RENEE MONTAGNE, host:
In Texas today, the family of Timothy Cole will be in court to clear his name. Back in the mid-1980's, Timothy Cole was convicted of raping a fellow student at Texas Tech University in Lubbock. He had never been in trouble with the law before, but he went to prison, largely on the testimony of the victim. Move forward a decade. Another man wanted to confess to the crime, but no one would listen. DNA tests eventually exonerated Timothy Cole, and his accuser admitted she was mistaken. But these things came too late. NPR's Wade Goodwyn has our report.
WADE GOODWYN: It was March 24th, 1985 and Texas Tech sophomore Michele Mallin had just returned to her dorm room after a weekend visiting her relatives. It was getting late when she remembered with exasperation that she needed to move her car to a legal parking spot.
Ms. MICHELE MALLIN: I thought, well, I'll just run over there and do that real quick. It was almost 10:00 o'clock. And then I'll come back and get a - take a shower and go to bed.
GOODWYN: As Mallin finished parking her car, a black man appeared at her door and told her he was having car problems. Did she have any jumper cables?
Ms. MALLIN: Then all the sudden, he just opened the door of my car and just pushed himself - forced himself in and then he put a knife to my throat at same time and pushed me over into the passenger seat and started to drive away and started telling me, you know, stop screaming, 'cause I was screaming my head off there. I'm going to kill you.
GOODWYN: Mallin, of course, feared for her life as he drove her out of Lubbock to a vacant lot. But she was strong, athletic, a virgin, and determined to stay that way.
Ms. MALLIN: I just couldn't fight him. I mean, as much as I tried, I just couldn't - he was just stronger than me physically.
GOODWYN: Her attacker had one very distinguishing and, for Mallin, disgusting characteristic.
Ms. MALLIN: Yeah, he smoked the whole time. I mean, he - and I told them that from the get-go.
GOODWYN: A chain-smoking African-American rapist who used a knife. That was the man Lubbock police should have been looking for. But it was non-smoking, black asthmatic they eventually settled on. Timothy Cole enrolled at Texas Tech for the spring semester of 1985. One of his friends worked at a Mr. Gatti's Pizza near campus, and Tim would often wait for him there. That restaurant was just a few blocks from where Michele Mallin was raped. The police took a Polaroid of Tim Cole and showed it to Michele Mallin.
Ms. MALLIN: Yeah, I was pretty confident. I never really wavered. I really honestly believed that they had, you know, found the right guy and I had picked out the right guy. Because I always assumed - I mean, I didn't never ask questions. Of course, I was only like 20. But I just assumed that, you know, that they had other physical evidence.
GOODWYN: But there were holes in the prosecution's case: No physical evidence tied Cole to the crime. Though the rapist drove the car extensively, Cole's fingerprints weren't found in the car.
And Cole had a solid alibi: At the time of the rape, he was studying in his apartment while his brother was having a card party in the living room. Several young people would come forward and testify that Cole was right there in the apartment with them all evening. But they were African-American, and the district attorney attacked Cole's witnesses as brash, slick liars who would say anything to save their friend.
In the end, the all-white jury believed the white victim, and though Timothy Cole had no previous record, he was sentenced to 25 years in prison. As he sobbed in his jail cell crying out that he was innocent, another inmate, Jerry Wayne Johnson, listened.
Mr. JERRY WAYNE JOHNSON: He was briefly in a cell across from mine, and you're listening to the conversation of him crying about having been wrongfully convicted.
GOODWYN: Johnson was in jail, charged with raping two other women. One victim was a 15-year-old white girl he brazenly snatched right out of her high school. Like Michele Mallin, Johnson had held a knife to teen's throat as he drove her to a vacant lot outside of Lubbock. And Johnson was a heavy smoker.
Johnson had been following Tim Cole's trial closely because he was the one who'd really raped Mallin. In an interview with the Lubbock Avalanche Journal, Johnson described listening to Cole's anguished cries that night.
Mr. JOHNSON: And I just, I looked over, and was just kind of looking at him, you know. I didn't say nothing to him.
GOODWYN: The idea that it was really Johnson who raped Michele Mallin seemed to occur to everyone except Lubbock law enforcement. Johnson's name was repeated brought up during Cole's trial, but it had no effect on the jury. After Cole was convicted, the real rapist quietly waited for the statute of limitations to run out.
Then, in 1995, Johnson wrote the district court in Lubbock and confessed to raping Michele Mallin. He got no reply. So he wrote again, asking for an attorney so that he could legally confess. Again, he was ignored.
Eventually, Johnson wrote the former Lubbock district attorney who prosecuted the case, Jim Bob Darnell, and asked for his help. There was only silence in reply.
By 2007, Johnson, still in prison, tracked down what he thought was Timothy Cole's address. He assumed Cole had been paroled out of prison after 20 years. Johnson wrote to Tim Cole and confessed. It was Ruby Session, Tim Cole's mother, who first opened the letter.
Ms. RUBY SESSION (Mother of Tim Cole): My son read it. I couldn't sit down. I couldn't eat. I couldn't walk. I wanted to go outside. I wanted to stay. I was beside myself.
GOODWYN: In the end, Johnson's confession was too late. Tim Cole struggled to get adequate medical treatment in prison for his asthma. Twice he was found unconscious in his cell and barely saved in hospital emergency rooms. But on December 2nd, 1999, Tim Cole was again found unconscious in his cell. This time he died before the prison got him to the hospital. He was 39 years old.
With Jerry Wayne Johnson's letter in hand, Cole's family went to the media. In response, the Lubbock DA'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 Tim Cole's. With the physical evidence now incontrovertible, the Innocence Project of Texas sought relief in court to clear Cole's name. But no judge in Lubbock would grant them a hearing.
Former District Attorney Jim Bob Darnell had gone on to become a local family court judge. He did not respond to repeated requests for an interview, but he told the Lubbock paper that he did regret what happened to Timothy Cole. It eventually took a state judge in Austin to review the facts and grant a hearing for relief, which begins today.
Though Lubbock law enforcement has declined to testify, the rape victim, Michele Mallin will. She'll take the stand and ask that Timothy Cole be exonerated in death.
Ms. MALLIN: Well, I felt really guilty and I still feel guilty. I'll always feel guilty about it because, I mean, my testimony sent a man to prison and he ended up dying there. I mean, even though I know I did everything I could in my, you know, my heart of hearts to do the right thing, I mean, still that happens. But I know the police are responsible on - and you know, the DA are too because they knew things that I didn't know.
GOODWYN: Thirty-four men in Texas, most of them black, have been exonerated by modern DNA testing this decade, though they spent 10, 15, 20, even in one case 27 years wrongfully imprisoned for rape, eventually they were released. No such remedy is available for Timothy Cole, a bright, likeable young man who got along well with everyone and who, in the spring of 1985, had his whole life ahead of him.
Wade Goodwyn, NPR News, Dallas.
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