March 30, 2022 • 44 mins
In the fall of 1984 and spring of '85, a serial rapist struck at least 4 times with eerily similar details. Meanwhile, a new student, Tim Cole, arrived on campus for the spring semester after the rapes had already began. On March 24th, 1985, a 20 year old student reported what appeared to be the 5th attack. Investigators collected a rape kit, and the victim helped them put together a composite sketch. From a passing glance, a plainclothes detective decided that Tim resembled the composite sketch. Using a very suggestive photo array, investigators engineered the misidentification of Tim Cole, and he was soon convicted. Despite numerous confessions from another man whose DNA ended up matching the material in the rape kit, Tim sat in prison where he passed away in 1999.
To learn more and get involved, visit:
https://www.youtube.com/watch?v=R_QbivKABXk
https://innocenceproject.org/cases/timothy-cole/
https://lavaforgood.com/with-jason-flom/
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Episode Transcript
Available transcripts are automatically generated. Complete accuracy is not guaranteed.
Speaker 1 (00:02):
From the end of through the spring of eighty five,
a serial rapist preyed on the campus of Texas Tech.
Each incident was reported with eerily similar details, including the
fifth attack on a twenty year old student who helped
put together a composite sketch and underwinter rape kit. Meanwhile,
Tim Cole, a new student of Texas Tech, arrived in
(00:23):
the spring semester after the serial rapes had already begun.
From a passing glance, a plain closed detective decided that
Tim resembled the composite sketch. A suggestive photo lineup lit
to Tim's misidentification, arrest and sexual assault charges solely for
the fifth attack in the series, when additional rape occurred
the day after he was taken into custody. Further, the
(00:45):
rapist had smoked during all of the attacks, while Tim,
a chronic athmos sufferer, had never smoked. The judge refused
to admit evidence that this attack was part of a
series that was also connected to a man who was
then in custody. Without these exculpt tory details, Tim was
convicted on the victims shaky testimony of quote, I think
that's him. After the statute of limitations expired. The serial
(01:09):
rapists confessed, but was ignored. DNA testing would eventually proved
Tim's innocence, but not before complications from asthma tragically took
his life. Were joined by his brother Corey and sister Karen,
who shared their journey to posthumously exonerate Tim and restore
his honor. This is Wrongful Conviction. Welcome back to Wrongful Conviction. Today.
(01:44):
You're going to hear a story that is unlike any
we've ever told on this show. And I have to
be honest, as I was reviewing the research on this
case that I've known about for a long time this morning,
I'm not a very emotional guy. It I was fighting
back to years and soon you'll understand why. But there's
(02:05):
a lot of hope in this story too, and I
hope that you'll take that away from this episode and
from the extraordinary people that we have the privilege of
having on the show with us Today, and without further ado,
I'm going to introduce the brother and sister of the
(02:26):
man who was wrongfly convicted. His name was Tim Cole.
He's not with us anymore, but his brother and sister
are very much alive and are absolute warriors for justice.
So Karen, we're going to introduce you first. Karen Kinnard
is a shareholder in the government Law and Policy group
of Greenbriog Sharing and she does quite a bit of
(02:46):
pro bono innocence work. So Karen, welcome to Wrong for Conviction.
Thank you. Jason's great to be here today. And we
also have Tim Cole's brother here, Corey Session, who's vice
president of the Innocence Project of Texas. Corey Um just
super happy and honored to have you on the show today.
Thank you for having me. And during our time today
(03:08):
we're going to get to the extraordinary work that each
of you were doing and how much that would have
meant to your brother. I only wish he was allowed
to see it, honestly. And if we look back in
time to back in, your brother, Tim Cole was in
his mid twenties. He previously attended two years of college
and then joined the Army, where he spent the next
two years before going back to school in attending Texas
Tech and set to major political science. So first, before
(03:32):
we go any further, can each of you just tell
us a little about what your childhood was like and
about your brother Tim's early life, your memories of him
growing up, Karen, let's go to you first. Well, Tim
was the oldest child in our family. We are a
blended family, mother, stepfather, seven children, six boys, and I'm
the only girl in that family. Wow. Uh, Tim's the
(03:57):
oldest and I'm the second oldest. Memories of our families
that you know, it was a happy childhood. We were fortunate.
