At emotional hearing, relatives finally hear man's name cleared

By Aman Batheja-Austin Star-Telegram -Austin, TX

Twenty-two years ago, Ruby Session listened in disbelief as a Lubbock jury convicted her son, Timothy Cole, of rape. She promised herself that one day she would make sure this injustice was corrected.

"I always had faith and I just believed that it would one day happen," Session said.

That day finally came Tuesday when, after years of efforts by Cole’s family and a relentless group of supporters, state District Judge Charles Baird issued the first posthumous DNA exoneration in Texas history.

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

Cole was convicted of aggravated sexual assault in 1986, after Michele Mallin identified him as the man who attacked her near Texas Tech University. Cole had always maintained his innocence.

In 1995, Jerry Wayne Johnson, who was serving two consecutive life sentences in prison for sexual assaults in Lubbock, admitted raping Mallin. Authorities ignored his confession until the Innocence Project of Texas took up the case in 2007. DNA tests in 2008 confirmed that Johnson was Mallin’s attacker.

Cole died in prison in 1999 at age 38 from complications of asthma.

"This is probably the most important decision I’m going to have in my entire judicial career, and I’m honored that I’m the one who was able to do this," Baird said.

Problems with police

Baird laid much of the blame for Cole’s conviction on the Lubbock Police Department for making a "snap judgment" on Cole’s guilt and then refusing to consider other suspects. He described evidence that pointed to anyone but Cole as being "downplayed or deliberately ignored."

He was especially critical of the photo lineup of suspects that was presented to Mallin. Cole’s picture — a Polaroid — was drastically different than the others, making it stand out.

Baird urged the Legislature to take immediate action to make sure that what happened to Cole isn’t repeated. He stressed the need for statewide fair-practice standards on witness identification procedures and easier court access for convicted Texans who proclaim their innocence.

He also called for increasing compensation the state gives to wrongly convicted people and a method for compensating survivors of those who have been exonerated posthumously. Under current law, Cole’s family cannot receive any compensation from the state, said Jeff Blackburn, the Innocence Project’s chief counsel.

Toward the end of the hearing, Baird made a point of speaking directly to Mallin, assuring her that none of this was her fault. Cole’s family also said they harbor no ill will toward Mallin.

Mallin said she still feels guilty about identifying Cole and said she is in counseling over it.

"Until May of last year, I thought he was the one who did it," Mallin said. "I had no idea."

Meeting with Perry

Ruby Session said she is now focused on improving state laws for exonerated people and those who should be. She has met with most of the Dallas men who have recently been cleared of crimes via DNA evidence.

"I feel closeness to them," Session said. "They call me Mom, so I have 19 more sons."

Members of Cole’s family have an appointment today for a private meeting with Gov. Rick Perry. Ruby Session said they plan to talk to him about getting Tim Cole officially pardoned and to discuss legislation related to aiding the wrongly convicted.

Cory Session, Tim Cole’s brother, said he also wants the governor to issue an executive order that on Dec. 2, the 10th anniversary of Cole’s death, all flags at state buildings and prisons fly at half-staff "just so they remember that an innocent man did die in prison and that the system is broken and it can never be fixed for Timothy Cole."