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February 13, 2009
Tim Cole's family gets apology from Lubbock County prosecutor
A week after a Travis County judge cleared Tim Cole’s name, the family of the former Texas Tech University student who was wrongly convicted of rape and died in prison returned to Lubbock this week.
They did not expect a meeting with former Lubbock County Criminal District Attorney Jim Bob Darnell, who argued for Cole’s conviction despite compelling evidence that he was not guilty and who declined invitations to attend a hearing on the case last week in state District Judge Charlie Baird’s court in Austin.
But when Cole’s mother, Ruby Session, and his brothers were surveying the Lubbock courtroom where their collective nightmare played out in 1986, Darnell, now a judge in an adjacent court, asked to speak with them.
In a conference room at the courthouse, Darnell apologized, according to the Lubbock Avalanche Journal.
Reporter Elliott Blackburn wrote:
The Sessions did not feel they had forgiven him, they said later. But the courage of the gesture struck them. It humanized a key figure in their brother’s death, Cory said.
“He’s not a West Texas prosecuting machine,” Cory said. “He’s a West Texas prosecutor.”
Read the story here.
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February 6, 2009
Judge rules man who died in prison did not commit 1985 rape
State District Judge Charlie Baird closed an extraordinary hearing today by finding that Timothy Cole, who died in prison in 1999, did not rape fellow Texas Tech student Michele Mallin in 1985.
The announcement brought tears to members of Cole’s family, who have sought to clear his name after another man confessed to the crime. That man’s guilt was confirmed by DNA testing.
“I find to a 100 percent moral, factual and legal certainty that Timothy Cole did not sexually assault Michele Murray Mallin.”
Baird, who took the case after a Lubbock case denied a joint request by Malin and Cole’s family to consider it, further stated that Timothy Cole’s reputation was wrongly injured, that his reputation must be restored and that his good name must be vindicated”
The Innocence Project of Texas, which represented Mallin and the Cole family, said it was likely the first post-conviction posthumous DNA exoneration in Texas.
Earlier today, convicted rapist Jerry Johnson admitted in the Travis County courtroom that he — not Cole — raped Mallin in 1985.
“It’s been on my heart to express my sincerest sorrow and regret and ask to be forgiven,” said Johnson, who is serving life in prison for two other 1985 rapes in Lubbock County.
After Johnson spoke, Baird asked Mallin and Cole’s mother, Ruby Session, if they wanted to address him.
Mallin stood at a courtroom table and scolded Johnson.
“I am a very strong 44-year-old woman and I love knowing that you are going to be spending the rest of your life in prison,” Mallin said. “What you did to me is something you should never do to any woman in any time and any place. I am the one with the power right now, buddy, and you listen and you listen good — You better tell every rapist in that stupid jail that no woman deserves this.”
She said that Cole “deserves to be here today.”
Then Session, in sharp contrast to Mallin’s spirited remarks, spoke to Johnson calmly and slowly.
“Timothy, all he wanted was exoneration and full vindication,” she said.
“I want you to know he was a fine young man. I miss his smile, I miss all the hugs and I miss those salutations in those letters I was getting from him. ‘Just a few lines for my favorite young lady.’
“I’ll never feel that again.”
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Witness identification bill pushed at Capitol
Before resuming their courtroom effort to clear the name of dead man that they say was likely wrongly convicted, Innocence Project lawyers made a stop at the Texas Capitol this morning to push a bill designed to standardize witness identification procedures.
Those procedures would help prevent the faulty witness identifications that have been part of 80% of the 38 post-conviction DNA exonerations in Texas. Barry Scheck, national Innocence Project director, said the procedures will “protect the innocent and enhance the ability of law enforcement to convict the guilty.”
Scheck blames a photographic lineup that was poorly administered by police in Lubbock for the 1986 rape conviction of Timothy Cole, who died in prison in 1999 at the age of 39.
