Seeking justice for convict who died in prison
Rape victim, late inmate's family have DNA tests, other man's confession to back their claim.
By Steven Kreytak
Austin AMERICAN-STATESMAN STAFF
Tuesday, February 03, 2009
In 1985, Michele Mallin was abducted from a church parking lot near Texas Tech University in Lubbock, driven outside of town and raped.
In photographic and live lineups, she identified fellow Tech student Tim Cole as her attacker. That sent Cole to prison, where he died of complications from asthma in 1999 at the age of 39.
DNA tests and repeated confessions from another suspect — who is serving life in prison for two other rapes in Lubbock in 1985 — have since shown that Cole was probably innocent.
On Thursday, Mallin will join members of Cole's family in an Austin courtroom to try to officially clear Cole's name.
"It is the right thing to do," said Mallin, now 44 and living in Baytown.
Lawyers for the Innocence Project of Texas, which is representing Mallin and Cole's family, said if state District Judge Charlie Baird declares that Cole did not rape Mallin, it will be the first posthumous DNA exoneration by a Texas court. Innocence Project lawyer Jeff Blackburn of Amarillo asked Baird, a sometimes unconventional former Texas Court of Criminal Appeals judge, to take up the case last year after a court in Lubbock refused.
Since 1994, 35 former Texas inmates — all living—have been exonerated in Texas courts by DNA testing, according to the Innocence Project of Texas. About 80 percent of those were convicted at least in part by witness misidentification, said Natalie Roetzel, Innocence Project's executive director.
The Innocence Project of Texas is hoping to use the case not only to clear Cole but to push for laws strengthening witness identification procedures. The group will hold a Capitol news conference Friday asking for legislation formalizing those procedures, expanding compensation for wrongfully imprisoned people to include surviving family members and making other criminal justice reforms.
Though there is no direct way under Texas law to seek a formal exoneration for someone who has died, Baird said that when the courts have committed a wrong, Texas law states that the courts shall remedy that wrong.
"I am disappointed that the courts in Lubbock County did not think that there was sufficient basis to conduct a hearing," Baird said. "I think it is incumbent upon a judge somewhere in Texas to pick up this case and give the Cole family a fair hearing and to restore the good name of their child."
A string of rapes in late 1984 and early 1985 terrorized the Texas Tech campus. According to the Innocence Project and accounts in the Lubbock Avalanche-Journal, the cases had striking similarities: an African American assailant who showed a small pocket knife, drove the victims to a remote location outside of town, raped them, stole cash or jewelry and then fled on foot.
Mallin was the fifth victim. She was 20 years old when she was approached by a man asking for jumper cables on March 24, 1985. Threatening to kill her, the man, who said he was a student, drove Mallin to the eastern outskirts of town, beyond the city lights, according to the police report.
"I was a virgin," Mallin said in a recent interview. "I had never planned on having sex before marriage. I begged and pleaded for him not to do that to me."
After the attack, Lubbock police sent out a young female officer in plain clothes to try to lure the assailant while detectives looked on from afar, according to news accounts. Cole approached the officer while leaving a Mr. Gatti's restaurant, and after they talked for a while, the woman declined Cole's offer of a ride or a drink, the news reports said.
After the flirting, officers presented a folder that contained a color Polaroid picture of Cole and a handful of smaller black and white mug shots of other men to Mallin, said Blackburn, who called the lineup presentation "suggestive."
Mallin identified Cole. The next day she did it in person at the police station after he was arrested and told to stand in a lineup. None of the other victims identified Cole as her attacker.
At Cole's trial the next year, prosecutors worked to keep evidence of the other rapes from the jury (saying the jurors should focus on the crime with which Cole was charged), and Mallin was "unshakable in her insistence" that Cole was the man who had raped her, the Avalanche-Journal reported.
The jury found Cole guilty and sentenced him to 25 years.
Victim blames system
Mallin recalled that she had assumed detectives had evidence against Cole other than her identification. Her assailant had left a cigarette in her car and had touched her steering wheel and cigarette lighter, she remembers. Testimony during the trial said that forensic tests were inconclusive, news reports said.
Mallin said she regrets that Cole spent so much time in prison but blames a bad investigation and prosecution, not herself. "I have felt very guilty, but I knew in my heart of hearts it was not me but the way the investigation was handled," she said. "I feel like they could have done things a lot more properly."
Cole refused a plea bargain on the eve of trial that would have given him a sentence of probation, Blackburn said. When he came up for parole, he again refused to admit to the crime, even though it could have meant freedom.
"I am just proud of him for that," said Cole's mother, Ruby Session of Fort Worth. "It was his greatest desire to be exonerated and totally vindicated."
In 1995, Jerry Wayne Johnson wrote the first in a series of letters admitting his guilt — to the Lubbock district clerk, to a judge and, finally, one addressed to Cole in Fort Worth. Session said that last letter arrived at her house in 2007, eight years after her son had died.
After media outlets began asking questions, Lubbock County Criminal District Attorney Matthew Powell ordered DNA testing and confirmed that Johnson's DNA matched biological material gathered after the rape of Mallin.
In May, Mallin, who is married and pursing the bachelor's degree that she abandoned in 1985, got a call from a Lubbock prosecutor.
"I was just beyond shocked; I was crying," she said. "This man died in prison for something he never did, and I was the one who sent him there."
Session said her family does not blame Mallin. "We are just thankful that she has vowed to help us," Session said.
Blackburn took a formal request for a hearing in the case first to Judge Blair Cherry in Lubbock, who denied the bid in August.
Then, Blackburn said, he went to Baird, in part because Baird sits in the state capital and in part because he considers Baird "one of the best judges in the state."
"The outcome of this hearing will determine how good of a justice system we really have in this state," Blackburn said. "Do we have a justice system that is willing to admit it's made mistakes."
Blackburn has asked Baird to consider action under one or all of three sections of Texas law:
• To find probable cause that Johnson raped Mallin, in a court of inquiry, a rare legal procedure designed to bypass the grand jury process.
• To enter an order exonerating Cole under a provision of the state Crime Victims Bill of Rights that guarantees crime victims be treated with fairness and with respect. The Innocence Project of Texas considers Mallin and the Cole family to be crime victims.
• To enter an order exonerating Cole under a Texas Constitution article that states "every person for an injury done him in his lands, goods, person or reputation shall have remedy by due course of law."
Baird said he is considering the case predominantly under the third argument.
Johnson, who has not been charged in Mallin's case, will be brought to Travis County to testify at the hearing. Baird also will hear from Barry Scheck, a director of the national Innocence Project, who will talk about where the investigation into the rape of Mallin went wrong, and Gary Wells, an Iowa State University professor and a leading expert in witness identification procedures.
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. Neither Darnell nor Powell, the current Lubbock County district attorney, could be reached for comment. Cherry, who denied the petition to hold the hearing in Lubbock, also could not be reached.
Blackburn said that Johnson probably will never be charged because the statute of limitations has run out. He said Cole's family probably would not be successful in a civil lawsuit because the case is so old and because he could not prove a pattern of behavior by Lubbock police and prosecutors.
"These are not vindictive people; these are not angry people," he said. "These are just people who want their son's name cleared." email@example.com