Saturday, February 07, 2009

Tim Cole declared innocent, exonerees press for reforms at Lege

Wow ... Just, wow! Blogging has been light for a couple of days during which time I've been privileged to participate in some truly extraordinary events.

On Thursday, a dozen Texas DNA exonerees (who collectively had spent more than 200 years in prison on false charges) along with Innocence Project of Texas students, boardmembers and volunteers, came to Austin for an advocacy day to promote a range of innocence reforms. On Friday, following a press conference at the capitol and a well-attended legislative briefing on eyewitness identification procedures, I was able to attend the denouement of the court of inquiry exonerating Timothy Cole for a 1985 rape he did not commit, where the victim in the case, who had mistakenly identified Cole in a photo lineup, finally faced the man who'd really assaulted her nearly 25 years ago.

It was an exhausting couple of days, but incredibly rewarding. I'm grateful to the exonerees who came down to the capitol to tell their stories (for some, it's still difficult to go over the details), and to Tim Cole's family for allowing me to play a small role (as part of my duties with the Innocence Project of Texas) in this remarkable week for their family.

Having the Cole hearing going on during the advocacy day drove home a point made repeatedly by my boss, Jeff Blackburn of the Innocence Project of Texas, that the police practices which caused Cole's false conviction are still common as dirt and can only be fixed through legislative action.

We had volunteers go around with each of the DNA exonerees to make capitol visits, and from all the reports I've gotten back, everyone was incredibly well received. (See the list of reforms they were promoting.)

I went around for office visits with James Woodard, who was first incarcerated toward the end of the Carter Administration and only freed last April after DNA finally proved his innocence. It was an honor to watch James get to tell his story personally to folks who could possibly do something about it. What's more, I was proud that so many exonerees, who've all been seriously damaged by the system, found enough faith in the process to come try to fix the laws and help others in the same situation.

All of this was an extraordinary setup for Friday afternoon, when I was able to attend the last few hours of the court of inquiry in Timothy Cole's case. It's difficult to adequately describe the emotion in that room by the end of the day - it was intense, joyful and cathartic, but there was also a layer of melancholy and anger as everyone absorbed what a profound tragedy had occurred and how late and inadequately the justice system came to address it. Folks in the audience were literally passing around boxes of Kleenex, as nearly the entire room teared up when we heard Judge Charlie Baird's pronouncement that Tim Cole was innocent "to a 100 percent moral, factual and legal certainty."

Based on the reception given to the exonerees and the seriousness of the problems, I'll be surprised if the Legislature doesn't follow up and pass significant innocence legislation this session, starting with eyewitness ID reform. At this point, none of them can say they didn't understand there's a problem.

BLOGVERSATION: See more commentary on the Cole exoneration from Dan Solove at Concurring Opinions, Scott Greenfield at Simple Justice, Kathy Gill at, and Mark Evanier at News From Me.

MORE: Blaming the victim.


Anonymous said...


This story is an American tragedy and it weaves in and out of issues you cover on Grits.

For example, Cole maintained his innocence; even refused to admit hs guilt in order to secure parole. So how does that square with people who falsely confess. Seems to me Cole could have easily said he did it especially when they dangled a carrot like probation and parole vs jail.

Secondly, science exonerated this man and it was the lack of it that wrongly sent him to jail.

So how does this case square with what you believe about science and false confessions.

In my mind, this case emodies a fear of major proportions because DNA isn't a lynchpin in other cases where the same legal process has sent someone to jail; and there's no DNA to test that can later on undo a bad lineup; false confession; police and prosecutor misconduct; or lying witnesses.

This leaves me with a very bad feeling.

Gritsforbreakfast said...

I agree with you, 9:09. The pressure put on Tim Cole with the plea offer embodies EXACTLY why a rational person might give a false confession. And the actual science that exonerated him stands in sharp contrast to a lot of the folklore and pseudoscience that too often passes for forensic expertise.

DNA exists in less than 10% of violent crimes and virtually none in other types of prosecutions, plus, in most jurisdictions, old biological evidence wasn't preserved after the conviction, so even if someone's innocent it can't be proven. There's no doubt in my mind that DNA is only uncovering the tip of the innocence iceberg.

Anonymous said...

The police are not blameless, but this still was the result of a wrongful identification by a WITNESS. The WITNESS needs to pay damages to the person she repeatedly swore false testimony about. If she wasn't sure, she should've said so. All the improved lineup procedures in the world won't stop lying WITNESSES.

Gritsforbreakfast said...

