Inside The Case To Exonerate Timothy Cole NPR's Tony Cox continues the conversation about Timothy Cole with his mother, Ruby Session, and Michele Mallin, the rape victim whose testimony helped secure Cole's conviction. Cole was sentenced to 25 years in prison, before dying behind bars, for a rape he didn't commit.
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Inside The Case To Exonerate Timothy Cole

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Inside The Case To Exonerate Timothy Cole

Inside The Case To Exonerate Timothy Cole

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From NPR News, this is News & Notes. I'm Farai Chideya. As part of this week's broadcasts of favorite listeners' segments, we bring you our report on a wrongful conviction case, from NPR's Tony Cox.

TONY COX: Timothy Cole was a 26-year-old student at Texas Tech when a judge sent him away for 25 years, a sentence for a rape he did not commit. Through multiple parole hearings, Timothy maintained his innocence. He died behind bars nine years ago. Now, DNA evidence and a confession by another convicted rapist show he was wrongfully convicted. But Texas doesn't have a formal process to exonerate someone who has already died. In a few moments we'll hear from Timothy Cole's mother and from the rape victim whose testimony helped convict him. But first, we have the chief counsel for the Innocence Project of Texas, Jeff Blackburn, to give us the background on the case of Timothy Cole and the effort to clear his name. Jeff, welcome to News & Notes.

Mr. JEFF BLACKBURN (Chief Counsel, The Innocence Project of Texas): Thank you for having me, Tony.

COX: Let's begin with this. How did the Timothy Cole case come to the attention of the Innocence Project?

Mr. BLACKBURN: Well about a year ago, we got a letter from a guy in prison that said not, I'm innocent, but instead, I'm guilty, and explained to us that he had - that he was doing time for other crimes. That a man named Tim Cole had been tried for a crime that he had in fact committed. And we followed up on it.

COX: What has been done since then? And what still needs to be done to achieve a formal exoneration from the state of Texas for Timothy Cole?

Mr. BLACKBURN: Well there's an enormous amount. The first problem is that the court system in Texas is addicted to convictions and not very up on exonerations. We have created a very political system here in which egos are involved, politics are involved, and it's very, very difficult for judges and prosecutors to ever admit that they've convicted innocent people.

COX: Do you have...

Mr. BLACKBURN: Because of that, we are running into a lot of obstacles.

COX: Do you have to have what would amount to another trial or - explain to the listeners what precisely has to be done to have the record changed?

Mr. BLACKBURN: Sure. We've found an old procedure in Texas law called the court of inquiry, which seems to fit perfectly this situation. Under this procedure, we can go to court and ask for a full hearing into the issue of who's guilty of this crime, what went wrong in the case, and everything that happened in between. We think that that's not only something that we have a right to and something that would be good under the law, but we think that's the only way we're ever going to be able to examine what really happened in this case and hopefully prevent this from occurring in the future.

COX: In order for that to happen - this court of inquiry, who has to approve it?

Mr. BLACKBURN: We have to find a district judge somewhere in Texas that has got the guts to stand up and say that the system was wrong. That it did wrong not only to Tim Cole and his family, but also to the original victim in this case, and to begin to make those conclusions about what went wrong. Now we're hopeful that we're going to be able to get that done. We tried in Lubbock County. Frankly, we weren't surprised when the Lubbock authorities turned us down. The prosecutor that prosecuted this case and that (unintelligible) Timothy Cole is now a judge there. None of them want to say - none of them want to upset the good old boy club that's currently in existence in Lubbock County.

So now we're taking our case to Austin. We believe that the district judges there, especially given the fact that it's the state capital, may be more inclined to do the right thing and more inclined to give us the hearing that we desperately need to clear his name for once and for all.

COX: We should let our audience know that we here at News & Notes did ask the Lubbock County district attorney about the court of inquiry process that you make reference to. Matthew Powell (ph), the Lubbock D.A., said, and this is a quote, "this is a unique situation and usually there is a very specific procedure. This has never been done before," end quote. When asked further whether his office opposed the inquiry and why, Powell said it was a decision of the judge and not of the D.A. Anything further, he said, quote, "you'll have to ask the judge about that." My question to you is, is the D.A. joining you in this effort to try and get a court inquiry set up?

Mr. BLACKBURN: No. That's buck passing of the worst kind and it's what we've gotten used to in this case. As you'll hear from other folks, the D.A.'s office has been reluctant to step up and do the right thing. We're glad that they did the DNA testing. We're not happy that they didn't involve us in the process. We're not happy that they're not doing what at least one district attorney in Texas, Craig Watkins (ph) in Dallas has been willing to do. And that's to try and correct some of these injustices. But I've got to tell you, this is very, very typical behavior and it's the sort of thing that my project has begun to expect from virtually every other D.A. in the state. They just don't want to admit that their system does wrong.

