TX- Inmate who died in 1999 declared innocent of rape

2-9-2009 Texas:

AUSTIN, Texas — A Texas judge has tossed out rape charges against a Fort Worth, Texas, man who died in prison, proclaiming his innocence to the end.

Travis County State District Judge Charlie Baird ordered Friday that any mention of Timothy Cole's 1986 conviction in Lubbock County for aggravated sexual assault be expunged from any criminal record.

"I find to a 100 percent moral, factual and reasonable certainty that Timothy Cole did not sexually assault" the victim Michele Mallin, Baird said at the conclusion of two days of testimony, including the appearance Friday of Jerry Wayne Johnson, the real rapist.

According to the Innocence Project of Texas, Cole is the first person to be posthumously exonerated by DNA evidence. He died in prison in 1999, while serving a 25-year sentence.

"I find that Timothy Cole's reputation was wrongly injured, that his reputation must be restored and that his good name must be vindicated," the judge ruled.

Cole's family and Mallin, the woman who mistakenly identified Cole as her attacker, had asked the court to determine whether a special court of inquiry was needed after recent DNA tests confirmed Cole's innocence.

DNA tests in 2008 connected the crime to Johnson, who is serving life in prison for separate rapes. Johnson, 49, testified Friday 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."

The Seattle Times does not typically identify rape victims but Mallin, now 44, came forward publicly to help clear Cole's name.

Confronting Johnson after his testimony, Mallin told him she was "going to try to forgive you, but it's going to take a long, hard time. ... No person deserves what that man got. He could have been a father, he could have been a grandfather right now."

Baird granted the relief to the Cole family and to Mallin after attorneys from the Innocence Project dropped their bid for a complete court of inquiry, instead asking Baird to make the decision.

They hope to use his ruling to seek a pardon from Gov. Rick Perry.

"I have his name, and it is what I wanted," said Ruby Session, 72, Cole's mother, a retired Fort Worth schoolteacher.

On Thursday, Session pleaded with Baird to clear her eldest son's name, saying his "greatest desire was to be exonerated and totally vindicated."

Cole was convicted of aggravated sexual assault after being tapped as the "Tech Rapist" and linked to a string of rapes near Texas Tech University in 1985.

Cole was 39 when he died. His family thinks his heart was weakened by inadequate medical care he received in prison for an asthmatic condition.

Cole always professed his innocence, declining to take a plea bargain or to admit his guilt as a condition for getting parole.

Baird, a former Texas Court of Criminal Appeals Court justice, praised Cole's courage from the bench and apologized to his family and to Mallin for what they have endured. He hoped his ruling would bring them comfort.

Mallin identified Cole three times: in two lineups and at the trial. But the photo lineup was faulty because Cole's picture — a Polaroid — was different from the other photos used.

Reginald Kennard, Cole's brother, also said he heard detectives coaching a witness to pick his brother as the suspect.

Johnson first confessed in 1995, after the statute of limitations prevented him from being charged with the crime. But the authorities in Lubbock County ignored his letters, he said.

He kept up his efforts, contacting the local newspaper and Texas Tech law-school students working for the Innocence Project. Their efforts persuaded Lubbock County District Attorney Matt Powell to begin his own inquiry and new DNA tests using technology not available in 1986 confirmed that Johnson committed the crime. ..News Source.. by Max B. Baker, The Fort Worth Star-Telegram and Courthouse News