It’s official: Cole is exonerated

AUSTIN — Timothy Cole’s family looked to the governor’s office Wednesday with a newly printed judicial order in hand, hoping to finish clearing the state’s first posthumous exoneree after 22 long years.

Cole’s mother, Ruby, his siblings and attorneys would have a private meeting with Gov. Rick Perry a day after State District Judge Charlie Baird issued a final order formally exonerating the former Texas Tech student a Lubbock County jury convicted of a rape he did not commit.

The written order read echoed much of what Baird said from the bench after two days of sometimes dramatic hearings in February. The eighth floor courtroom in downtown Austin lacked the crush of national media and a curious gallery that filled those hearings. Only Cole’s family, including his brothers Sean and Kevin, and a handful of onlookers sat in pews in the back of the courtroom. State and local media filled the jury box and watched as Baird read the findings to Cole’s youngest brother, Cory, his attorney, his mother, and the woman Lubbock police accused him of raping.

But it offered the family a different kind of relief, they said. Cory Session called the 15 pages “a document our family will hold sacred.”

Ruby saw the last obstacles blocking her son’s vindication beginning to clear.

“Nobody can ask for a better day than today,” Ruby said.

Cole was a business student the spring of 1985, back in Lubbock to keep an eye on his younger brother Reggie after a stint in the U.S. Army. The Fort Worth native had started his college career in Lubbock years before, but left for San Antonio, hoping to play college basketball.

Police picked him up as a suspect in a series of high-profile rapes near the Tech campus after he flirted with an undercover officer. One victim picked him out of a photo and later live line-up now criticized as suggestive – the trial that convicted him was based heavily on her identification.

Cole refused to claim guilt in the case in exchange for probation, and served 13 years of his sentence protesting his conviction from behind bars. Courts ignored an attempt by Jerry Wayne Johnson, the true rapist, to confess to the crime in 1996.

Cole died Dec. 2, 1999, from complications from asthma.

Johnson renewed his attempts to confess, not knowing Cole was dead. DNA testing on material from the case kept by the Lubbock County District Attorney’s office cleared Cole last spring.

Baird praised district attorney Matt Powell and the work of the Innocence Project of Texas for proving Cole’s innocence.

Poor police work that destroyed, “downplayed or deliberately ignored” evidence Cole did not abduct and rape a fellow Tech student imprisoned Cole, Baird said.

“The evidence is crystal clear that Timothy Cole died in prison an innocent man, and I find to a 100 percent moral, legal, and factual certainty that he did not commit the crime of which he was convicted,” Baird said.

He called for reforms to eyewitness identification, prisoner access to scientific evidence that could prove their innocence and compensation for the exonerated, issues the Innocence Project began pushing early this legislative session.

Ruby and Cory Session, her youngest son, had spent many hours in the two months since testifying in Baird’s Austin court pushing the same legislation before House and Senate committees. Ruby felt closer to other surviving exonerated Texas inmates, who she said call her “Mom,” after the work “Any little thing I can do, any person I can contact on their behalf, that’s what I’m doing,” Ruby Session said. “I have 19 more sons.”

The Lubbock County District Attorney’s office assisted them on eyewitness legislation last week after facing public condemnation for not participating in Baird’s hearings in February.

The office still did not support the hearings in Austin, which relied on a rarely used provision of Texas

criminal code to make its findings. But Marc Chavez, a legislative liaison and assistant district attorney, said Tuesday in a telephone interview they shared a common interest to prevent future bad identifications and to improve those procedures.

He joined the Sessions and Innocent Project attorney Jeff Blackburn last week asking for changes to state law and police department procedure.

“One of the main reasons I came down here this session was for this specific piece of legislation,” Chavez told the House Criminal Justice committee.

Michele Mallin sat next to Ruby on Tuesday as Baird read the order exonerating Cole. His family had forgiven Mallin long before, telling her she was not to blame for his imprisonment and death. Baird, too, told her several times through the hearings that poor police procedure had jailed Tim Cole.

But the community at large was not so forgiving, she learned after facing Johnson in February for the first time since the 1985 attack.

“No person deserves what that young man got. He deserves to be here today,” she said in February as she castigated him for the attack and his first years of silence. “You did all of this.”

She had described for the court her naïveté as a young college student thinking she could not be raped, as a victim dealing with police and as a witness in a criminal trial. Her identification of Cole, based on procedures experts called deeply flawed, anchored an otherwise weak case against the Tech student.

Mallin again blamed naïveté  Tuesday after recounting an anonymous voicemail waiting for her when she returned from Austin.

A woman left a voicemail telling her Cole’s mother was too nice to Mallin and “someone should slit [her] throat.”

Mallin kept her new number under close guard and ignored discussion of the trial on the Internet, she said.

“I wouldn’t have thought that way about someone, even if I wasn’t a rape victim,” Mallin said.

Jerry Johnson did not attend this last stage of the hearing. Court officials brought him to Austin from the Price Daniels facility outside of Snyder to again confess to the crime and to face his victim and Cole’s mother.

He had wanted to see them as the hearings approached; wanted to apologize and hoped seeing him would help. But he left Austin frustrated with the Innocence Project of Texas and the focus of the testimony and regretting his role in it.

Johnson wanted more inquiry into problems with forensics work and was critical of the unusual legal maneuvers used to hold the hearings, he wrote in a handwritten letter from a transfer facility not long before he returned to Snyder.

“I know and understand what is right and wrong regarding the entire Cole matter and this has not been done,” Johnson wrote in a handwritten letter. “To know this, and to know that criminal justice officials unlawfully instituted and conducted the hearings that cleared Tim, does not sit well with me and illustrates why it’s said that the Texas criminal justice system is broken. On the day the hearings started, [District Attorney] Matthew Powell told the press the hearing was inappropriate, and I concur.”

Legislation authored in party by Lubbock Sen. Robert Duncan would allow the state board of pardons and appeals and the governor to create a system to exonerate inmates who have died.

Cory Session said he would ask Gov. Rick Perry today to support the reforms they lobbied for with legislators in the months of testimony and “Cole calls” to representatives and senators.

He also hoped the governor would ask that prisons, state buildings and Texas Tech mark the date of the death of the brother that taught him to tie his shoes.

 “It’s for the future,” Ruby Session said. “Even though it’s for Timothy now, it’s for the future, and we’re pleased with that.”

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