The Cole Truth

In October, I stood with more than a hundred people at St. John’s United Methodist Church in Lubbock, feet away from the parking lot where the “Tech rapist” abducted one of his victims in 1985. We were there to support the Tim Cole Campaign for Truth and Justice, a movement to force the city of Lubbock to answer for one of the saddest miscarriages of justice in recent times. In a botched investigation and prosecution, Texas Tech student Tim Cole was convicted of rape and sent to prison, where he died of an asthma attack in 1999. He was 39. In 2008, DNA evidence proved Cole was innocent, and the governor posthumously pardoned him in 2010. The victim, Michele Murray Mallin, is among those calling for the city to do the right thing.

I worked as a criminal investigator at the Louisiana Department of Justice in Baton Rouge for several years, and after retiring, I moved back to North Texas. I wondered how the police could have made such a tragic error. I would spend a year and a half investigating the case and writing a book about it, A Plea For Justice: The Timothy Cole Story.

The first thing that troubled me was the appearance that the arrest had been made by a few officers acting on a hunch. In my experience, affidavits for arrest warrants had to be presented to a review board. There were strict requirements: corroborating evidence and more than one strong eyewitness statement. So how did the Lubbock Police Department get itself into this predicament?

After reviewing police reports and court transcripts, I found numerous police errors. For example, a veteran identification technician with more than 19 years on the job destroyed fingerprints taken from the cigarette lighter of Mallin’s automobile. Lubbock police missed many opportunities to catch the real culprit. In an earlier rape investigation conducted by the Texas Tech Police Department, Detective Supervisor Jay Parchman suspected correctly that a career criminal named Jerry Wayne Johnson was the real “Tech rapist,” but Parchman couldn’t convince his counterparts at the Lubbock Police Department to follow up.

One of the most egregious irregularities was with the eyewitness identification and how two Lubbock detectives went about getting it. Jose Nevarez wrote in his official report:

On 04-09-85, I called the victim at the dorm and she stated to me that she would wait for us in the lobby. Upon going there and talking to her, she viewed a folder containing six colored pictures of black males. She looked them over and then she pointed to the person in number (5) five [Tim Cole] and she stated, ‘THAT HIM’, pointing to his picture. ‘I THINK THAT’S HIM.’ I then asked her if she was positive and she stated, ‘YES, I AM POSITIVE IT’S HIM.’

 

Mallin now says police manipulated her. As anyone can see by Nevarez’s statement, the young, naïve, traumatized 20-year-old victim was confused. She felt pressured to identify the person whom she thought best fit her recollection. Mallin says the police led her to believe there was other evidence implicating Cole. In fact, there was no physical evidence whatsoever to tie him to the crime. This single eyewitness’s testimony became the lynchpin of District Attorney Jim Bob Darnell’s case.

My research led me to conclude that Detective Ronnie Goolsby, who led the investigation, and his team must have been caught up in the heat of the moment. Women at the university were terrified that the “Tech rapist” could strike anytime. Authorities received many tips, including reports of conversations between black men and white women. As a result, the few African-American males attending the university found it difficult to escape scrutiny.

During a police sting, Cole happened to drive through the St. John’s United Methodist Church parking lot and chat with a white female. He was on his way to the local Mr. Gatti’s Pizza to visit a friend. When Cole arrived and took a seat, Goolsby sent in Rosanna Lue Bagby, an undercover patrol officer, to see if the young man would take the bait. After both parties left the premises, Cole flirted with Bagby, who later told two fellow officers, “I thought he was the person we were looking for.” Police stopped looking for other suspects. Cole became the prime target in the space of two hours.

Cole turned down a plea bargain the day before his trial began that would have allowed him to walk free if he admitted to the crime. Cole said his whereabouts during the crime could be substantiated by at least five others who were with him at his apartment. No one questioned these witnesses before the trial.

Captain Greg Stevens, public information officer for the Lubbock police, says the department has learned from this experience. He told the Lubbock Avalanche-Journal in June that arrests are no longer made based on one eyewitness identification. “It would have to be corroborated with more evidence, more information,” he says.

The city still has much to answer for. Lubbock and its police department have never apologized to Cole’s family, who want to find out what happened during the investigation; who knew what and when. Why is the city refusing to allow officers involved to be questioned? What does the city fear they will say under oath?

Demands by the Innocence Project and Cole’s family to question the police have met stiff opposition, and the city says there’s no need for further investigation. The mayor, city council members and city manager have concluded that Cole’s posthumous pardon by the state ended, once and for all, the city’s obligation. In June, state District Judge Les Hatch ruled that Cole’s family lacked legal standing to request the depositions. Only Cole could have brought this action, Hatch said, but since Cole is deceased, the matter is moot.

Recently the state’s Timothy Cole Advisory Panel on Wrongful Convictions released a 10-month study containing several recommendations, among them reforms in eyewitness procedures and the way suspects are interrogated, that might lead to changes in the way criminal investigations are conducted. Perhaps the Legislature will enact laws next year to ensure the highest level of justice possible.

This is a start, some say, but these reforms fall short of the mark. As Charlie Dunn, a Lubbock lawyer put it, “Instead of tapping state funds to reimburse exonerees, the county that produced the wrongful conviction should be held responsible. Hitting one’s pocketbook for his or her errors usually produces a greater desire to do the job right the first time.” It’s time for the city of Lubbock to answer, and pay, for its tragic mistake. 

 

Fred B. McKinley is the author of A Plea for Justice. He lives in Burleson and continues to write and lecture about reforms in the criminal justice system.