Grave Error

In March of 1985, Texas Tech sophomore Michele Mallin was abducted and raped. Authorities arrested, tried and convicted Timothy Cole of the crime. The case was problematic from the start. Mallin said that her assailant smoked the entire time - Cole was asthmatic. She'd been driven to a vacant lot by the assailant in her car - Cole's fingerprints were nowhere in evidence. Cole had an alibi - he was at his brother's home, studying during a card party, and a number of witnesses placed him there at the time of the rape. But Mallin, when presented of a Polaroid of Cole, said that he was the man, and assumed that the police had actual evidence of his guilt.

Starting in 1995 (once the statute of limitations had lapsed), the actual rapist (who, incidentally, had been in jail with Cole), attempted to confess to the crime. And was ignored. Throughout multiple attempts. Over 12 years. It wasn't until he sent a letter to Cole, whom he assumed was out on parole, that anyone took him seriously.

But Cole never saw the letter. He'd died from his asthma in 1999. Still in prison.

His family sought to clear his name.

"With Johnson's letter in hand, Cole's family went to the media. In response, the Lubbock D.A.'s office announced it would run modern DNA tests. When the results came back, it was Jerry Wayne Johnson's DNA on the swabs in the rape kit, not Timothy Cole's.

The Innocence Project of Texas sought relief in court to clear Cole's name, but no judge in Lubbock would grant them a hearing. Darnell, the former district attorney who later became a local family court judge, did not respond to repeated requests for an interview. However, he told the Lubbock paper that he regretted what happened to Cole."

Although the Lubbock courts refused to revisit the case, the Texas state District courts were more charitable, and granted a hearing. The Lubbock County district attorney's office did not participate.

It's understandable the no-one involved in the original case wants to have anything to do with it now. DNA from the rape kit says that they sent the wrong man to prison, where, still maintaining his innocence, he died. Insisting that Cole was guilty, in the face of DNA evidence proving that Johnson was in fact the rapist, is a pretty much untenable position for the Lubbock County DA's office. Coming clean would open them up to liability. And it's unlikely that making Cole's family whole is going to come cheaply.

Cole refused to plead guilty at trial, or to confess in prison to get a shot at parole. He may have paid for his scruples with his life.

"You are to understand you are not to be blamed for this," [state District Judge Charles] Baird said [to Mallin.] "We're all sorry it turned out this way."

Unfortunately, "Sorry" only counts when it can bring back the dead.