Tim Cole achieved widespread recognition when he was exonerated 24 years after his arrest for the rape of a university student in Amarillo, Texas. Another man confessed to the crime and DNA tests proved that Cole was innocent. Unfortunately that didn’t help him, as he had died while incarcerated on December 2, 1999.
Michele Mallin was the student who had been brutally raped; she had tentatively identified Cole as her assailant after the Amarillo police used a suggestive photo lineup and other questionable identification techniques.
Devastated by her unintentional role in sending an innocent man to prison, Mallin joined with Cole’s family to obtain a posthumous exoneration. A Texas court did just that in a ruling issued on April 7, 2009, almost ten years after Cole’s death, finding that he had been wrongly convicted. [See: PLN, July 2009, p.12].
Mallin has also lobbied the Texas Legislature to enact laws to increase the amount of compensation paid to exonerated prisoners (HB 1736, which passed), and to standardize witness identification procedures so witnesses cannot be manipulated by the police as she was. In an August 1, 2009 Houston Chronicle editorial, Mallin urged Congress to create a National Institute to oversee research on the accuracy of forensic sciences and to set and enforce standards for the use and presentation of forensic evidence.
Equally important as regulating the use of forensic science in the courtroom is preventing the use of non-science by police officers. Tim Cole had come to the attention of police after they observed him briefly speak to a young woman on his way to buy a pizza. They sent an undercover policewoman into the pizzeria. Cole talked to her for about five minutes, was polite and gave her his real name. This was the opposite of the behavior exhibited by a serial rapist who had been preying on women in the area, who the police were trying to catch. Further, the rapist’s victims had described him as a heavy smoker; Cole, who had asthma, did not smoke.
Nonetheless, the policewoman “felt” that Cole was the rapist. Police then lied to Cole to obtain his photo. It was a color Polaroid, but was used in a photo lineup shown to Mallin even though it looked very different from the black and white mug shots in the rest of the pictures. When Mallin gave a hesitant identification the police pressed her to make it definite, and wrote “that is him” on Cole’s photo even though Mallin had said “I think that is him.” No one ever told Mallin that her assailant might not be in the lineup at all, and she made the natural assumption that the rapist was in one of the photos.
On September 25, 2009, Cole’s mother, Ruby Sessions, filed a lawsuit seeking answers from the police officers who had investigated the university rapes that resulted in her son’s arrest, conviction and eventual death behind bars. She is not seeking monetary damages in her suit.
“You can’t put someone in prison and let them die and then prove their innocence and say, ‘OK, we’re sorry,’” said Cory Session, Cole’s half-brother. “You have to find out why it happened to make sure it never happens again. And that’s the reason we’re going to proceed with this.”
A bill introduced by state Senator Rodney Ellis would have created an institute at Sam Houston State University in Huntsville, Texas to study the best practices for live and photo police lineups, to reduce the possibility of misidentification. The bill also would have required police agencies to develop written guidelines to implement the institute’s findings.
Since most of the 39 (to date) DNA-based exonerations in Texas have involved faulty eyewitness identification, the Texas District & County Attorneys Association did not oppose the bill – though they had it amended so that the police’s failure to follow the guidelines would not disqualify a witness from testifying. However, the police officers’ union strongly opposed the legislation. As a result, the bill, which had passed the House committee with a favorable recommendation and even made it out of the black hole of the Calendars Committee, died without having been brought to a vote.
One can only wonder why police officials would oppose a bill designed to improve identification procedures and reduce the risk of misidentification, unless they were already satisfied with the quality of their investigative techniques. For example, manipulating a witness’s identification of a suspect who they “felt” was a serial rapist based on a short conversation in a pizza shop, as in Cole’s case.
On October 13, 2009, lawyers, judges and other criminal justice experts attended the first meeting of the Tim Cole Advisory Panel on Wrongful Convictions. The panel was created by the Texas Legislature to provide recommendations for legislation to avert wrongful convictions. The panelists largely agreed on how wrongful convictions could be prevented, which has already been extensively researched – such as videotaped police interviews with suspects, better police line-ups, expanded access to DNA testing, and avoidance of jailhouse snitch testimony.
“We don’t need to study it anymore,” said Barry Macha, who represents the Texas District & County Attorneys Association. “We know what the problems are. We know what the solutions are. We just need to pass it.”
Which puts the wrongful conviction ball back in the Texas Legislature’s court.
Sources: Associated Press, Houston Chronicle
As a digital subscriber to Prison Legal News, you can access full text and downloads for this and other premium content.
Already a subscriber? Login