Powell.
"I had a couple of investigators go talk with him. They took a DNA sample from him and tested it with some stuff we had in the property room from some 20-odd years ago."
The results: Johnson, not Cole committed the attack.
Judge Jim Darnell served as Lubbock County District Attorney in the early 1980's.
"When Matt told me, I sore of felt like someone had kicked me in the stomach," says Darnell. He prosecuted this case.
"I deal with a lot of cases, and I've dealt with cases where people have a murdered family member, that's extremely difficult," say Darnell. "I would say this is probably not much different from that."
Judge Darnell remembers few details of Cole's trial 22 years ago. He was convicted primarily based on the victim's identification. Johnson was not in the lineup she viewed.
"She was never given the opportunity to identify the correct perpetrator, " says . "It's important for the citizens of the state of Texas to know exactly what went wrong here."
The Innocence Project of Texas is working for Cole's family to formally clear his name.
"We're stuck in an unusual legal situation because the normal avenues that would've been available to Timothy Cole are no longer available to him because he is not alive," says .
D.A. Powell says this is unprecedented.
"To my knowledge, we've never had a posthumous exoneration before and I've not seen one across the state of Texas, to my knowledge," says Powell. "So we're trying to figure that process out right now."
A filing by the Innocence Project attorneys requests a formal court inquiry to proclaim, on the record, Cole's innocence and Johnson's guilt.
"Through this intense process we can find out what went wrong, we can make sure it doesn't happen again in the future, and at the same time, we can get Timothy Cole's name back," says.
Johnson says "there should be some more questions because others could be following Mr. Cole."
Johnson puts much blame on the Lubbock legal system, even though he could've stopped this in the first place.
If the court inquiry is granted, every step that failed Cole will be analyzed in open court.
D.A. Powell says he never received any of Johnson's earlier letters. It's unclear who received them and what, if any action, was taken.
_http://www.myfoxlub bock.com/ myfox/pages/ News/Detail? contentId= 6883805&version =1&locale=EN- US&layoutCode= TSTY&pageId= 3.1.1_ (http://www.myfoxlub bock.com/ myfox/pages/ News/Detail? contentId= 6883805&version= 1&locale= EN-US&layoutCode =TSTY& pageId=3.1.1)
9/23/08 Updated Information
Truth shakes rape victim's faith in justice
By Elliott Blackburn | Avalanche-Journal Tuesday, September 23, 2008 Story last updated at 9/23/2008 - 1:38 am
Michele Mallin heard the message from a Lubbock County investigator last May and assumed the worst. She feared the county would warn her that the man who raped her more than two decades ago was up for release, she said, dredging up a crime she suffered as a college student and had not thought about or discussed for at least 18 years.
Instead, the Lubbock County District Attorney's office had determined that the wrong man had gone to jail for her attack and died in prison nine years ago, she said. She was shocked, she remembered this week as she struggled with guilt and pledged to help clear the name of the man she accused. "I've just been trying to think of what I could have done differently, " Mallin said. "What I wanted 22 years ago was for the right person to pay." Police included Timothy Brian Cole's photo in a line-up days after a man kidnapped Mallin from a parking lot and raped her outside of town in 1985. The then-20-year- old Texas Tech student cried with gratitude when jurors convicted Cole in September 1986 and sentenced him to 25 years in prison. But another inmate, Jerry Wayne Johnson, began in 1995 attempts to confess to authorities that he had raped Mallin. Cole died in prison in 1999 of a severe asthma attack. DNA testing requested by the district attorney's office earlier this year proved he told the truth.
The news shook her faith in the justice system, she said. Police told her Cole had a record, and she assumed investigators had recovered fingerprints or other evidence in addition to her testimony, she said.
She testified and so was not in the courtroom for much of the trial, she said. No forensic evidence tied Cole directly to the case - the trial relied heavily on her identification. "I never really questioned anything they told me 23 years ago, and I just assumed they were doing the right thing," Mallin said. It was hard to talk to Cole's brothers and his mother when she called in August, she said.
"I was kind of scared at first, but they were very nice people," Mallin said.
"I thought they would just hate me."
Talking to Mallin helped the family continue to come to terms with what happened to their brother and son, said Cory Sessions, Cole's youngest brother.
They did not blame her and never doubted that someone had attacked her, he said.
"I never thought the day would come that she would enter our lives again," Sessions said.
But the family won't have closure until they can clear Cole's name, he said.
Texas has exonerated and released 33 wrongfully convicted men since 1994, according to the Innocence Project, which focuses on wrongful convictions. No legal process exists to exonerate the dead. Project attorney Jeff Blackburn requested a court of inquiry in Lubbock on the case, which was denied in early August. Blackburn can and said he will file the request in a court elsewhere in the state.
He did not return calls for comment but told the Associated Press last week he pursue the case in an Austin court. Blackburn is not related to this reporter. The family needed formal recognition of his brother's innocence, Sessions said. They did not understand why county or state officials - including district attorney Matt Powell, who requested the testing - had not contacted them to acknowledge the mistake.
"It's not his fault - he wasn't even in office," Sessions said of Powell.
"But to at least say Back then, I want to tell you, they made a mistake.' I don't see the harm in that."
Nothing forced the district attorney's office to find and test material from a 1985 crime with no legal chance of formal exoneration. District Attorney Matt Powell said his office still investigated and reported their findings to Mallin and to Blackburn, the attorney, because he did not know the family and had no other relationship with the case.
"The next best thing we can do is tell their lawyer," Powell said. "That's the only reason."
To comment on this story: _elliott.blackburn@ lubbockonline. com_ (mailto:elliott.blackburn@ lubbockonline. com) 766-8722 _http://www.lubbocko nline.com/ stories/092308/ loc_335572963. shtml_ (http://www.lubbocko nline.com/ stories/092308/ loc_335572963. shtml)