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.

“I was a virgin,” Mallin was quoted as saying in a recent Austin American-Statesman article about the case. “I had never planned on having sex before marriage. I begged and pleaded for him not to do that to me.”

 

But he did. And Mallin reported the sexual assault to Lubbock police.

 

Frustrated by their inability to apprehend the serial rapist, investigators working the case sent a young female undercover officer into the university area two weeks after the Mallin assault in hopes of luring the assailant into another attack. Investigators maintained a nearby surveillance. The undercover officer, Rosana Bagby, walked into a popular Mr. Gatti’s pizzeria. Timothy Brian Cole was sitting in the restaurant. He had been sitting there sometime without food or drink idling away the evening watching the student traffic pass by. He was sharply dressed in a beige sports coat and a tweed button down hat. He had been Lubbock only three months, living with his brother who had an apartment a couple blocks from Mr. Gatti’s.

 

Bagby drank a Dr. Pepper several tables from Cole’s table before getting up and leaving. Cole followed her out of the pizzeria. He went straight to his vehicle. He pulled up alongside of Bagby as she walked down the street. He rolled down his window and spoke to her. Even though it was 45 degrees, Bagby wore a light jacket and shorts. She walked up to Cole’s car window where they traded names, made small talked, and shook hands. She turned down Cole’s offer to take her to a nearby bar-and-grill for a drink. She also refused his request for her telephone number and declined his offer to give her a ride. Cole turned out to be the only man who approached Bagby during the undercover operation.

 

Lubbock investigators liked Cole as a “suspect.” They ran his name and found a previous robbery report linked to him several weeks earlier. In that case Cole had flagged down a police vehicle outside a pool hall in a rough part of town. He told the officers he had been robbed by two men. The officers noticed he had a weapon that appeared to have been fired and that he had marijuana in his possession. He was arrested on misdemeanor drug and weapon charges. The arresting officer was happened to be Rosana Bagby.

 

This misdemeanor incident was apparently sufficient probable cause for the investigators – even though Cole’s actions did not fit the serial rapist profile. He did not smoke and he drove his own vehicle. Apparently, being black and willing to approach a provocatively-dressed white woman with the offer of a ride and a drink was sufficient probable cause for the investigators working the case. Two days after Cole’s pick-up attempt with Bagby the investigators put a color Polaroid photograph of Cole obtained from his misdemeanor arrest file into a folder with five much smaller mug shots of other men, took the folder to the lobby of Mallin’s dorm, and showed it to her. She identified Cole as her attacker.

 

Timothy Cole was immediately arrested. He was placed in a physical lineup at the police station with four other men. The five rape victims were called view the lineup. Two of the victims could not identify Cole, or anyone else as their attacker. A third victim watched Cole for several minutes before saying she was not sure. A fourth victim wavered on Cole before finally identifying another suspect the police had arrested earlier. Mallin then entered the lineup room. She had barely reached the glass before pointing to Cole as her attacker.

 

“I walked into the room and I immediately saw the person who raped me,” she swore in an affidavit provided to her by the police shortly after the lineup. “I am positive of my identification and there is no doubt in my mind.”

 

The police did not tell Mallin that the other rape victims had not identified Cole as their attacker; that Cole was asthmatic and a non-smoker; that he was driving his own vehicle when he propositioned the undercover officer; or that he did not make any attempt to force the officer to go with him after she refused his ride offer.

 

A subsequent search of the apartment shared by the Cole brothers produced a yellow shirt that did not fit the victims’ description of the terry cloth shirt worn by their attacker. The shirt didn’t even fit Cole. The investigators also took several pocket knives and a ring from the apartment. None of these items could be linked to the crime. Similarly, forensic evidence – blood and hair – tested only a week before Cole’s September 1986 trial could not link him to the crime, nor could it rule him it out.

 

There was only Mallin’s identification, and she was “unshakable in her insistence” that Cole was the man who raped her, as the Avalanche-Journal reported.

 

“Is identification a bad way to prove a case?” District Attorney Jim Bob Darnell asked the jury. “If it is, 90 percent of the people that are in the penitentiary, you just let them go.”

 

A lame duck prosecutor by the time Cole’s trial started, Darnell seemed to be on a mission. He expressed deep empathy for victims of sexual assaults, saying about Mallin: “that’s the one thing I remember about that girl. She was probably more naïve about her surroundings than any other person I can remember.”

 

By the time Cole’s trial started, some police investigators had become convinced he was not the serial rapist. There was no physical evidence to connect him to the crime and four of the victims had not identified him in the lineup. But Darnell, who is now a state district court judge, managed to prevent the jury from hearing any of the personal doubts of law enforcement. It created a perverse criminal trial situation where the prosecution sought to block every attempt by defense counsel, Mike Brown, from telling the jury about the lack of evidence connecting Cole to the other rapes.