DNA testing and the admissions of Jerry Wayne Johnson, serving a life sentence for other rapes, appear to point to Cole’s innocence. State District Judge Charlie Baird this afternoon will continue a hearing on a request by Cole’s family and the rape victim, Michele Mallin, to formerly clear his name.
Mallin picked Cole out of a photographic lineup. His color Polaroid photo was among five black and white photos, a practice that Scheck called suggestive. Innocence Project lawyers say that Mallin’s initially tentative identification was likely cemented by positive feedback from the police.
Cole’s brother, Reginald Kennard of Austin, testified Thursday that after Mallin picked his brother out of a live linup, the police celebrated in front of Mallin as if they had won the Super Bowl.
Senate Bill 117, sponsored by Senator Rodney Ellis, D-Houston, would require that an officer who is not familiar with the case and does not know which lineup subject is the suspect administer the lineup. Under the bill, police would have to audio or video tape the lineup and all lineup members must resemble the witness’s description.
Scheck said that a handful of states, including New Jersey and North Carolina, and a variety of jurisdictions in other states, including Dallas, have adopted similar standards.
Det. James Mason, an Austin police spokesman, said that Austin police rarely use live lineups and always make sure they use six similar looking people in similar picture styles when they present photographic lineups.
Mason said the lead detective in a case usually shows the witness the photographic lineup, but it is understood at the department that the detective not display any bias. He said there is no departmental policy on administering lineups.
Gary Wells, an Iowa State University professor and top expert on witness identification, said he met with Austin police and Travis County prosecutors yesterday to discuss conducting a study of lineup procedures here. That study would look at whether it is more accurate to show witnesses lineup photos one at a time or a group of photos together on a page.
Scott Henson, policy director for the Innocence Project, said the group is also pushing other legislation, including Senate Bill 116, which would require video recording of interrogations conducted after an arrest.
“It’s going to be up to the Legislature and only the Legislature to being restoring justice to the criminal justice system in Texas,” said Innocence Project of Texas lawyer Jeff Blackburn, who represents Mallin and the Cole family.
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February 5, 2009
Exoneration hearing under way
A hearing that could lead to the first formal posthumous DNA exoneration in Texas is under way in a Travis County courtroom.
State District Judge Charlie Baird’s court is filled to capacity for the hearing. The crowd includes about two-dozen family members of Tim Cole, the man who died in prison in 1999 while serving a 25-year prison for a crime he likely did not commit.
Cole was convicted of raping Michele Mallin, then a 20-year-old fellow Texas Tech student, in Lubbock in 1985. DNA results last year showed that a man convicted in two other rapes in Lubbock that year likely committed the crime.
Mallin, who in photographic and live lineups identified Cole as her attacker in 1985, is joining Cole’s family in seeking to formerly clear Cole’s name.
The Innocence Project of Texas is representing them.
After a Lubbock judge denied their bid for a hearing on the case, Innocence Project of Texas lawyer Jeff Blackburn brought the case to Baird. Blackburn said he wanted it heard in the state capital and called Baird one of the state’s best judges.
“All they ever wanted,” Blackburn said in his opening statement, pointing to Cole’s family, “was the simple satisfaction of having a court in this state … just say we made a mistake.”
Barry Scheck, a co-director of the national Innocence Project, is assisting on the case.
He said the hearing will help avoid wrongful convictions in the future.
“We can’t have justice unless we learn from the mistakes,” Scheck said.
Jerry Wayne Johnson, a man convicted of two other rapes around the time Mallin was raped, is expected to testify. He has sent a series of letters since 1995 confessing to the crime.
Also in the court is Dallas County District Attorney Craig Watkins, whose conviction integrity unit chief will testify at the hearing.
Baird said he was honored to have Watkins in his court, calling himself an “admirer” of Watkins.
The first witness of the hearing is Mallin, who is telling Baird about the night she was raped in 1985 and how angry she was.
