Post-mortem exoneration: Timothy Cole gets his due

Update (3/2/2010) : Texas Governor Rick Perry finally decided he had the power to issue a postmortem pardon to Timothy Cole.  I know Tim’s family were relieved, possibly even overjoyed, by this good news.  I also suspect they are still asking themselves why the justice system took so long to admit the obvious.  AGB

You know what really galls me about this story?  Court officials knew that the real rapist had admitted to the crime and they did nothing.  They had their conviction.  They had closure.  They had finality.  The system had worked. Only when innocence could be proven beyond a reasonable doubt was Timothy Cole exonerated. 

By that time, the innocent man was long dead.

The article below highlights the inadequacy of the pictorial array shown to the rape victim.  Mr. Cole was represented by a large Polaroid shot markedly different from the other pictures.

That’s a common technique.  It’s the old “one of these things is not like the others” game from Sesame Street.

In effect, investigators were saying, “It was the black guy in the Polaroid shot, wasn’t it?”

The rape victim, unsure of her own judgment, assumed that the cops must have good reason for believing Cole was the guy.

They didn’t.

As District Judge Charles Baird indicated in the course of yesterday’s hearing, Lubbock investigators latched onto a prime suspect then ignored any evidence (including an actual confession) that pointed to a different perpetrator.

This kind of prosecutorial and investigative tunnel vision is driven by a need to clear the case at hand and move on.  More funding for police investigators and prosecutors wouldn’t provide a perfect fix (it’s no cure for racial stereotyping) but it sure wouldn’t hurt.

Are we to believe that this sort of snafu only happens in murder and rape cases involving copious DNA evidence?

Unfortunately, when investigators and prosecutors get lazy in non-DNA cases the prime suspect simply takes the rap.  There is no way of determining how many innocent people are living behind bars.  We don’t want to know and will probably never have to.

At emotional hearing, relatives finally hear man’s name cleared

By AMAN BATHEJA
abatheja@star-telegram.com
AUSTIN – Twenty-two years ago, Ruby Session listened in disbelief as a Lubbock jury convicted her son, Timothy Cole, of rape. She promised herself that one day she would make sure this injustice was corrected.
“I always had faith and I just believed that it would one day happen,” Session said.

That day finally came Tuesday when, after years of efforts by Cole’s family and a relentless group of supporters, state District Judge Charles Baird issued the first posthumous DNA exoneration in Texas history.

“The evidence is crystal clear that Timothy Cole died in prison an innocent man and I find to 100 percent moral, legal and actual certainty that he did not commit the crime that he was convicted of,” Baird said.

Cole was convicted of aggravated sexual assault in 1986, after Michele Mallin identified him as the man who attacked her near Texas Tech University. Cole had always maintained his innocence.

In 1995, Jerry Wayne Johnson, who was serving two consecutive life sentences in prison for sexual assaults in Lubbock, admitted raping Mallin. Authorities ignored his confession until the Innocence Project of Texas took up the case in 2007. DNA tests in 2008 confirmed that Johnson was Mallin’s attacker.

Cole died in prison in 1999 at age 38 from complications of asthma.

“This is probably the most important decision I’m going to have in my entire judicial career, and I’m honored that I’m the one who was able to do this,” Baird said.

Problems with police

Baird laid much of the blame for Cole’s conviction on the Lubbock Police Department for making a “snap judgment” on Cole’s guilt and then refusing to consider other suspects. He described evidence that pointed to anyone but Cole as being “downplayed or deliberately ignored.”

He was especially critical of the photo lineup of suspects that was presented to Mallin. Cole’s picture – a Polaroid – was drastically different than the others, making it stand out.

Baird urged the Legislature to take immediate action to make sure that what happened to Cole isn’t repeated. He stressed the need for statewide fair-practice standards on witness identification procedures and easier court access for convicted Texans who proclaim their innocence.

