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Texas Posthumously Exonerates Man Who Died in Prison

by Matt Clarke

On February 6, 2009, Travis County District Judge Charlie Baird did what no other Texas judge had done before – he exonerated a dead man. Timothy Brian Cole, who died of asthma due to medical neglect while incarcerated in 1999, was declared innocent of the rape charges that sent him to prison.

On March 24, 1985, Michele Mallin, a Texas Tech University student, was raped by a chain-smoking black man when she was walking to her car at night. A series of similar rapes had occurred, and there was great pressure on the police to solve the case. Cole worked several blocks from the crime scene and looked similar to a composite sketch of the suspect; he was arrested and Mallin identified him as her rapist.

Cole, who had only a misdemeanor arrest record and was not identified as the perpetrator by any of the other rape victims, steadfastly proclaimed his innocence and wept over his misfortune while sitting in jail.

Listening to Cole’s suffering was another prisoner, Jerry Wayne Johnson, a chain-smoking black man who had been arrested for, and was later convicted of, two other sex crimes. He also had a history of similar offenses.

Cole was convicted in September 1986 and sentenced to 25 years. He had declined a plea bargain that would have resulted in probation, maintaining that he was not guilty. Cole’s years in prison were not easy. Accused of rape and sent to the Coffield Unit, one of the worst facilities in the Texas Dept. of Criminal Justice, Cole suffered the scorn and abuse of other prisoners. The appeals of his criminal conviction were denied.

Johnson waited until the statute of limitations had expired, then in 1995 wrote to the Lubbock district attorney and judge who had convicted Cole, confessing to the crime. No one was interested. Cole later died in prison on December 2, 1999 due to health problems related to his asthma. He was 39 years old. What ultimately cost Cole his life was systemic medical ne-glect, which is all too common in the Texas prison system. [See: PLN, May 2008, p.34; June 2003, p.18; Dec. 2002, p.1].

Years later Johnson managed to contact Cole’s mother, who got the Innocence Project involved. Subsequent DNA testing proved that Johnson, not Cole, had committed the rape. By then Cole was long dead, but Mallin, contrite over her faulty identification, along with Cole’s family and the Innocence Project, decided to attempt what had never previously been done in Texas – a posthumous exoneration.

Their efforts led to Judge Baird’s declaration that there was “a 100 percent moral, factual and legal certainty” of Cole’s innocence. Members of Cole’s family testified as “to the devastating impact of his wrongful conviction on their lives,” and Mallin described the “emotional impact of discovering that she had identified the wrong man.” See: In the Matter of a Court of Inquiry, 299th District Court for Travis County, Texas, Case No. D1-DC 08-100-051.

Lubbock officials had ignored strong evidence of Cole’s innocence to make the case against him. His family testified that he was at home with them at the time of the rape, but prosecutors insinuated they were lying to get their relative off. Most strikingly was the fact that Cole’s serious asthma would have incapacitated him had he attempted to smoke, and thus he could not have been the chain-smoker described by the victim. None of that mattered to prosecutors, who were anxious to secure a conviction. Other evidence was ignored, including a fingerprint found at one of the rape scenes that didn’t match Cole, and police photo and lineup identification protocols were flawed.

In a formal opinion issued on April 7, 2009, Judge Baird said “It is no secret that our current system for resolving claims of actual innocence by prisoners is bureaucratic and hypertechnical. Such claims are lost, ignored, or denied on procedural grounds that have nothing to do with whether the petitioner is innocent. The death of Tim Cole in prison four years after Johnson tried to clear him is a tragic example of how broken our post-conviction system has become.” Baird declared that Cole’s case was the “most important decision” of his career.

According to the Innocence Project, 35 current or former Texas prisoners have been exonerated by DNA testing since 1994. State Senator Rodney Ellis has introduced a bill to require reforms in police lineup procedures (SB 117). Lineups would have to be video recorded, and the officer conducting the lineup would have to be unfamiliar with the case and not know which participant was the suspect. An improper lineup was blamed, in part, for the false identification in Cole’s case. The legislation did not pass during this session.

Another bill, called the Tim Cole Act (HB 1736), increases the compensation for wrongfully convicted prisoners to a lump sum payment of $80,000 per year they were incarcerated. Payments would be made to surviving family members for prisoners who die prior to being exonerated. The bill also provides monthly annuity payments, health insurance, and as-sistance to obtain a college education for wrongfully convicted prisoners. Exonerees who accept these benefits, however, must agree not to file suit.

The Texas legislature approved the Tim Cole Act on May 11, 2009; it is now awaiting the signature of Governor Rick Perry. “The Tim Cole case should serve as a wake-up call to Texas,” said Senator Ellis. “It is time to get our house in or-der and enact reforms that, wherever possible, can help avert miscarriages of justice before they happen.” Although a worthy goal, 16 state representatives apparently disagreed, as they either voted against the legislation or said they had intended to vote no.

On April 25, 2009, Elliott Blackburn, a reporter for the Lubbock Avalanche-Journal, won an award in the Texas Asso-ciated Press Managing Editors journalism contest for his reporting on Cole’s exoneration. “This is what newspapers are supposed to do ... right the wrongs,” stated Avalanche-Journal Editor Terry Greenberg.

This was somewhat ironic, as Judge Baird noted in his ruling that Cole’s 1986 trial was “sensationalized” by the Ava-lanche-Journal, which “ran articles suggesting that Mr. Cole was guilty of all of the Tech [University] rapes.”

In any event, Mr. Greenberg is incorrect. Righting judicial wrongs are what the courts and the district attorney’s office are supposed to do when presented with evidence of wrongful convictions, as in Cole’s case when they were contacted by Jerry Johnson who confessed to Cole’s crime. Yet it was an independent organization, the Innocence Project, that fought to obtain DNA testing and clear his name. The state only supplied belated official recognition of Cole’s innocence, fully a decade after his death.

Sources: Austin American-Statesman, Radio Station KFFT Local News, Avalanche-Journal, CNN,

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Related legal case

In the Matter of a Court of Inquiry