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Timothy B. Cole

Other Posthumous Exonerations
Timothy Brian Cole died in a Texas prison in 1999 while serving a 25-year sentence for a rape he didn't commit. Nearly a decade later, DNA evidence from the crime posthumously exonerated Cole and implicated another man as the perpetrator.

On March 24, 1985, 20-year-old Texas Tech student Michele Murray Mallin was parking her car in a church parking lot across from her dormitory in Lubbock, Texas, when an African-American man approached her and asked her to help him start his car with jumper cables. When she said she didn't have cables, the man reached in through her window and unlocked the door. The woman screamed and bit the man's thumb, but then noticed that he had a knife. Holding the knife to her throat, he forced her to lie down in the car while he moved into the driver's seat.

He drove to a vacant field outside of town, where he forced her to perform oral sex and then vaginally raped her. The perpetrator then drove the car back to Lubbock, where he took $2 in cash, a ring and a watch from the victim and left on foot. Mallin then called police and reported the attack.

Mallin, who is white, described the perpetrator to police as a young African-American man with bug-eyes, less than six feet tall and wearing a yellow shirt and sandals, but didn’t give many other details. She said the perpetrator had smoked cigarettes throughout the attack.

Police believed at the time that the attacker might have been an unknown serial rapist known at the time as the “Tech Rapist” who was suspected in four other attacks. Several officers began conducting surveillance around campus. Composite sketches based on the descriptions from the victims appeared in the Texas Tech campus newspaper.

Cole was a 24-year-old Army veteran majoring in political science at Texas Tech in 1985. On the night Mallin was raped, he had studied at home, where his brother was hosting a party attended by five other individuals.

Two weeks later, Cole went to meet a friend who worked at a pizza restaurant near the Texas Tech campus. The restaurant also was very near to the scene of Mallin's abduction. As he was leaving the restaurant, Cole spoke with a female detective in plainclothes who decided Cole resembled the composite based on Mallin’s description. The following day, a detective went to Cole’s apartment and took a Polaroid photo of him.

Detectives then showed Mallin a photo lineup including six color photographs. Cole's was the only Polaroid; the other five were standard mugshots. Cole was looking at the camera in his photo while the subjects in the five mug shots were facing to the side. According to police, Mallin was immediately sure that Cole was her attacker, saying: “That's him.”

The next day, police conducted an in-person lineup with Cole and four prisoners. Mallin again identified Cole. One of the victims from the similar December and January rapes, as well as two other women who had filed police reports about a black man acting suspiciously on campus also viewed the lineup and did not identify him. Cole was arrested and charged with the aggravated sexual assault of Mallin

Cole was tried by a jury in Lubbock. He was never charged with committing any other rapes, but he was charged with a separate attempted kidnapping of another woman. That charge was later dismissed.

Mallin identified Cole in court as the perpetrator. A forensic examiner from the Texas Department of Public Safety testified that an analyst in his lab had examined the rape kit collected from the victim at the hospital after the attack. He said the tests had determined that sperm was present on the swabs from the victim's body. Serology testing found evidence of a Type A secretor on the swabs, and the analyst told the jury that both the victim and Cole had type A blood. Mallin is a secretor, he said, meaning her blood type can be determined from bodily fluids other than blood. Cole’s secretor status was unknown.

The analyst also testified that another lab analyst had compared foreign pubic hairs collected from the victim's underwear and body during her hospital examination. He testified that the hairs had similar characteristics to Cole's pubic hair, but said the analyst conducting the tests could not reach a firm conclusion. Because there is not adequate empirical data on the frequency of various class characteristics in human hair, the analyst's assertion that hairs are similar was inherently prejudicial and lacked probative value.

Cole's attorney presented an alibi defense – that Cole was studying at home, where his brother was drinking with several friends, on the night of the crime. His brother and friends testified that Cole had been at the apartment at the time of the attack. Cole also presented evidence that he had severe asthma and did not smoke cigarettes.

Cole's attorney attempted to enter evidence that similar attacks had continued to occur in the months after Cole's arrest, but the judge refused to allow most mentions of the uncharged crimes before the jury. Cole also attempted to present evidence that a very similar attack had occurred one month before the assault for which Cole was charged, and that fingerprints from the victim's car in that case did not match Cole's fingerprints. The judge also did not allow this evidence before the jury.

After six hours of deliberation, the jury convicted Cole. The next day, he was sentenced to 25 years in prison.

Cole's initial appeals were denied. In 1995, after the statute of limitations on the 1985 rape had expired, a Texas prisoner named Jerry Wayne Johnson wrote to judges and the trial prosecutor in Lubbock County as well as Cole's defense lawyer, Mike Brown, saying that he had committed a rape for which one of Brown's clients had been convicted. Johnson was serving a life plus 99-year sentence after convictions for two sexual assaults with similar characteristics to the attack on Mallin.

Johnson's letters were not acknowledged. Cole died in prison of an asthma attack in 1999 without ever learning that Johnson was attempting to confess to the crime. The year after Cole died, Johnson wrote again to a supervising judge. This time, the case was moved to a different judge and rejected without comment. Eventually, in May 2007, Johnson's most recent confession letter reached the Innocence Project of Texas and Cole’s family. Attorneys at the Innocence Project of Texas sought posthumous DNA testing in the case and Lubbock prosecutors cooperated. DNA testing conducted on semen from the crime scene excluded Cole and implicated Johnson as the perpetrator. Cole was cleared by DNA tests in 2008, and during a two-day hearing in February 2009, Johnson again confessed to the crime before a judge, Cole’s family, and the victim, who testified under her married name, Michele Mallin.

The New York-based Innocence Project joined with the Innocence Project of Texas as co-counsel on the case, and a Texas judge officially exonerated Cole in a ruling issued on April 7, 2009, 24 years to the date of Cole's conversation with the plainclothes detective outside the pizza restaurant. Texas Gov. Rick Perry pardoned Cole on March 1, 2010.

Soon after, the state of Texas passed the Timothy Cole Act, increasing compensation paid to exonerees to $80,000 per year served, expanding services offered to the exonerated after their release and adding compensation for the family of an exoneree if cleared after death. The state also created the Timothy Cole Advisory Panel on Wrongful Convictions in 2009 to study the prevention of wrongful convictions across the state.

The victim in the case, Michele Mallin, speaks and writes about the case to raise awareness about misidentifications and wrongful convictions. “I was positive at the time that it was him,” she said at a speech at the Georgetown University Law Center. “I was shocked when I found out it wasn't him. I joined Tim’s family in working to exonerate him because it was the right thing to do. Timothy didn’t deserve what he got.”

Family members received $1,060,000 in state compensation.

In 2014, a 13-foot bronze statue of Cole was dedicated in Lubbock, depicting a young Tim Cole looking toward the Texas Tech University Law School. In his hands are two books. The binding of one states: “Lest We Forget.” The base of the sculpture reads “And Justice For All.”

In March 2015, Texas Tech University System regents voted to posthumously award Cole an honorary degree in law and social justice.

–The Innocence Project and Maurice Possley

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Posting Date:  Before June 2012
Last Updated: 3/10/2015
Most Serious Crime:Sexual Assault
Additional Convictions:
Reported Crime Date:1985
Sentence:25 years
Age at the date of reported crime:24
Contributing Factors:Mistaken Witness ID, False or Misleading Forensic Evidence
Did DNA evidence contribute to the exoneration?:Yes