We had two hardworking, loving parents who tried to do
everything they could to give us what I call the
normal childhood. We grew up on a street called Hellview Drive,
(04:18):
and they were like two other families with seven kids
on Heelview Drive and lots of other families with other kids.
Tim was very well liked. He loved basketball. He took
being a big brother very seriously. He was very responsive
and responsible for us, I think all of us when
(04:40):
he first went off to college, remember receiving letters from him.
He liked to write us letters, give us advice, check
in on us, make sure we were on the right track.
And those are some of the fondest memories I have
of him, of him just being a guardian of us. Corey,
I understand the that he was never in any sort
(05:01):
of trouble right, so he would have seemed to be
for a number of reasons. He would have seemed to
be one of the least likely people in the entire town,
or maybe even the state, to have committed such a
horrific crime. Is that bear to say? Absolutely? Tim was
a quiet person. He was a peacemaker. I'll tell you
one of the memories I have. I think I may
(05:23):
have been six or seven years old, but I remember
this vividly, and this will tell you the type person
Tim was. It's a summer night. We were outside in
front of our house and there had been probably fifteen
kids out there, and the topic people were talking about
was what do you have to do to get to heaven?
And they were going around the circle. Yeah, you gotta
(05:44):
do this, you have to do that. Well, Tim was
sitting at the edge of the driveway with his hands
around his knees. Tim's nickname was Ears, and one of
the older kids said what do you think? And it
was very quiet, and my brother Tim said three things,
just do right and there was a pause. Then all
(06:07):
of a sudden that was an uproar. Yeah, yeah, yeah, okay, yeah.
Leave it to Ears to make it simple and keep
it simple, just do right. Yeah, I've never heard it
said in such quiet, simple, sort of eloquent terms. But
what a good thing to be known for, remembered by.
And he lived it right. And he was not just
(06:27):
talking to talk. He was walking the walk, serving his country,
serving his family. I would say, right, yeah, because he
joined the army specifically to help our family. I mean
we were seven kids and we were starting to have
anywhere from three to four kids in college. He called
me one night and said, you know, I'm doing this
because I know I can get some college benefits. And
(06:49):
he said, I want to help mother and my stepdad.
He was always about trying to figure out how to
help us, how to help the family, how to help
all of us. Yeah, he was serving his family, his community,
and his country. And that brings us to the fall
of through eighty five, when a rapist had been terrorized
in the campus of Texas Tech and love it, having
(07:10):
already victimized four women with the same m O each time. Right,
The women had been taken from parking lots near your campus,
driven to desolate areas, and raped. Assailant usually smoked cigarettes
during the assaults and then would flee on foot Now
on March, the fifth abduction and rape involved a young
student in Michelle Murray Mallon, just twenty years old at
(07:33):
the time. Now, normally we do not mention sexual assault
survivors and names here. However, Michelle is very vocal and
open about her story. She was parking at a lot
across from her dorm when a man approached asking for
help to jump start his car. When she told him
that she would never be jumper cables, the man reached
in through her window and unlocked the car door. Ms
(07:55):
Mallon screamed and bit his thumb, but the man held
a knife to her throat while he moved into the
driver's seat and drove her to a vacant field outside
of town, where he forced her to perform oral sex
and then raped her. He then drove the car back
to Lubbock, where he took two dollars in cash, a ring,
and a watch from miss Malin before leaving on foot,
as he had done in all the other crimes. As
(08:17):
Malin called the police to report the attack, a rape
kit was done, and she helped investigators with a composite sketch.
