Lessons of Exonerations Fade, Reforms Needed

By: Houston Criminal Lawyer John Floyd and Paralegal Billy Sinclair

Imagine, if you can, being falsely accused of a crime, particularly a heinous crime like an aggravated sexual assault of a child or murder. Comprehend, if you can, facing first a jury of your peers who wrongly find you guilty and then a judge who sentences you to a long term of imprisonment or to a life sentence without the benefit of parole, or, worse yet, to a death sentence. Realize, if you can, that a shoddy law enforcement investigation and “convict as any costs” prosecutor were responsible for your wrongful conviction. Shudder, if you can, about the thought of being shackled in handcuffs and leg irons transported to prison in a caged bus or van. 5A82NF5PQ5FT And, cry, if you can, at the thought of dying in prison knowing that all your pleas of innocence fell on deaf ears.

There are, by some estimates, 46,000 innocent people housed in the nation’s prison system. That figure is sobering. As of July 6, 2012, there have been 292 DNA exonerations of innocent people in this country since 1989 and 130 innocent condemned inmates freed from death rows in this country since 1973. There have been 10 condemned inmates since 1989 presumed innocent after their executions:
Carlos De Luna, executed in Texas in 1989; Ruben Cantu, executed in Texas in 1993; Lionel Herrera, executed in Texas in 1993; David Spence, executed in Texas in 1997; Cameron Todd Willingham, executed in Texas in 2004; Jesse Tafero, executed in Florida in 1989; Leo Jones, executed in Florida in 1998; Larry Griffin, executed in Missouri in 1995; Ellis Wayne Felker, executed in Louisiana in 1996; and Joseph O’Dell, executed in Virginia in 1997.  These statistics point to a judicial system that is in disrepair and in serious need of examination and reform.

Each of these men died knowing they were innocent, but their pleas and protestations went unheard. Why? Judicial attitudes and public opinions about innocence over the last couple hundred years have considerably diminished. Several hundred years ago English jurist William Blackstone said, “Better that ten guilty persons escape than one innocent suffer.” However, in 2005 Supreme Court Associate Justice Antonin Scalia dismissed out of hand claims of innocence, saying: “If an innocent person had been executed in America, “we would not have to hunt for it; the innocent’s name would be shouted from the rooftops by the abolition lobby.”

It was the Scalia contempt and disdain for claims of innocence that Timothy Cole could not overcome before his tragic death in the Texas prison system in 1999. This innocent man’s exoneration has had the greatest and most significant impact on the plight of those falsely convicted than any other case, except perhaps the still simmering exoneration of Michael Morton. This past February the State of Texas and Cole’s family unveiled in the Fort Worth cemetery where Cole was buried the first “historical marker” dedicated to an exonerated person—an act that came two years after Gov. Rick Perry issued a posthumous pardon for the wrongfully convicted man.

A former Army veteran and Texas Tech student, Timothy Cole was convicted in 1986 for the rape of a fellow Tech student. He maintained his innocence from the day of his arrest, even turning down a plea bargain prior to his trial. The only real evidence the State had against Cole was the testimony from the victim, Michele Malin. The only other “evidence,” if it can reasonably be classified as such, came from A Texas Department of Public Safety forensic examiner who testified about an examination conducted by his lab of “rape-kit” material taken from the victim at the hospital following the sexual assault. This examination determined that sperm found on Malin’s body came from a Type A secretor.  Both Malin and Cole had had Type A blood, but the examination determined only that Malin was a Type A secretor, not Cole whose secretor’s status was not determined. The examination also revealed there were two pubic hairs in Malin’s underwear which had similar characteristics as Cole’s hair but could not be definitively matched to him.

Cole’s attorney presented an alibi defense: that Cole had been at his brother’s apartment studying while his brother and friends played cars. They all placed him the apartment at the time of Malin’s sexual assault. Both the police who investigated the case and the jury who heard Cole’s case were unimpressed by his alibi.

So what actually made Cole a suspect?

The Lubbock, Texas police department was frustrated that they had not only failed to solve the Malin rape but a series of other Texas Tech area rapes. So the police decided to send a young female undercover officer into the university area two weeks after the Malin 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 one evening. That same evening Cole had been sitting sometime in the restaurant without ordering food or beverages. He wiled 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 in an apartment a couple blocks from Mr. Gatti’s.

Bagby sat at a table drinking 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.

Based on this brief encounter, Lubbock police made Cole a “suspect” in the series of “Tech rapes,” including Malin’s. 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 had marijuana in his possession. He was arrested on misdemeanor drug and weapon charges. The arresting officer in that case also happened to be Rosana Bagby.

This misdemeanor incident was apparently sufficient probable cause to suit the Lubbock police – 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 Malin’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. Malin then entered the lineup room. She had barely reached the glass before pointing to Cole as her attacker.

That’s all it took for Timothy Cole to end up in the Texas prison system with a 25-year prison term. He was into his tenth year of that sentence when he suddenly died from asthma complications. He was only 39 years of age. He did not know that Jerry Wayne Johnson, another Texas prison inmate serving time for a Lubbock rape, wrote a letter to the Lubbock police and prosecutors in 1995 telling them he had raped Malin. No action was taken on the letter. One year after Cole’s unfortunate death, Johnson wrote a letter to a Lubbock judge confessing to the Malin rape. That judge transferred the letter to another judge who rejected it out of hand. Clearly, Lubbock officials did not want to hear any evidence that they had sent an innocent man to prison.

Johnson’s confession ultimately found its way to Cole’s family and the Innocence Project of Texas which secured DNA test of semen found at the Malin crime scene in 2008. Those test indisputably established that Johnson, not Cole, had raped Malin. A February 2009 court hearing posthumously exonerated Cole of the Malin rape which was followed by the 2010 pardon.

In the wake of Cole’s exoneration, the Texas Legislature enacted the Timothy Cole Act which provides $80,000 for each year an innocent person spends in prison under a false conviction—that’s more than any other state provides in compensation for innocents wrongfully convicted. The Cole Act also provides post-incarceration services to the innocents and compensation to the families of innocents who, like Cole, die in prison before their exoneration.

In a rare display of courage for victims who send innocent people to prison, Malin joined the Cole family in pushing for his posthumous judicial exoneration and pardon. She writes and speaks frequently about her role misidentification in such cases. She told the Georgetown Law Center last year: “I was positive at the time that it was him. 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.”

No, he didn’t. Some disputed reports inform that approximately 7,000 inmates die each year in the nation’s prison system. That may or may not be correct. What we do know is that thousands do die there each year, and the number will increase as thousands of lifers become what is known as “geriatric” inmates. Recent figures show that 7.3 percent of the Texas inmate population are over 55 years of age. Of the 4,000 geriatric inmates who applied for medical parole in Texas over the last decade, 3,000 of them were turned down. The end result: approximately 500 inmates are dying each year in the state’s prison system (but not before costing the state hundreds of million dollars).

The stark, unforgiving question in these figures is: how many Timothy Coles have died, or will die, in the Texas prison system because of the Scalia-type of anti-innocence attitude. We saw that attitude on full ugly display among Lubbock officials who not only fought efforts to keep Cole from being exonerated but vigorously opposed the post-exoneration efforts of the Cole family to have him declared officially innocent.

While the recent placement of Cole’s “historical marker” in the Fort Worth cemetery was a gracious gesture by state officials, we would be so much more impressed if the State would utilize its resources to find other Timothy Coles who face inevitable death in prison unless exonerated.

By: Houston Criminal Lawyer John Floyd and Paralegal Billy Sinclair
John Floyd is Board Certified in Criminal Law by the Texas Board of Legal Specialization