Convicted Of Rape, Died In Prison, Then Cleared

[Aaron]

http://www.cnn.com/2009/CRIME/02/06/tex ... index.html

Texan who died in prison cleared of rape conviction

(CNN) -- A Texas district court judge Friday reversed the conviction of a man who died in prison nearly a decade ago, almost two decades into a prison sentence for a rape he swore he did not commit, CNN affiliate KXAN reported.

Timothy Cole was convicted and sentenced to 25 years in prison for the 1985 rape of 20-year-old Michele Mallin. He maintained his innocence, but it was not confirmed by DNA until years after his 1999 death, when another inmate confessed to the rape.

In the courtroom of Judge Charlie Baird Friday afternoon, Mallin, now 44, faced Jerry Johnson, the man who confessed to the rape.

"What you did to me, you had no right to do," she told him angrily, according to Austin's KXAN. "You've got no right to do that to any woman. I am the one with the power now, buddy."

Cole's family also addressed Johnson.

"He'll never have the chance to have children," Cole's mother, Ruby Session, said. "I want you to know he was a fine young man."

Johnson has been in prison since 1985 on two convictions for aggravated sexual assault, according to the Texas Department of Corrections. He was given a life sentence for the rape of a 15-year-old girl, and a jury later tacked on a 99-year sentence for another rape, according to the Lubbock, Texas, Avalanche-Journal. He cannot be charged with the Mallin case, as the statute of limitations has expired.

Johnson also spoke Friday.

"I am responsible," he said. "I say I am truly sorry."

Then a student at Texas Tech University in Lubbock, Mallin was walking to her car, intending to move it to another parking lot, when a man approached her asking about jumper cables, she said. In a matter of seconds, he put her in a choke hold and held a knife to her neck. He forced himself into her car and drove her to the outskirts of town, where he raped her.

The next day, police investigators showed Mallin pictures of possible suspects. She chose a picture of Cole and said he was her attacker. She later identified him in a physical lineup, according to the Innocence Project of Texas.

"I was positive," she said. "I really thought it was him."

But there was one detail: Mallin told police her attacker was a smoker. "He was smoking the entire time."

Cole, who suffered from severe asthma, "was never a smoker," said his brother, Cory Session. "He took daily medications [for asthma] when he was younger."

"He was the sacrificial lamb. To them, my brother was the Tech rapist, there was no backtracking. It was the trial of the decade for Lubbock."

The "Tech rapist" attacked four women other than Mallin -- abducting them in parking lots near campus and driving them to a vacant location, where he would rape them and flee on foot, according to the Innocence Project of Texas. The rapist "terrorized" the Texas Tech campus in the mid-1980s, the organization said.

Cole, like Mallin, was a student at Texas Tech. He had finished two years of college previously and was returning to school after spending two years in the Army, his brother said.

But his dreams of getting married and having children never materialized. He was arrested and charged with Mallin's rape, declining a plea bargain offer that would have put him on probation. A jury convicted him and imposed a 25-year sentence.

That night, "he hugged my mother and he said, 'Mother, why these people lie on me, why they do this to me?'" Cole's brother Reggie Session recounted for the Avalanche-Journal, which published a three-part series on the case in June.

"He said, 'They know I ain't done nothing to that girl. I don't even know that girl. Why they do this to me, mother?' ... He cried in my mother's arms on the floor."

Later, while in prison, Cole rejected an offer of parole that would have required him to admit guilt. "His greatest wish was to be exonerated and completely vindicated," his mother, Ruby Session, told KXAN.

But the asthma that plagued Cole throughout his life brought about his death on December 2, 1999. The cause was determined to be heart complications due to his asthmatic condition. He was 39.

It was 2007 when a letter addressed to Cole arrived at his family's home, written by Johnson.

"You may recall my name from your 1986 rape trial in Lubbock," says the letter, dated May 11, 2007. "Your Lubbock attorney, Mike Brown, tried to show I committed the rape.

"I have been trying to locate you since 1995 to tell you I wish to confess I did in fact commit the rape Lubbock wrongly convicted you of. It is very possible that through a written confession from me and DNA testing, you can finally have your name cleared of the rape ... if this letter reaches you, please contact me by writing so that we can arrange to take the steps to get the process started. Whatever it takes, I will do it."

Johnson did not know Cole had died. In fact, according to the Avalanche-Journal, he had been writing to court officials for years to confess to the rape, but got nowhere.

Upon finding out that Cole was dead, Johnson wrote he "cried and felt double guilty, even though I know the system's at fault," according to the Avalanche-Journal.