Now Tim once again was a student at Texas Tech
at the time, but he was home on the night
of the attack studying. His brother was hosting a card game,
So there were five different alibi witnesses, all of whom
(08:37):
were there with Tim. I mean, this story obviously should
have ended right there, but it didn't. So Corey, were
you the one that was hosting the card game. I
was not. I was still in high school. But my brother,
Reggie was the one, who was also a Texas Tech
at that time, who was hosting a card game. Like
you said, the atmosphere of Texas Tech, there's a rapist
(08:59):
loops on Camp Appa's parents were withdrawing their children out
of school because they couldn't catch this person. So the
temperature was high. We've got to find someone. Tim had
a car. One of their roommates worked at the Mr.
Gatti's Pizza and his roommate called him to come pick
him up, and he said, here, I'll go pick you up.
Mind you, this is daytime. He went down there to
(09:20):
pick him up, I saw a young lady walking outside,
paid no attention, went inside. His roommate came out and said, hey, yours,
I'm not gonna be able to get off right away.
Can you come back? He said yeah. Well, that time
that young lady was sitting in the restaurant. Tim got up,
walked back to his car, got in his car. That
young lady was walking down the sidewalk and she had
(09:42):
made eye contact with him while in the restaurant, and
she looked at him. So he let down his window
and said, do you need a ride somewhere? And she
said no, And he said are you sure and she
said yes. He said, well here, he pulled out his
driver's license. He said, my name is Tim Cole and
(10:03):
he showed her his driver's license and then he went
and pulled out his Texas Tech. I d said you're
not to be afraid of me. I go to Texas Tech.
And she said okay, and he said you sure you
don't need anything? She said no, He said okay, and
he drove off. Well, that lady was a undercover police
officer named Joanna Bagby, and she immediately reported to her
(10:27):
supervisors that's him. And the supervisors says, how do you
know that's him? She said, because he looks like the sketch.
That was it. Now Tim had reported as wallet being stolen,
and they had no picture of Tim and the system,
so they found his name that he had reported, so
they knew his address. So they went to his address,
(10:50):
knocked on the door and told him, hey, we may
have a witness who knows who sow your wallet, but
we need to make sure that you are the person.
Can we get a picture of you? And he says sure,
So they took a polaroid picture outside of his apartment,
and that's the one that they put in the six pack.
One polaroid and five other black and white photos. One polaroid.
(11:16):
I just want to repeat that in five other black
and white photos. Let's just pause there for a second,
shall we, Because this is one of those techniques that
police use. It is highly suggested to make one photo
stand out from the others. Other cases we've seen there
was only one person in handcuffs, or again in another case,
there was a single picture in a photo array that
was circled with red like a red marker. So they
(11:39):
took the photo, they put it in the lineup and
Michelle vividly remembers being shown the spread and she pointed
at Tim and said, I think that's him. But the
detective wrote near the photo, that's him, and that's what
they ran with. Came back to his apartment there arrested Tim.
Reggie's as he heard him, said, now, y'all got the
(12:02):
wrong person. I haven't raped anybody, And the police took
him and he told Reggie called mother that night. My
mom flew to Lubbock to bond him out of jail,
took him back home to Fort Worth, and she got
a phone call from the attorney she had retained, a
gentleman by the name of Mike Brown, and he said, Missession,
(12:25):
I was calling to see if you guys made it home. Okay.
She said, yeah, we did. He said, well, I got
some bad news. There's been another rape today. And she said, oh, Mike,
I'm sorry to hear that. He said, well, not only that,
they picked out Tim again, and there was no way
possible that he could have committed the rate right, He
was either in police custody or in Fort Worth when
(12:47):
that day's rape had occurred, but he was identified none
the less. When it comes to eyewitness identification, the best
type of eyewitness identification to perform is a double blind procedure,
which is not done at that time, and it's still
not done in a lot of cases. Yeah, a double
blind procedure is a very straightforward way of removing suggestion
(13:09):
from the process, where the person administering the procedure will
show the photos one at a time and not say anything,
not make any suggestive comments. You simply say the person
who committed the crime may or may not be in
this live if that I'm about to show you, and
then show the person the photos while keeping your mouth shut.