 

“Are we going to try every rape that occurs in Lubbock County over a six month or a year period of time involving black males?” a frustrated Darnell asked the court.

 

It took the jury six and one-half hours to convict Cole of aggravated sexual assault. Cole, who had been released on bond pending trial, was allowed to go home and spend the night with his family before sentencing the next day.

 

“He cried on the floor, and I rocked him in my arms,” 72-year-old Ruby Session recently told the Austin American-Statesman. “He said, ‘Momma, why did these people convict of a crime that I did not commit.’”

 

The following morning came too quickly. Cole stood quietly and composed before Judge Clinton Thomas.

“Do you have anything at this time to say before the court assesses your sentence?” the judge asked.

“I didn’t do it, Your Honor,” Cole replied.

 

The judge then sentenced Cole to 25 years in the Texas prison system. He began to cry as he was led out of the courtroom and escorted to a county jail cell. He quickly told his cell mates that he was innocent. They probably did not believe him.

 

 

Rapists rarely admit their guilt in prison. But a prisoner sitting alone in a separate cell knew Cole was telling the truth. Jerry Wayne Johnson was the real serial rapist who had terrorized the Lubbock community. He remained quiet.

 

But by 1995 the statute of limitation had run out on the Lubbock rapes. It was that same year that Johnson wrote a series of letters confessing to the Lubbock rapes, including the Michele Mallin rape for which Timothy Cole had been convicted. The Austin American-Statesman reported that Johnson’s first letter was sent to an unnamed district court clerk, an unnamed judge, and finally to Cole himself. The last letter somehow did not reach Cole’s mother until 2007 – some eight years after her son’s death.

 

By the time Ruby Session received Johnson’s letter, the media had begun to question the credibility of Cole’s conviction and James Blackburn, an attorney with the Amarillo Innocent Project, had gotten involved in the case. He agreed to represent Timothy Cole’s family and Michele Mallin in a collaborative effort to clear Cole’s name.

 

Faced with this increasing pressure, current Lubbock County District Attorney Mike Powell ordered DNA testing of biological material collected after Mallin’s rape. The DNA not only exonerated Cole but unmistakably identified Johnson as Mallin’s real rapist. The rape victim was both angry and guilty at the stunning revelations. She blamed the Lubbock police department for a “bad investigation” and Darnell for an overzealous prosecution.

 

“I have felt very guilty, but I knew in my heart it was not me but the way the investigation was handled,” she was quoted as saying by the Austin American-Statesman. “I feel like they could have done things a lot more properly.”

 

We agree. The Lubbock police could have really “done things a lot more properly.” Mallin told the police that her attacker left a cigarette butt in her vehicle, and that he had touched her steering wheel and a cigarette lighter. There is no indication in the public record that the police made any effort to lift fingerprints from Mallin’s vehicle door that the attacker yanked open, or from the steering wheel and cigarette lighter that he touched during the sexual assaults.

 

There is also no indication in the public record that the Lubbock police tried to link Jerry Wayne Johnson to the 1984-85 rapes. He was in jail in 1985 charge with two unrelated counts of rape – and by that time the police had begun to have second-thoughts about Cole’s involvement in the serial rapes. Any sophomoric investigator would have taken a photo of Johnson to the victims who had failed to identify Cole as their attacker. Was Johnson wearing a terry cloth shirt, or jeans, or tong sandals when he committed the rapes for which he was charged? And why didn’t the police compare the forensic evidence – the blood and hair – taken from the Mallin rape scene and compare it to Johnson?

 

Armed with the DNA findings, Blackburn filed a petition in the criminal district court in Lubbock County requesting a posthumous exoneration of Timothy Cole. Judge Blair Cherry denied the petition. Undeterred, Blackburn filed the petition before Judge Charles Baird who sits in Travis County. The attorney told the Austin American-Statesman that he chose Baird’s court because he is “one of the best judges in the state.” Blackburn asked the judge to consider the posthumous exoneration under one or three sections of Texas law spelled out in the American-Statesman:

 

  • Find there was probable cause that Johnson raped Mallin in a court of inquiry—a rare legal procedure designed to bypass the grand jury process.
  • Enter an order exonerating Cole under a provision of the Texas Crime Victims Bill of Rights that guarantees crime victims be treated with fairness and respect. The Innocence Project of Texas considers Mallin and the Cole family as crime victims.
  • Enter an order exonerating Cole under a Texas Constitution provision that states “every person for an injury done him in his lands, goods, person or reputation shall have remedy by due course of law.”

On February 6, 2009, Judge Baird closed a lengthy hearing with the conclusion that Timothy Cole did not rape Michele Mallin and that his innocence had been established by indisputable DNA evidence. Judge Baird also concluded that the real rapist was, in fact, Jerry Wayne Johnson.

 

The judge’s ruling marked the first posthumous DNA exoneration in Texas which already led the nation with 35 DNA exonerations before the Baird ruling. Lubbock County District Attorney Powell did not attend the hearing. He was quoted in the American-Statesman after the hearing as saying, “In my mind, I exonerated him [with the DNA test].”

