Inmate Jerry Wayne Johnson passes a photo of Timothy ColeA man who died in prison while serving time for a rape he didn't commit was cleared by a judge who called the state's first posthumous DNA exoneration "the saddest case" he'd ever seen.[Texas] State District Judge Charles Baird ordered Timothy Cole's record expunged.
Cole was convicted of raping a Texas Tech University student in Lubbock in 1985 and was sentenced to 25 years in prison. He died in 1999 at age 39 from asthma complications.DNA tests in 2008 connected the crime to Jerry Wayne Johnson, who is serving life in prison for separate rapes. Johnson testified in court that he was the rapist in Cole's case and asked the victim and Cole's family to forgive him.
"I'm responsible for all this. I'm truly sorry for my pathetic behavior and selfishness. I hope and pray you will forgive me," Johnson said.
-- JIM VERTUNO
Cory Session visited the cemetery near his Fort Worth home, celebrating with his wife and kids a judge's order to clear his oldest brother's name.His children laid flowers on the grave of their uncle, Tim Cole, whom they never met. . . .
There would be plenty of time when he was free, he told his family.
The family hoped for two decades Tim would find that freedom. They spent the last two years hoping another inmate's confession would prove true, and Friday, Cole's family celebrated in an Austin courtroom as State District Judge Charlie Baird ordered Cole exonerated.It seems some people . . . blame rape victim Michele Mallin for Cole's conviction in the case, long prison term and death behind bars in 1999 at the age of 39.
Mallin, at the time a 20-year-old college student at Texas Tech University in Lubbock, identified then fellow Tech student Cole as her attacker in 1985 in a photographic and live line-up. Lubbock police had no other evidence tying him to the crime and it turns out ignored evidence that another suspect, who years later confessed, could have done it.
Mallin, who came to Austin this week to help Cole's family clear his name, has been reading the mean-spirited comments and defended herself in an e-mail:
Our criminal justice system punishes the innocent more harshly than the guilty."It just hurts that anyone would ever think that I did this maliciously. I mean I am a victim myself of a horrible rape which is how this whole entire NIGHTMARE began. If I had been made aware of the facts, such as the fact that there was another very valid suspect that I never even knew about or even that Tim Cole had asthma when I specifically told them the guy smoked, I would have been the FIRST one to want more of an investigation and to find the true culprit. Why on earth would I or anyone else want the wrong person to pay for any crime? That makes no sense and it just shows me how completely ignorant that people are to even think something like that."
These factors lead to the rather perverse outcome that defendants who are innocent are punished more harshly than the guilty. The innocent defendant faces a terrible choice -- either falsely admit guilt, in exchange for a lighter punishment, or defend his or her innocence but pay dearly if he or she loses. Innocent defendants are probably much more likely to choose the latter strategy. Timothy Cole turned down a plea deal for probation because he didn't want to confess to a crime he didn't commit. That's a decision made on principle, one that an innocent person might very well make but rather unusual for a guilty person to make.
Mike Brown, Cole's attorney, did a better job of investigating the case than did the Lubbock Police and [Judge} Jim Bob Darnell. In fact, the official investigators failed in their efforts, and ultimately depended upon lies, bullying, and intimidation. The last thing they wanted was the truth getting in the way of a conviction, and that was what they got.For the first time, hundreds of thousands of Texans arrested on suspicion of crimes could be forced to give samples of their DNA to law enforcement officers under a change in state law being pushed by Texas' top six police chiefs.
Under the proposal, which faces an uncertain future in the current budget-cutting climate, DNA would be taken from everyone who is arrested on suspicion of committing Class B misdemeanors up to the most serious felonies.
One supporter of expanded DNA testing, state Sen. Dan Patrick, R-Houston, said more samples would benefit crime-solving and the wrongly convicted -- as the case of Timothy Cole recently proved.
-- MIKE WARD
Top photograph by Harry Cabluck/The Associated Press
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