The witness didn't "lie." This was a traumatized rape victim who made a mistake based on a suggestive photo lineup - a type of mistake that we now know is quite common (the source of 80% of false convictions among Texas DNA exonerees).

Not her fault at all - an investigation aimed at finding the truth instead of just pinning the blame on Cole would have excluded him as a suspect.

Anonymous said...

12:21 I find your characterization of the witness as lying extremely offensive. She was the one that was raped. I think she might have some motivation to see that the guilty person be brought to justice for it. She is a victim in this too. You ignorance on so many levels is astounding.

Anonymous said...

"This was a traumatized rape victim who made a mistake based on a suggestive photo lineup"

Use all the facts. She picked him out again in a live line up and then again in the court room so that's three times she selected the wrong man. Little more than just a suggestive line up.

I don't think she lied either but can you imagine what the jury thought when she pointed at him in the court room. Been there and it's a very powerful, and convincing piece of identification.

As for the traumatized piece, are you saying that traumatized people can be unreliable?

My take on this is based on experience. Tim Cole may have looked like the suspect but w/o looking at a picture of Johnson; I can't be sure.

From that point; good or bad identification follows other corroborative elements of the story like chain smoking; other area victims; or profiling other known similar acts.

There were signs all around what the police thought was a good identification that it wasn't so where was the prosecutor; the guy who reviews this stuff.

An innocent man died in confined for something he didn't do. Foolish people only think it can't happen to them.

Anonymous said...

Charles Kiker here:

to anonymous 3:40 "so where was the prosecutor?" The prosecutor like the police wanted a closed case. He wanted a conviction. More and more evidence that eyewitness testimony is not necessarily reliable. Back to the wisdom of Deuteronomy 19:15--"A single witness shall not suffice to convict a person of any crime." We fought this battle over and over in the Texas legislature.

Gritsforbreakfast said...

I'm using all the facts, 3:40. What you fail to grok is that once a witness picks someone in a lineup, the likelihood that they'll ID the same person in court is nearly 100%.

Johnson may or may not have looked like Cole when they were younger, but it doesn't matter, or shouldn't have. Lubbock police a) used biased lineup procedures and b) did a shoddy investigation otherwise, ignoring evidence Johnson was the rapist (which defense counsel claimed at trial).

Anonymous said...

"Johnson may or may not have looked like Cole when they were younger, but it doesn't matter, or shouldn't have"

If Cole looked like Johnson, the victim picked him out because he looked like him. The 4 black and white photos with one color photo of Cole had nothing to do with it.

It then follows that she picked him out two more times and she should; if he looked like the person who attacked her.

What the police did after that bothers me but it's not unusual. On the one hand, I believe that sloppy police procedures; sloppy handling of evidence and lying only happen during prosecutions but probably not during the process of exonerations.

I think I grok it.

Gritsforbreakfast said...

If, if, if, if ...

They ignored evidence (e.g., the disonnect between the smoking perp and the nonsmoking, asthmatic suspect), they lost fingerprints taken from a lighter at the crime scene, they discounted a valid alibi, and pretended the crime was a different perp than the other rapes where victims didn't identify him.

You can make excuses all day, but the cops and prosecutors screwed this up and it's reprehensible to blame the crime victim.

Kathy E. Gill said...

Thanks for the link, Grits. And I'm grateful to see that Cole's family achieved some small measure of justice.

The Lubbock police LOST the fingerprints? I find that incredibly hard to believe.

What I did not see in any of the reports this week was a timeline of those rapes. When was Johnson arrested and when did he stand trial?

I understand the prosecution's desire to find a "bad guy" in these rapes -- I don't see why Johnson wasn't the logical bad guy if he was tried and convicted of two of them. Especially since none of the other rape victims IDed Cole.

Gritsforbreakfast said...

Thanks for stopping by, Kathy. The closest I've seen to such a timeline is the Hope Deferred series from the Lubbock Avalanche Journal.

Here's a link to a story that mentions the tidbit about the fingerprint evidence that was lost/inadvertently destroyed.

Anonymous said...

Congrats Grits on your demonstrated patience with shallow reasoning. Many prosecutors, like many detectives, have a perverse sense of justice in which right and wrong comes down to what you can get away with. They couple that perverse thinking with the notion that "justice" is an aggregate concept in which individual failures become expected,insignificant,and even evidence of the "system working". It's sick, but they can use the "system" as a cover for their own laziness, incompetence, or other personal pathologies. We see this often in wrongful convictions when a prosecutor explains it away, or refuses to even accept that corrective action is mandated.