 

Powell declined the opportunity to blame either the police or District Attorney Darnell for Cole’s wrongful conviction.

“What went wrong is you had a victim who picked [Cole] out of a lineup,” Powell told the Statesman.
Judge Baird had a different take on the case. “I am disappointed that the courts in Lubbock County did not think that there was sufficient basis to conduct a hearing,” he said. “I think it is incumbent upon a judge somewhere in Texas to pick up this case and give the Cole family a fair hearing and to restore the good name of their child.”
Even the real rapist demonstrated enough decency to express his regrets for Timothy Cole’s wrongful conviction. “It’s been on my heart to express my sincerest sorrow and regret and to ask to be forgiven,” he stated in court before Judge Baird.

Ruby Session was sympathetic toward Johnson. “Timothy, all he wanted was exoneration and full vindication,” she told Johnson in a calm voice. “I want you to know he was a fine young man. I miss his smile, I miss all the hugs, and I miss those situations in those letters I was getting from him. ‘Just a few lines for my favorite young lady.’ I’ll never feel that again.”

 

Mallin was not as understanding toward Johnson. “I am a very strong 44-year-old woman and I love knowing that you are going to be spending the rest of your life in prison,” she told the rapist in harsh tones. “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, and you listen and you listen good – You better tell every rapist in that stupid jail that no woman deserves this.”

 

In the wake of Cole’s DNA exoneration, the Austin-based The Justice Project released the results of a study entitled Eyewitness Identification Procedures in Texas which revealed that 82 percent of the 38 DNA exonerations in this state through November 2008 involved mistaken eyewitness identifications. The report further disclosed that only 12 percent (88) of the state’s 1034 law enforcement have written polices governing the conduct of photo and lineup identification procedures.

 

On March 8, 2009, CBS’ 60 Minutes devoted two of the program’s three segments to mistaken eyewitness identifications. The program revealed that approximately 75 percent of the 233 DNA exonerations in this country since 1989 (the advent of DNA evidence) involved mistaken eyewitness identifications.

 

And on March 9, 2009, a television station in Lubbock, NewsChannel 11, investigated the issue of eyewitness identification. The station was spurred by the Cole case. It joined forces with Texas Tech law professor Angela Laughlin to set up a purse-snatching incident. To give the experiment as much professional credence as possible, the station’s investigative reporters and Laughlin met with investigators with the Lubbock County Sheriff’s Department to learn how to set up a suspect lineup.

The experiment called for university students to walk, one by one, into a lecture hall unaware that they were about to be eyewitnesses to a crime. The students were told they were there to talk about what it’s like being law students. The station’s news director was selected to be the criminal. He walked into a classroom, stole a purse and fled the room. The reporters and Professor Laughlin asked the students write down what they could remember had occurred during the purse snatching. The students then participated in a lineup. Only 6 of the 32 students, or 8 percent, picked the news director, and not one of them was more than 50% percent certain of his/her identification.

 

These reports and studies reveal just how easy it is for an individual to be wrongfully convicted based on eyewitness identification.

 

It happened to Timothy Cole who was a fine human being. He was offered a chance to plea bargain for probation the day before his trial started. He rejected the offer. He appeared before the Texas Board of Pardons and Paroles and refused to admit to guilt, a prerequisite to parole release. He died alone in a prison hospital ward. His family had to claim his body and bury him. Then a Lubbock County judge refused to even give the family an opportunity to clear his name and the Lubbock County District Attorney refused to either accept any blame for the wrongful conviction or apologize for it. That official behavior is shameful. It is an embarrassment for the good State of Texas.

 

SOURCES:

 

Blackburn, Elliot, “Hope Deferred: Search For a Lubbock Rapist Send Family on Nightmare Journey,” Avalanche-Journal (June 28, 2008)
http://www.lubbockonline.com/stories/062808/loc_296894153.shtml

Kreytak, Steven, “Seeking Justice for Convict Who Died in Prison,” Austin American-Stateman (Feb. 3, 2009)
http://www.statesman.com/news/content/news/stories/local/02/03/0203exonerate.html

Kreytak, Steven, “Witness Points to Police Slip-Ups,” Austin American-Statesman (Feb. 6, 2009)
http://www.statesman.com/news/content/news/stories/local/02/06/0206exonerate.html

Kreytak, Steven, “Judge Clears Name of Late Convict in Rape,” Austin American-Statesman (Feb. 7, 2009)
http://www.statesman.com/news/content/news/stories/local/02/07/0207exonerate.html

NewsChannel 11 Investigates Eyewitness ID (March 9, 2009)
http://www.kcbd.com/global/story.asp?s=9976238

The Justice Project, Eyewitness Identification Procedures in Texas (Nov. 2008)

Click to access texas-eyewitness-report-final2.pdf