Exonerations educate courts, Lege on innocence

Lots going on in Austin and at the Lege on the innocence front this week: More than a dozen Texas DNA exonerees and the family of the late Timothy Cole, a Texas Tech student falsely convicted of rape who died of asthma in prison, will all be in Austin to help clear Tim Cole's name and promote solutions at the Legislature to prevent false convictions.

For Tim Cole's family, this week represents the denouement of years hoping and praying the name could be cleared. AP reports on the court of inquiry that will be held Thursday and Friday in Travis County's 299th District Court aimed at finally, formally exonerating him. AP reports ("Hearing in Austin could lead to DNA exoneration," Feb. 1):

Cole and his relatives for years claimed he was innocent in the rape of a Texas Tech student in 1985. But until DNA from the crime scene was tested last year, no one else believed them.

That test showed another man, already imprisoned for rape, committed the crime for which Cole was sentenced to 25 years.

His family will ask an Austin judge on Thursday to overturn the conviction, but Cole won’t be with them. He died in prison in 1999 at age 38.

Cory Session, Cole’s brother, said the DNA test served its purpose.

“That’s vindication,” Session said. “We need exoneration. We are extremely hopeful that this process will actually get him cleared.”

It would be the first posthumous DNA exoneration in Texas, according to attorney Jeff Blackburn of the Innocence Project of Texas, paving the way for a pardon by the governor and, eventually, expunging Cole’s record.

“For us it’s got to be one step at a time,” Blackburn said.

Blackburn has enlisted the help of Barry Scheck, who helped found Innocence Project, a national organization that assists prisoners who could be cleared by DNA testing.

Tim Cole's case came to light thanks to a astonishing convergence of unlikely allies, with the rape victim in the case and the actual rapist both assisting the family to posthumously exonerate him:

The case against Cole relied primarily on identification by Michele Mallin, his alleged victim. The Associated Press does not typically identify rape victims but Mallin has come forth publicly to help clear Cole’s name.

Blackburn and others working on Cole’s behalf allege the photo lineup used in 1985 was flawed. Mallin picked Cole out of a photo array that included at least six other pictures. All were standard jail mug shots except for Cole’s photo, which was a Polaroid.

Mallin, who Blackburn said would be at the hearing, later identified Cole in a live lineup and again at trial.

Also instrumental in the efforts to prove Cole innocent was Jerry Wayne Johnson, shown by DNA tests last spring to be Mallin’s actual attacker.

Johnson, now serving time in a Snyder prison for two other rapes during the 1980s, has been trying for more than a decade to convince authorities that he raped Mallin.

He got no response.

Then on May 11, 2007, Johnson sent Cole a letter addressed to his mother’s Fort Worth home. Not knowing Cole had died in prison years earlier after an asthma-induced heart attack, Johnson admitted raping Mallin and offered to help prove him innocent.

“If this letter reaches you, please contact me by writing so that we can arrange to take the steps to get the process started,” wrote Johnson. “Whatever it takes, I will do it.”

The letter reached Cole’s family, who contacted a reporter and the Innocence Project.

I couldn't have more admiration or respect for Michelle Mallin for stepping forward to help clear the name of a man who she helped convict. As the number of Texas DNA exonerations has piled up, I've often thought what an emotional nightmare it must be for rape victims who accidentally identified the wrong person and years later found out they didn't do it.

More than 3/4 of Texas DNA exonerations have come because of erroneous accusations by eyewitnesses, but it's pretty extraordinary for the victim in such a case to help actively pursue correcting their mistake. Can you imagine the emotional roller coaster this must be for her, not to mention Tim Cole's family?

At the same time, more than a dozen living DNA exonerees will be in town to make visits at the Legislature on Thursday to promote a variety of innocence-related reforms. (Conflict alert: I work part-time for the Innocence Project of Texas and am helping coordinate their efforts.)

Most of these fellows were convicted based on faulty eyewitness evidence, so they'll be especially promoting reforms to eyewitness ID procedures to reduce errors like the one made by Mallin so many years ago. They'll also be asking the Lege to require police to record custodial interrogations, and expand post-conviction access to the courts in cases involving debunked forensic science.

Then, on Friday, the Innocence Project of Texas will hold a legislative staff briefing (in the Legislative Conference Center at the capitol) featuring a panel of folks involved in the Cole case and a presentation by Gary Wells, the nation's leading expert on eyewitness misidentification.

That's a lot of action on the innocence front, and I'm hopeful this week's events will go a long way toward educating the Lege and the media on these critical topics and setting a tone for their discussion this session.

MORE: Check out this excellent Austin Statesman story on the Cole case, including these thoughts from Michele Mallin and Ruby Session, Tim Cole's mother:

Mallin recalled that she had assumed detectives had evidence against Cole other than her identification. Her assailant had left a cigarette in her car and had touched her steering wheel and cigarette lighter, she remembers. Testimony during the trial said that forensic tests were inconclusive, news reports said.

Mallin said she regrets that Cole spent so much time in prison but blames a bad investigation and prosecution, not herself. "I have felt very guilty, but I knew in my heart of hearts it was not me but the way the investigation was handled," she said. "I feel like they could have done things a lot more properly."

Cole refused a plea bargain on the eve of trial that would have given him a sentence of probation, Blackburn said. When he came up for parole, he again refused to admit to the crime, even though it could have meant freedom.

"I am just proud of him for that," said Cole's mother, Ruby Session of Fort Worth. "It was his greatest desire to be exonerated and totally vindicated."