"A day later, I am still bothered, terribly, by the death revelation. Because, not knowing Mr. Cole at all, I wonder if the wrongful incarceration contributed to his death."

The Innocence Project became involved after Cole's family received Johnson's letter. DNA tests confirmed that Johnson was Mallin's attacker. Now, Cole's family hopes the court hearing will be the final step in clearing his name.

Mallin is helping them. "I was very traumatized," she said. "I was scared for my life. I tried my hardest to remember what he looked like.

"I'm trying to get his name cleared. It's the right thing to do."

Cory Session said, "We don't blame Michele. She's very gracious."

Just take a wild guess what colour this guy was.

[Tsukiyumi]

When the prosecution is desperate to make a conviction, it doesn't matter much what your color is, as long as you vaguely match the description. This poor bastard's color only mattered because the real rapist was apparently the same color.

I don't know why modern DNA testing isn't applied to hundreds of older cases. Especially ones where "horribly traumatized victim visually identified suspect" was the key evidence.

[IanKennedy]

It's just a good job he didn't get the death penalty. How anyone can support it with things like this happening is beyond me.

[Aaron]

When the prosecution is desperate to make a conviction, it doesn't matter much what your color is, as long as you vaguely match the description. This poor b*****d's color only mattered because the real rapist was apparently the same color.

I don't know why modern DNA testing isn't applied to hundreds of older cases. Especially ones where "horribly traumatized victim visually identified suspect" was the key evidence.

I like the bit where the guy had severe asthma but her rapist was a smoker. Hmm....

[Tsukiyumi]

It's just a good job he didn't get the death penalty. How anyone can support it with things like this happening is beyond me.

I support the concept of the death penalty, but you are right that cases like this prove the need to drastically modify the entire justice system. Even I'd call for a moratorium on executions until we can effectively switch to an "only when absolutely sure" policy.

[Lt. Staplic]

to be honest, my clue he was black wasn't the fact that he was convicted of rape, but the dialoge recorded, he's missing some key parts of the sencence there.

[IanKennedy]

It's just a good job he didn't get the death penalty. How anyone can support it with things like this happening is beyond me.

I support the concept of the death penalty, but you are right that cases like this prove the need to drastically modify the entire justice system. Even I'd call for a moratorium on executions until we can effectively switch to an "only when absolutely sure" policy.

Unless you are going to invite the Vulcans in to do mind melds you can never be absolutely sure.

[Tsukiyumi]

It's just a good job he didn't get the death penalty. How anyone can support it with things like this happening is beyond me.

I support the concept of the death penalty, but you are right that cases like this prove the need to drastically modify the entire justice system. Even I'd call for a moratorium on executions until we can effectively switch to an "only when absolutely sure" policy.

Unless you are going to invite the Vulcans in to do mind melds you can never be absolutely sure.

True.

I should say "almost completely sure". 99.5% accuracy would be close enough for me.

[SteveK]

True.

I should say "almost completely sure". 99.5% accuracy would be close enough for me.

So 5 wrongly executed people out of a 1,000 is ok?

[Lt. Staplic]

on average...technically the law of large numbers would have to take into account all the wrong executions in the past as well to give us that 5/1000 number.

[Capt. Jethro]

There is a gym I go to back home and there is the guy, Terry, who does independent film work. His background is back in Hollywood and has worked on some big films. Anyway there is a man in Savannah, GA who has been falsely accused of a murder and has been sentenced to die. Whenever I see Terry he'll give me an update on this situation. It makes me wonder sometimes who is actually telling the truth.

[Lt. Staplic]

why do you think he was wrongly accused if he was sentenced to death?

[Capt. Jethro]

why do you think he was wrongly accused if he was sentenced to death?

From what Terry has told me is that a police officer was shot and they pinned it on the guy currently in jail. However, all the witnesses except one, have recanted their story. The thing is that the local prosecutor is wanting to get the execution underway, even with all of the controversy.

It's been a few months since Terry and I have spoke about it. But the one thing that sticks into my mind is that when people hear of someone being murdered, especially a police officer, the suspect is automatically guilty. I have been guilty of that outlook at times. But when I was told the rest of the story it makes you stop and think.

IMHO criminals should pay for their crimes, capital punishment included. But how many innocent people have paid for crimes they didn't commit? It's beyond me at times.

[Lt. Staplic]

I agree, the problem is that there's no way were going to get a perfect system that's run my humans.

[Nickswitz]

This is quite true, I believe that the death penalty is a viable option, but only if the person is actually guilty, like if they tell you straight out, "I did it and I'm not sorry I did it" other than that they really shouldn't be put to death because people are inaccurate, and can never be 100% sure of anything.