Statesman: Compensation for unjust convictions in Texas

The following is the Austin American-Statesman's editorial in support of the Timothy Cole Act, which passed the House last week and is waiting for the Senate's vote.

Compensation for unjust convictions in Texas
Timothy Cole Act would honor signature victim of wrongful conviction who died
in prison.

It's rightly being named the Timothy Cole Act. And if it's passed by the
Legislature, which it should be, it will be the influence of Cole — who died a
decade ago while in prison — that gave it the momentum to become law.

Under the measure, compensation for people who were wrongfully imprisoned
would increase to a lump sum payment of $80,000 per year of incarceration, up
from the current $50,000. It would direct payments to the next of kin in cases
in which those who were wrongfully jailed die before they were exonerated.

This is a good bill that the House passed last week. Now it's up to the Texas
Senate to follow suit, and the chances look good, according to Senate
sponsors, Robert Duncan, R-Lubbock, and Rodney Ellis, D-Houston. The bill
could come up for a vote this week.

The legislation is likely to require a constitutional amendment to pardon the
deceased Cole, who spent about 14 years in prison for a crime he did not
commit. The Cole case drew national attention earlier this year, being called
Texas' first posthumous DNA exoneration.

While a student at Texas Tech University in 1985, Cole was convicted of raping
fellow student Michele Mallin. Police zeroed in on Cole, though he did not fit
the profile of the person who had raped several women in the Lubbock area.
Mallin had identified him as her attacker in a rigged lineup, underscoring
problems with eyewitness identification procedures. But this year she joined
Cole's family in seeking post-mortem exoneration for him after DNA evidence
cleared Cole and fingered another person, who ultimately confessed to the
crime. Tragically, it was too late for Cole, who died of asthma behind bars
while serving a 25-year sentence.

The legislation in his name would provide financial compensation to Cole's
mother, Ruby Session, who never gave up pursuing her son's innocence. In
addition to lump sum payments, the bill offers monthly annuity payments for
life, health insurance and 120 hours of tuition courses at a community college
or state university.

If that sounds expensive, consider that it could actually save the state money
by preventing lawsuits and avoiding large settlements and legal fees. Those
who are awarded benefits would forfeit their rights to sue the state. And the
legislation would not reward people who were exonerated but went on to commit
other crimes. They would not qualify for benefits.

The best reason to pass the legislation is because it is the right thing to
do. No one can give back the time or erase the miseries endured in prison. And
Texas leads the nation in the number of people, 38, who have been exonerated
by DNA testing. Perhaps attaching a cost to wrongful convictions will help
improve the legal system.

In any case, Texas owes compensation in the way of money and benefits to those
whose lives were unjustly disrupted and destroyed by guilty verdicts and
prison. That is the least we can do.

Timothy Cole Exonerated of 1985 Rape

Last week Judge Charlie Baird exonerated Timothy Cole of the 1985 Lubbock rape that sent him to prison. But sadly he was not present during the court hearing to celebrate his exoneration. Because he died in prison 10 years ago. This is the first posthumous exoneration in Texas. Steven Kreytak of Austin American-Statesman reports

In what lawyers in the case say is a first-of-its-kind posthumous DNA exoneration, a judge in Travis County on Friday announced "to a 100 percent moral, factual and legal certainty" that Timothy Cole did not commit the 1985 Lubbock rape that sent him to prison, where he died in 1999. State District Judge Charlie Baird's announcement brought tears and exclamations of thanks from Cole's family. After court adjourned, Baird came down from the bench and embraced some of them.

"We had to come to Travis County, but we got justice," Cole's brother Cory Session said outside court.

Cole's family members joined their lawyers with the Innocence Project of Texas on Friday morning in calling on the Legislature to pass a bill that would standardize the way police conduct photographic lineups to eliminate any potential police bias. They say they blame Lubbock police for influencing Michele Mallin's incorrect identification of Cole as the man who raped her. Mallin joined Cole's family in petitioning Baird to clear Cole's name after she learned last year that another man had confessed to the crime and that DNA tests linked him to the case. A Lubbock court denied their request.

"The worst conclusion anyone can draw from the Timothy Cole case is this shows the court system works," said Jeff Blackburn , an Amarillo lawyer who is the chief Innocence Project lawyer in the case. "This shows our court system does not work."

During the hearing Friday, convicted rapist Jerry Johnson admitted that he raped Mallin in 1985.

"It's been on my heart to express my sincerest sorrow and regret and ask to be forgiven," said Johnson, who is serving life in prison for two other 1985 rapes in Lubbock County.

After Johnson spoke, Baird asked Mallin and Cole's mother, Ruby Session, whether they wanted to address him.

Mallin stood at a courtroom table and scolded Johnson.

"I love knowing that you are going to be spending the rest of your life in prison," Mallin said. "What you did to me is something you should never do to any woman in any time and any place. I am the one with the power right now, buddy."

Then Session, in sharp contrast to Mallin's remarks, spoke to Johnson calmly and slowly.

"Timothy, all he wanted was exoneration and full vindication," she said.

"I want you to know he was a fine young man. I miss his smile, I miss all the hugs and I miss those salutations in those letters I was getting from him. 'Just a few lines for my favorite young lady.' "

Cole, then a 26-year-old Texas Tech student, became a suspect in a string of rapes near the campus when he approached an undercover police officer who was hoping to draw the rapist on a sting. The women who had been raped, including Mallin, were abducted at knife point while leaving or entering their own vehicles. Cole approached the female officer in his own vehicle, flirted with her and gave his name. Mike Ware, a prosecutor in Dallas who testified about his review of the case, said that Cole never should have become a suspect.

Police took a color Polaroid picture of Cole and put it next to five black-and-white photos in a lineup. Mallin, who testified Thursday, said that she picked Cole and said "I think that's him." When she was told she had to be positive, she said she was, she recalled.

Iowa State University Professor Gary Wells , an expert in eyewitness identification, said that the difference in Cole's photo from the others and the comment about being positive encouraged Mallin's answer.

Senate Bill 117, sponsored by Sen. Rodney Ellis, D-Houston, would require that an officer who administers a lineup not be familiar with the case and not know which lineup subject is the suspect. Under the bill, police would also have to record the event.

A handful of states have adopted similar standards.

Detective James Mason, an Austin police spokesman, said a case detective usually conducts lineups. He said there is no departmental policy on lineups, although it is understood that the detective should not display any bias.

skreytak@statesman.com; 912-2946