Hearing sought in Lubbock for posthumous exoneration based on DNA

The wave of DNA exonerations continues around the state at an impressive clip, but the latest instance comes too late to bring justice for the wrongly convicted man. A Lubbock man convicted of rape in 1986 died in prison while serving the sentence for an apparent wrongful conviction. He's now been excluded as a suspect by DNA posthumously for the crime for which he was convicted. Reports AP:

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.

The Lubbock Avalanche Journal just began a three part series on Cole's case (see part one here), detailing how flawed evidence was allowed to be submitted at trial, only to be declared harmless error later on by Texas appeals courts. Reported the Avalanche Journal:

The victim who accused Timothy Brian Cole never saw Johnson's photo or looked at him in a lineup. Tim's defense attorney, Mike Brown, could not push during Tim's trial his theory that Johnson had committed the March 1985 rape.

Brown carried the theory through the appeals process. He argued the jury should have been allowed to hear the striking similarities between the March rape and another attack in the same parking lot in February.

The woman was taken by an attacker fitting the same description and following the same methods.

The victim never identified Tim, and fingerprints recovered from the earlier victim's car didn't match. The circumstances should have raised doubt Tim was involved in almost the same crime more than a month later, Brown argued.

He complained he could not cross-examine the forensic work in the case, either, since the chemist who performed the test sent a subordinate working off of notes to the trial.

Tim lost his immediate appeal in Amarillo. But a higher court chose to take up the issue in 1990, and agreed years later with Brown's argument on the forensic evidence. The case shook up trial law across the state but the victory proved bittersweet.

Tim's fight for innocence stopped.

Yes, the trial court had erred in admitting the evidence, the appeals court ruled, remanding the case to a lower court. But the error in forensics testimony was not significant enough to warrant a new trial, the appeals court found. The court also found the fingerprint evidence collected too weak to matter to a jury.

They had won the battle and lost the war.

Now DNA evidence and confessions by the man whose DNA ultimately matched have forced authorities to take another look, though it's too late to help Tim Cole. Because he is dead, the usual appeals processes are closed to Cole's family who're still seeking to clear his name. The Innocence Project of Texas (IPOT) on Friday requested a posthumous "court of inquiry" into the wrongful conviction. (Conflict alert: I'm a paid policy consultant for IPOT, though I have nothing to do with their legal cases.) IPOT argued in their petition that:

This is an extraordinary case that demands an extraordinary remedy. Because Mr. Cole is dead, he cannot assert his innocence through the normal procedures allowed by law. Despite that, his family- who are as much victims of the original crime as anyone in this matter, just as he was- has a right to have his name formally cleared in a court of law.

The court of inquiry idea seems like a useful approach to posthumous exonerations. There needs to be some way to manage the issue of posthumous exonerations, most obviously for death penalty cases but also in many other instances like the Timothy Cole case. Dying in prison over a crime you didn't commit: What a tragedy