At the second day of the hearing on Tim Cole's innocence, State District Judge Charlie Baird recognized Cole's wrongful conviction and innocence.
In continuing coverage, Austin American-Statesman reporter Steven Kreytak had, "Judge clears name of late convict in rape," in the Saturday paper.
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.
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.
"Exoneration case may lead to criminal justice system reforms," is Max Baker's report in the Saturday Fort Worth Star-Telegram.
State Sen. Rodney Ellis, D-Houston, has already introduced several criminal justice reform bills including one to increase the accuracy and reliability of eyewitness identification procedures.
Attorneys associated with the Innocence Project of Texas said that 82 percent of the DNA exonerations in Texas involved convictions that were largely or exclusively the result of incorrect witness identification and that 95 percent of those in Dallas were the result of faulty procedures.
But even with those startling statistics, Jeff Blackburn, chief counsel of the Innocence Project of Texas, and others said that 88 percent of the police departments in the state don’t have eyewitness identification policies.
"It’s going to be up to the Legislature to restore justice in the criminal justice system," Blackburn said.
Ellis’ legislation is promoting four procedural changes:
Adopt what is known as a "double blind" lineup where the person administering the photo or live lineups does not know which person is the potential suspect, preventing the witness from being encouraged to pick someone.
Give the witness instructions so that they know the actual perpetrator may not be in the lineup.
Get the witness to give a statement after identification is made to determine how sure they were about their choice.
Require that individuals in the lineup resemble the witness’s description with only one suspect in a lineup along with five or more "fillers."
"Cole cleared of '85 rape," is Elliott Blackburn's report from the Saturday Lubbock Avalanche-Journal.
A district judge Friday declared the record of a man wrongfully convicted in Lubbock more than 20 years ago clean and cleared, delivering legal salve to a family long-tormented by their eldest son's sentence and later death in prison.
But questions remained just hours after the ruling on how the order marking the state's first posthumous exoneration could stand.
DNA testing ordered by the Lubbock County Criminal District Attorney's Office last year proved Timothy Brian Cole innocent of the rape of a Texas Tech student in 1985. He died in prison in 1999 while serving the 25-year sentence Lubbock jurors ordered.
Sharp criticism of the Lubbock district attorney's office, past and present, continued Friday. Baird and Innocence Project attorneys Blackburn and Barry Scheck lambasted Lubbock prosecutors' absence and lack of cooperation with the two days of hearings.
Scheck, who has worked numerous similar cases for living convicted men, considered the behavior "perverse"; Baird said the case had changed from an aggravated sexual assault to a robbery of Tim Cole's family of their brother and son.
"I've been doing this for more than 30 years and this is the saddest case that I've ever seen," Baird said, praising Cole's integrity for refusing to claim he did the crime so he could receive a lesser sentence. "I'm so sorry that the powers that be in Lubbock, Texas, do not have one ounce of that integrity."
Blackburn saved his harshest words for after the hearing, and for Judge Jim Bob Darnell, who prosecuted the case in 1986. Residents had been duped into believing in an infallible system they could not question, he said.
"I hope this case begins to open their eyes to just how corrupt and wrong and unlawful this whole system is," Blackburn said. "They should be ashamed of Judge Darnell, who should not be allowed to go to that courthouse. We deserve people with integrity on the bench instead of cowards."
But the truth was far simpler, and more frustrating, Lubbock County Criminal District Attorney Matt Powell said in a Friday night telephone interview.
He bristled at accusations that he had dismissed problems with the original case as the victim's fault. Powell was not at the hearing because he didn't believe it could accomplish what the family sought, he said.
Cole needed to be cleared, Powell said - he wouldn't have run the DNA tests if he did not believe that. No proper venue to achieve that existed, though, he said. The Legislature must create one.
It was not clear Friday evening what precedent would be cited to support Baird's reading of the Texas Constitution. He relied on language that said remedy for cruel, unusual or excessive punishment was open to all courts.
Elliott Blackburn also wrote, "After Cole cleared, family fights on," for the Sunday Avalanche-Journal.
DNA testing requested by the Lubbock County Criminal District Attorney's Office almost a year before proved that Cole had not abducted a Texas Tech sophomore from a church parking lot and raped her in an empty lot outside of town.
Texas has a process to free and exonerate wrongfully convicted inmates, but state law does not describe how to recognize the innocence of the dead. Attorneys for the state and national chapters of the Innocence Project, a nonprofit organization that works to exonerate wrongfully convicted prisoners, sought a court of inquiry hearing on Cole's case.
The court of inquiry - essentially a grand jury by judge - allowed the airing of Tim's case and a legal finding. Lubbock courts rejected the request in August. Baird accepted the case a few months later and preliminary hearings on the matter began Thursday.
"I read that and thought, 'This guy's entitled to an exoneration," Baird said after the hearing. "It didn't matter that he was deceased."
But Cole attorney Jeff Blackburn dropped his pursuit of a full court of inquiry Friday afternoon. Baird cited protections in the Texas Constitution against cruel and unusual punishment and that all courts were open to remedy such actions to declare after two days of hearings that Cole was exonerated and his record cleared.
Experts contacted Saturday stressed they could not imagine anyone opposing Cole's innocence. But they also did not know how much weight the ruling carried.
Earlier coverage begins with this post.