He also called for increasing compensation the state gives to wrongly convicted people and a method for compensating survivors of those who have been exonerated posthumously. Under current law, Cole’s family cannot receive any compensation from the state, said Jeff Blackburn, the Innocence Project’s chief counsel.

Toward the end of the hearing, Baird made a point of speaking directly to Mallin, assuring her that none of this was her fault. Cole’s family also said they harbor no ill will toward Mallin.

Mallin said she still feels guilty about identifying Cole and said she is in counseling over it.

“Until May of last year, I thought he was the one who did it,” Mallin said. “I had no idea.”

Meeting with Perry

Ruby Session said she is now focused on improving state laws for exonerated people and those who should be. She has met with most of the Dallas men who have recently been cleared of crimes via DNA evidence.

“I feel closeness to them,” Session said. “They call me Mom, so I have 19 more sons.”

Members of Cole’s family have an appointment today for a private meeting with Gov. Rick Perry. Ruby Session said they plan to talk to him about getting Tim Cole officially pardoned and to discuss legislation related to aiding the wrongly convicted.

Cory Session, Tim Cole’s brother, said he also wants the governor to issue an executive order that on Dec. 2, the 10th anniversary of Cole’s death, all flags at state buildings and prisons fly at half-staff “just so they remember that an innocent man did die in prison and that the system is broken and it can never be fixed for Timothy Cole.”

9 thoughts on “Post-mortem exoneration: Timothy Cole gets his due

  1. I AM VERY SORRY FOR THE COLE’S FAMILY.I AM GOING THOUGHT THE SAME THING WITH MY SON HIS LAWYER SOLD HIM OUT AS A BLACK MAN AND A LAWYER HE DIDN’T FIGHT FOR MY SON. MY SON TOLD ME EVERY DAY HIS LAWYER CAME TO THE COURT DRUNK. WHO WILL FIGHT FOR MY SON? WHO WILL HELP ME WITH A LAWYER? KNOW ONE CARE ABOUT THE INNOCENT MEN.

  2. I CAN RELATE TO HOW THE COLE FAMILY FEELS. OUR JUSTICE SYSTEM REALLY STINKS. I AM GOING THROUGH THE SAME THING WITH MY SON. THE ATTORNEY THAT WE HAD BEFRIENDED THE FAMILY OF THE ACCUSER AND HE IN RETURN SOLD OUT MY SON. WE CAN NOT AFFORD AN ATTORNEY AGAIN AND MY SON NEVER HAD A DNA DONE OR EVEN HAD HIS MIRANDA RIGHTS READ OR EVEN KNEW ABOUT WAIVEING HIS RIGHTS TO AN ATTORNEY.

  3. I think it’s disgusting how these rape victimss will acuse a man of such vicious act, when she is unsure. This happens all the time, when these lying white women point the finger at any black man. That to me is serious.

  4. Edelmira, what is hard in these cases, is that everyone’s mom claims that her son is innocent. I’m surprised that you are concerned with his miranda rights not being read…that should not be your argument for his freedom in a rape covicition or rape charge. The only issue you need to raise is whether or not he raped someone., not that he should be released because they forgot to read him his rights. Good luck to you, if he’s innocent.

  5. I just heard this story when a scholarship was announced at my school in Tim’s name and I covered it for my school’s paper. I feel terrible for what happened and my sympathy goes out to Tim’s family. If anyone knows a way to contact Ruby or Cory Session via email, please let me know. kelsey.heckel@ttu.edu

  6. my name is Kevin Kennard ia am Tim Cole’s Brother you can contact me or my MotherRuby Session @ruby.session@sbcglobal.net

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  9. When I first heard the story about Tim Cole, it may me want to write about it. So I contacted the Innocence Project of Texas, Tim Cole’s mother and family, researched the original transcripts and police investigative reports, conducted numerous interviews. Out of this came my forthcoming book titled A PLEA FOR JUSTICE: The Timothy Cole Story, published by Eakin Press, and set for release about May 01, 2010. For more information, go to http://www.timothybriancole.com

    My thanks to this blog for keeping this issue in front of the American public.

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