CRIMINAL JURISDICTION

DNA Exonerations: Improper Eyewitness Identification Procedures and Poor Police Work; A Deadly Combination

By: Houston Criminal Defense Attorney John Floyd and Paralegal Billy Sinclair

Dying in prison is a sad, tragic affair. Timothy Cole died in a Texas prison in 1999 from asthma complications. He was 39 years of age. The prison’s health care officials notified the security staff of the inmate’s death. In all likelihood, a prison guard escorted an inmate orderly to Cole’s “bunk” where his blanket and sheets were stripped from a thin plastic-covered mattress. The guard used a master key to open a commissary-purchased combination lock on a foot locker that contained Cole’s “personal belongings.” The orderly sorted through the items to separate “state-issued” property from Cole’s personal belongings (letters, legal files, photos, etc.). The state and personal items were placed in separate plastic trash bags. The meager items in those trash bags represented the sum total of a man’s life in prison.

Timothy Cole was twenty-six years old in April 1985. He was a student attending Texas Tech University in Lubbock. It was a difficult time for both the city and the university community. A serial rapist had sexually assaulted five women dating back to December 1984. The police had developed a profile of the rapist: African-American, chain smoker (Winstons being his brand of choice), wore a terry cloth shirt and jeans (and sometimes tong sandals), approached women alone as they exited their vehicles, armed with a small pocket knife during the attacks, drove the women to remote areas where he raped them in their vehicles, talked incessantly about racism at Texas Tech University, stole their money and jewelry, and fled the attack scenes on foot.

The fifth woman raped was Michele Mallin. It was March 25, 1985. The 20-year-old Tech student had pulled her ’79 Cutlass Supreme into the eastern edge of a Methodist church parking lot located across the street from the university campus. She parked there because she didn’t have a student parking pass. It was 10:00 p.m. The night temperature had turned cool. But she was comfortable in her sweat suit as she prepared to get out of her car. She was approached by an African American man wearing a yellow terry cloth shirt, jeans, and tong sandals. The medium built man had short curly hair and bulging eyes. His demeanor and appearance did not arouse any suspicion in Mallin. He asked her something about some jumper cables. She pointed to the taillights of another car, suggesting they might be able to help him.

The black man did not say anything. He stood there watching as the other vehicle pulled out of the parking lot. He then turned quickly to Mallin’s car door and yanked it open. He jumped into the vehicle, pushing the student into the passenger seat. She recovered immediately, pulling at the attacker’s curly hair and biting deep into his thumb. He cursed and pulled a knife as Mallin continued to kick at him. He grabbed her into a headlock and threatened to kill her with the knife. It was at that point when Mallin realized the attacker had a knife. She ceased resisting. The attacker drove her car slowly out of the church parking lot and headed for the outskirts of Lubbock where there were no city lights. (more…)