COX: Where is the person who confessed to the crime now?

Mr. BLACKBURN: He's sitting in prison in a little town called Snyder, Texas, about 120 miles south of Lubbock. COX: Jeff, I want to ask you to hold on for a moment because we're going to bring in to the conversation two women who are intimately involved with the Timothy Cole case. The first is Ruby Session. She is the mother of the late Timothy Cole. And the second is Michele Mallin. She is the rape victim whose testimony helped to convict Cole back in 1986. Ruby, Michele, thank you both for coming on News & Notes.

Ms. MICHELE MALLIN (Rape Victim): Thanks for having me.

Ms. RUBY SESSION (Timothy Cole's Mother): Thank you.

COX: Ruby, let me begin with you. Timothy was your oldest son. Tell us what it was like visiting him in prison all of those years believing that he was, in fact, an innocent man.

Ms. SESSION: We always knew he was innocent. Timothy knew that too. It was very, very hard to go to see him and then leave, coming back to Ft. Worth knowing that there were some things going on that were not conducive for his health.

COX: What did - how did he handle it? What did he say to you when you would go visit?

Ms. SESSION: He - his main thing was, I want to be exonerated and totally vindicated from this crime. And he couldn't understand why Michele picked him out. He didn't live to hear from her and from Jeff and all those others who are working on the case as to how she could have picked his picture out. That's another story, because in the lineup, the pictures taken from police files - Tim's picture was a Polaroid picture, and the description of the rapist from Michele did not match my son in any shape, form or fashion.

COX: Well let me stop there to bring Michele in to the conversation. And Michele, we appreciate your coming on. I'd like to start with this. You were the victim of a brutal rape on March 24th, 1985, in a Lubbock, Texas church parking lot. In all those years since the trail, did you ever doubt that your identification of Timothy Cole was accurate?

Ms. MALLIN: I never doubted it. I honestly was shocked when I found out on May 21st of this year when George Watson of the Lubbock D.A.'s office contacted me. I mean, I thought he was getting out of prison. I didn't know he'd died nine years ago. No I never had any doubt. And in my mind, I really honestly believed that I had - that they had found the right guy. I thought that, you know, they didn't tell me their evidence. I just assumed they had forensic evidence and it looked to me like - I really honestly believed he was the one.

COX: Have you been able...

Ms. MALLIN: I never doubted it.

COX: Have you been able to ask yourself how, even though you were convinced that he was the one, that it turns out, if the DNA evidence is correct, that he, in fact was not the one?

Ms. MALLIN: Have I what, now?

COX: Have you ever been able to figure out, or ask yourself how you could've come to the wrong conclusion?

Ms. MALLIN: I've asked myself that a thousand times. Ever since I got that phone call in May. I mean, I have no idea. I mean, unless I was just so traumatized or something. I don't know, I really don't. I really honestly believed that it looked like him to me. It really did, and I thought that was him.

COX: Now Ruby, tell us about the day that you found out about the DNA results.

Ms. SESSION: Jeff Blackburn called one of my sons and I about eight o'clock on a Friday night and said that the DNA had come back, and it was this guy in Snyder, Texas. And we celebrated a little bit, but we were cautiously optimistic until the final results came in. So it's bittersweet. But we're just hoping that a judge somewhere here in the state will let Jeff have this hearing.

COX: Now, we're going to ask both of you to hold on. In a moment we're going to take a break, and I want to talk about the fact that you met - you, Michele, and you, Ruby, for the first time, last Friday as I understand it. Is that right?

Ms. MALLIN: Yes.


COX: All right. So we're going to talk about what that meeting was like. Jeff, you're still there?

Mr. JEFF BLACKBURN (Chief Counsel, The Innocence Project of Texas): I sure am.

COX: Really quickly. Is there a time frame at all that's involved in moving this forward?

Mr. BLACKBURN: Well, it's going to be up to the judge. The best we can do is bring it to the attention of the courts now in Travis County. We plan on filing this petition on Thursday. And after that, it's going to be up to the system itself to see if they're willing to rectify this horrible, horrible, tragic error.

COX: If you are successful, it would be, would it not, the first time in the history of the state of Texas that someone who has been convicted of a crime was exonerated posthumously?

Mr. BLACKBURN: That's correct.