“It just angered me,” she said. “I thought ‘you don’t’ have the right to do this to me.’ I thought ‘if I get out of this alive, you are going down.”
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Lubbock DA in Austin, but not for exoneration hearing
The district attorney from Lubbock County is in Austin today but said he won’t attend an extraordinary hearing in state District Judge Charlie Baird’s court scheduled to begin at 1:30 p.m. involving a wrongful conviction in a 1980s rape case in Lubbock County.
Lubbock County Criminal District Attorney Matthew Powell is the man who ordered DNA testing in the case that corroborated years of confessions to the 1985 rape of Texas Tech student Michele Mallin by Texas prison inmate Jerry Wayne Johnson. Fellow Tech student Timothy Cole was convicted based on Mallin’s faulty identification and sentenced to 25 years in prison.
Cole died in prison in 1999, and his family is joining with Mallin in Baird’s court in the hopes of officially clearing his name. After a Lubbock court denied a request by the Innocence Project of Texas to take up the case the group went to Baird.
Powell, who became Lubbock district attorney in 2005 and before that was first assistant for five years, said he is in Austin to recruit prosecutors at University of Texas School of Law job fair. Innocence Project of Texas lawyer Jeff Blackburn said he has invited Jim Bob Darnell, the West Texas judge who prosecuted the case against Cole, to the hearing but has not heard back.Darnell could not be reached.
Reached by phone, Powell said he does not believe that the hearing is the proper setting for the case.
“In my mind, I’ve exonerated him,” Powell said, referring to the DNA testing he ordered last year that linked Johnson to Mallin’s rape. “This is unlike anything I’ve ever seen.
“Do I blame him (Blackburn) for doing what he is doing? If it was my son I would do everything in my world to clear his name but I don’t think I have to be there.”
Powell said Johnson, who is serving a life term and a 99-year term for two rapes committed in 1985, would not be charged in Mallin’s rape because the statute of limitations has run out.
The case against Cole rested on Mallin’s identification of him in photographic and live line-ups and in court. Blackburn has called those lineups “suggestive” and the Innocence Project is pushing for state legislation that sets a standard for how police administer lineups.
When asked who was to blame for Cole’s conviction, Powell did not include police and prosecutors.
“Where it went wrong is you had a victim who picked him out of a lineup,” he said.
He said he has not conducted a review of the case to see what went wrong.
“I didn’t think it was necessary,” he said. “This is the greatest system in the world but it is a system built on people and people make mistakes.”
To read a complete Statesman report on the case, click here.
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February 4, 2009
Rape victim defends faulty identification of Tim Cole
It seems some people who chose to comment online about the sad case of Timothy Cole, reported in yesterday’s Statesman and online here, 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 (at right) 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 is coming 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:
“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.”
Cole’s case is not isolated. About 80 percent of the Texas cases where people were exonerated by DNA testing since 1994 involved some kind of witness misidentification, according to the Innocence Project of Texas.
Gary Wells, an Iowa State University professor who is a leading authority on witness identification has written that their accuracy is frequently imperfect and often depends on the methods employed to obtain the identifications. Wells will testify at the hearing in Cole’s case in state District Judge Charlie Baird’s court that begins Thursday afternoon.
In Mallin’s case, detectives showed her a live lineup with six pictures — five black and white booking photos and one larger color Polaroid picture of Cole. Innocence Project of Texas lawyer Jeff Blackburn called this method “suggestive.”
Dallas police, who used to show witnesses photo lineups with six pictures all at once, recently began using the sequential blind method, developed by Wells. They now have someone who does not know which photo is of the suspect show them pictures one at a time.
Statesman.com commenter Lynn82 had it right when she wrote, “the data show that our degree of certainty has little to do with our accuracy”
“I’m just very surprised to see that people’s initial reaction is to attack Ms. Mallin as being this awful person who’s completely at fault when the system makes it so easy to make bad IDs and convicts people using nothing else,” Lynn82 wrote.
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