Because even a well meaning interview, if they have their
(13:30):
own preconceived notion about who it is they're going to
steer somebody. It could be subconsciously, and it might be
something as subtle but still powerful as well. Keep trying,
or you're doing a good job. I know how difficult
is this for you, but maybe you want to take
one more shot ahead. Anything like that can be the
difference between life and death for somebody, and between getting
the right or the wrong person or nobody at all.
(13:52):
And the research has been done has shown that simple
changes like instituting double blinds drastically reduces the incidents as
rompel identifications while not and this is critical, while not
reducing the instances of correct identifications right, So it's like
there's literally only an upside here. When the Innocence Project
(14:13):
was leading the charge to try to institute double blind
ideas as policy across the country, and for your brother's sake,
I wish this had been the policy back then, not
to mention the fact that he was in police custody
and therefore, I mean, he couldn't have been in two
places at once. He could not have committed the sixth rape,
(14:34):
and they knew that. You also want to remember, the
rapes happened before Tim got to Lubbock. The rapes have
started happening in the fall of Tim didn't get the
Lubbock until the spring semester started in mid January, and
there were several of the victims who did not pick
him out of any photo array or any of the
(14:57):
live lineups. But the police, once that undercover officer said
those words of that's him, became convinced that it was him.
(15:21):
You can't be in two places at the same time.
Tim could not have been either in police custody or
in transit to Fort Worth with your mom while also
out there committing the sixth rape, just like he could
not have committed the initial four rapes before even coming
to Lubbock to attend Texas Tech or be at home
(15:43):
studying during your brother, Reggie's card game while Michelle Allen
was raped. And I have to say I really feel
for Reggie too, right because imagine what that would be
like and how it must have impacted him, having known
definitively that Tim was innocent because he was right there
with him at the time. It drastically changed Reggie's life.
(16:05):
He has felt responsible for a long time for everything
that happened to him, and it took him over twenty
five years, took him a lot of therapy to finally
recognize that it wasn't his fault. He's doing fine now,
but it took him a long long time. So the
investigation was a bad mockery of an investigation. I would
(16:26):
say the description, of course, had some glaring errors in
it as well. When I say that the victim who's white,
and we know that cross racial identifications are the most
error prone, they're less accurate than guessing. And yes, you
heard me correctly, and that's been proven in study after study.
(16:46):
So she was white, and she described her attack her
the police as a young African American man with bug eyes.
Did your brother have bug eyes? Okay? And he was
under six ft tall. The attacker, according to her initial
description wearing a yellow shirt and sandals, how tall was
Tim and did he own any kind of clothing such
as that Tim stood six ft one in. The victim
(17:10):
recounted that the person wore a yellow terry cloth shirt
and she remembers it because she always hated terry cloth shirts.
They did collect a yellow shirt from my brother's possessions, however,
it was not a terry cloth shirt. And she didn't
give a lot of other details. I mean, the poor
woman was obviously traumatized. But she did say, and this
(17:34):
piece of the identification is unmistakable, right she said the
perpetrator had smoked cigarettes throughout the attack. Now there's something
about your brother where this should have, right now set
off all kinds of warning signals. And Karen, what am
I talking about? Tim had asthma, He was born in asthmatic,
had had problems with his asthma all his life, and
(17:56):
did not smoke cigarettes. So even though the m O
was consistent throughout and police had believed all along that
the same person had committed all six rapes, Tim was
arrested and charged with the aggravated sexual assault just of Ms.
Mallen and none of the other rapes. Now here's something
I'm struggling with. Considering the nature of these crimes. Tim
(18:18):
was offered a plea bargain with no prison time. Yes,
the district attorney at that time, manned by the name
of Jim Bob Darnell, the day before trial told him,
you were facing twenty years in prison. We're gonna offer
your probation. And Tim said, I'd rather spend twenty five
years in prison before I ever admit to something I
(18:39):
did not do. And Mr Darnell very smugly said, well,
we aimed to make sure that happens if they believe
that your brother was responsible for even one of these rapes.