COX: All right. Hold on, like we said. We're going to come back and continue this conversation with both of you, with all three of you. We're talking with Jeff from the Innocence Project, we're talking with Ruby Session, the mother of the late Timothy Cole. We're also speaking with Michele Mallin, who was the rape victim whose testimony sent him to prison back in 1986. This is News & Notes, we'll be right back.

(Soundbite of music)

COX: This is News & Notes, I'm Tony Cox. We're back with Jeff Blackburn, chief counsel for the Innocence Project of Texas. He is leading the effort to posthumously exonerate Timothy Cole. Ruby Session is Cole's mother, and Michele Mallin is the rape victim whose testimony sent Cole to prison. She is now helping to clear his name. Welcome back.

Let me begin with you, Michele and Ruby. This is a tragic situation and there are victims all around. But for the mother of a man who died in prison and who was convicted wrongly, and for a victim of rape who was a part of sending that person to prison, for the two of you to meet for the first time face to face just last Friday, must have been an emotional moment. Ruby, was it?

Ms. SESSION: It was. I had talked to her about a month ago on a telephone, and I was anxious to see her. I have no animosity now, never have, did the family have any animosity towards Michele. We said she had been raped. But we all knew that it was not Timothy. She had our sympathy, but in meeting her last Friday, she had apprehension saying that she, in her mind all the way over from the airport, that she thought how we might dislike her, hate her even. And so I tried to dispel all those fears by letting her know that she was victimized just as my son was. And we never had any animosity toward her. So I tried to reassure her that we never said - never doubted that those things did not happen to her. But the only thing was that we knew for certain is that my son did not do it, because of the way the arrest went down and then the way the trial was conducted, so...

COX: Let me bring Michele in. Michele, how apprehensive were you about meeting Ruby and the family?

Ms. MALLIN: Well, I was just kind of - I mean, when I first found out about it on May 21st, I mean, I just, my first reaction was, oh my gosh, his family probably hates me. That's was just what I thought. And I thought, you know, they're never - I mean, I never dreamed they would want to talk to me or see me or anything, and then I get this, you know, email from Sarah Hagey (ph) from the - she sent it to my cousin in Abernathy, and then my cousin forwarded it to my mom, and my mom forwarded it to me saying that the family, you know - she sent me in the email, Corey ( ph), the youngest brother's cell phone number, and saying that they would love to talk to me and all this stuff. And I was just shocked. I never dreamed that. So I mean, because I just assumed they probably just couldn't stand me. And, you know, as they had every right to in my eyes. And I just, I mean I was very apprehensive on Friday. I was scared that - you know, I was just nervous.

COX: Where did this meeting take place and how long did it last? Michele?

Ms. MALLIN: It was at Corey's house. Timothy's youngest brother's.

COX: How long were you there?

Ms. MALLIN: I don't know. I guess an hour-and-a-half. I don't know, it seemed like it was a couple of hours, an hour-and-a-half to two hours. I don't know.

COX: So when you left - when she left, let me ask you Ruby, did you feel that you had made an important connection that would help Timothy?

Ms. SESSION: I was just happy to know that she would come and meet us. The most important thing in that meeting was for us to let her know that we had no hard feelings toward her, because we had - she had nothing to ask our forgiveness for, and I was just happy that the story was out. But before I finish, I'll just say this. We took Michele to the cemetery so that she could see where Timothy is buried and let her have some moments to say whatever she had to say to him along the lines of the things that she had said to us when we first met.

COX: Our time is running short and let me bring you back in, Jeff, for one last comment, and it's this. When you have the victim who is now recanting and who is supporting the efforts to have Timothy Cole exonerated - we have less than a minute for your answer - is that not enough to get the court of inquiry that you're looking for?

Mr. BLACKBURN: Well it should be. We've already found moral redemption, now we need legal redemption.

COX: And you're hoping that that's going to happen?

Mr. BLACKBURN: I'm still enough of a believer in the court system, even in Texas, to think that somewhere, someplace, there is a judge who's willing to say what's right is right and what's wrong is wrong.

COX: Michele, thank you very much for coming on. We appreciate you sharing your story with us.

Ms. MALLIN: Oh, you're very welcome.

COX: And the same to you Ruby. Thank you for coming on as well. It's a fascinating story that you all have to tell.

CHIDEYA: That was NPR's Tony Cox speaking to Jeff Blackburn, chief counsel for the Innocence Project of Texas. We also heard from Ruby Session and Michele Mallin. Ms. Session is Timothy Cole's mother. Michele Mallin is the rape survivor whose testimony sent Timothy Cole to prison. She's now helping with the formal efforts to have his name cleared. The Innocence Project of Texas will present the case in February to the 299th District Court. The foundation funding this legal challenge lost most of its assets in the Bernie Madoff investment scandal.

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