Innocence Deferred

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After Timothy Cole was wrongfully convicted of raping Texas Tech sophomore Michele Mallin in 1986, he and his mother returned to her hotel room, where Cole fell to the floor in tears. “Momma, why did these people convict me of a crime I did not commit?” he cried. Ruby Sessions crawled on the floor with her son, wrapped him in her arms, and rocked her 26-year-old firstborn like a baby.

That, Travis County 299th District Court Judge Charlie Baird said in court on Feb. 6, was an image he’d take to his grave. Minutes later, Baird ruled, “I find to a one hundred percent moral, factual and legal certainty that Timothy Cole did not sexually assault Michele Murray Mallin.” He exonerated Cole and expunged his record.

But Baird’s ruling came too late. Cole had died in prison in 1999, four years after Jerry Wayne Johnson confessed to Lubbock authorities that he was Mallin’s rapist. The Lubbock authorities ignored Johnson’s claim, then dismissed another confession by Johnson in 2001.

As far back as 1986, during Cole’s trial, defense attorney Mike Brown had pointed to Johnson as the rapist. Lubbock law enforcement rejected that, just as they’d dismissed Mallin when she told investigators that the yellow knit shirt they’d collected at Cole’s house didn’t match the yellow terrycloth shirt her rapist had worn, and that the ring they’d confiscated from Cole’s house wasn’t the ring her rapist had stolen from her.

They focused instead on Mallin’s singling out Cole in a photo lineup, where his picture was the only Polaroid among mug shots, followed by Mallin recognizing Cole during a police lineup. Authorities named Cole, a former Army paramedic and Texas Tech student, as the Tech rapist despite the fact that he hadn’t yet moved to Lubbock when a man who chain-smoked perpetrated the first of what turned out to be five rapes. After it was found that a fingerprint the rapist had left on a cigarette lighter in Mallin’s car didn’t match Cole’s-who was a non-smoker because of asthma, the disease that killed him-the fingerprint mysteriously disappeared.

In 2007, unaware that the wrongly convicted man had died, Johnson mailed two more letters, again confessing to the rape of Mallin. One was sent to Cole and arrived in Ruby Sessions’ mailbox. The other was sent to the Innocence Project of Texas, which sent people to visit Johnson in prison and hear his detailed confession. That motivated them to continue investigating and team with Cole’s family to clear his name.

In 2008, DNA testing ordered by the Lubbock District Attorney’s Office proved that Johnson had been Mallin’s rapist. When Mallin got a phone call from the DA’s office informing her that she’d identified the wrong man and that Cole had died in prison, she was told that she didn’t need to feel badly about that. Cole had allowed himself to be in the lineup, she was assured, and because of his asthma, he was going to die anyway.

Insisting that no law existed to exonerate the deceased, the Lubbock courts refused to move to clear Cole’s name. The Innocence Project, Cole’s family and Mallin turned to Judge Baird for help.

More than once during the February hearing, Baird asked why no one from Lubbock was in his courtroom to correct the wrong done to Cole. No one had an answer-no one but Innocence Project chief counsel Jeff Blackburn. If they were here, Blackburn said, they’d be recognizing that something needed to be done to fix their process.

“I’m so sorry that the powers that be in Lubbock, Texas, do not have one ounce of that integrity,” Baird said, referring to Cole’s integrity in refusing to admit to a crime he didn’t commit, even though a false confession could have gotten him a lesser sentence, as well as parole. “We’re fools if we don’t correct this,” Baird said.

Thirty-five people convicted in Texas have been exonerated by DNA evidence since 1994. But the group behind many of those exonerations, the Innocence Project, might be in jeopardy. “In the wake of the [Bernard] Madoff disaster, money for the nonprofit is especially tight,” Blackburn says. “Our future is too dicey to be spending this kind of money.” He expects that nearly all of the $100,000 annual funding for the Texas Tech law school clinic, which worked with the project to clear Cole’s name, will be used up after the Cole bills are paid.

Indeed, the morning before Baird announced his ruling, Blackburn was grimly predicting that the Innocence Project would be out of business in six months unless additional funding was found. But a few days after Cole’s exoneration-the first in Texas for a deceased inmate-Blackburn was feeling more determined. “We’re gonna keep on going whether we have 10 cents or $100,000,” he vowed.

After all, there was the memory of a mother rocking her 26-year-old son to keep them going-an innocent son, but a convicted son, and now, finally, an exonerated son.

Suzy Spencer covered the Timothy Cole hearing as a freelance producer for ABC News.