This is a black man in Texas accused of raping
a white woman. You think that they would have offered
(19:01):
him probation. No, not a chance in how there is
no way they would have offered him probation. And let
me just say, unlike a lot of these cases, my
parents hired a very good lawyer. We were fortunate in
that there were resources to do that. He did a
really good job of investigating, and so we knew there
(19:23):
was a police officer from the university who had told
them that they had the wrong person. That Tim was
not the person who had raped this young woman that
the Texas Tech Police Department gave him the name of
who they thought the person was. And mind you, also,
when they arrested Tim, they announced in the media, the radio, print,
(19:44):
electronic media, that they had caught the tech rapists. They
just did not want to say, oops, sorry, Tim, we
got the wrong person. The attorney, Mike Brown was very
confident that they were going to drop the charges. He'd
be found innocent because they had actually arrested another guy
who had committed rapes with the same m O. And
(20:07):
other attorneys are like, oh, yeah, that'll take care of
But they did not want to relinquish the fact that
we got him and we're going to keep it. When
that trial started, it was a media circus, and my
mom brought some of the newspaper clippings and things home.
Tech rapists, called tech rapists, all of these things. Now,
the trial begins in September. Remember this is before DNA testing,
(20:30):
so they only had prology testing, in which you can
determine blood types and whether or not the source of
any bodily fluids as a secretor meaning the blood type
can be identified in all bodily fluid is not just blood.
So the forensic examiners for the state had examined the
rape kit and had identified a Type A blood secretor
on the swab. However, the victim was a Type A
(20:54):
secretor and Tim also had Type A blood, but his
secretors status was unknown, so therefore the prology offered no
meaningful conclusions at all. They also compared foreign pubic Harris
collected from the victims to those from Tim and said
that they had similar characteristics, but that they couldn't draw
firm conclusions, so the biological evidence really offered very little
(21:16):
to work with. Corey. What else happened at trial? Michelle
Malon went on the witness stand and was asked, do
you see the man in the courtroom that you said
raped you? She said, I think that's him and Tim,
being an asthmatic that's brought up can't smoke. She never
(21:36):
knew that Tim wasn't asthmatic and couldn't smoke. The bite
that she put on the actual perpetrator's phone, there were
no bike marks on Tim. I mean, this is a
woman who's literally fighting for her life. She didn't know
whether she was going to survive this attack or not
when she bit him, so she probably meant to take
that finger clean off. How the hell would that not
(21:59):
leave a mark? And you have to remember it was
one week between when she was assaulted and when Tim
was arrested. They didn't find any bite marks on him.
So what about Tim's alibi witness testimony? Weren't there five
alibi witnesses at your brother Reggie's card game. There was
a vigorous defense with all of the alibi witnesses who
(22:21):
were very certain that Tim was there that night. They
were saying, you know, he was the studious one. He
didn't join in in the card game. They said he
told him he had a test. When my brother Reggie testified,
he was very certain and forceful that Tim did not
do this. Tim was at home, and the prosecutor said
he was being very brash, he'll say anything to protect
(22:43):
his brother. Well Reggie. When he got through testifying Mike Brown,
the attorney grabbed him and took him outside and said, Reggie,
I want you to listen to me very carefully. I
want you to go down this hallway. I want you
to go down the back steps all the way downstairs
and go out the actor. My secretary is waiting for you.
She's going to take it to the airport. You're gonna
(23:04):
get on the plane and you're not to come back
to Love the love of Police were going to charge
Reggie with one of the rapes of the Tech rapists,
just for him defending my brother. Reggie remembers vividly tim
telling him they got me, don't let him get you.
That is just fucking terrifying. Michelle. When we talked to her,
(23:24):
she told my mother in a session, I remember this
because the rape crisis counselor told me, you know, they're
going to arrest his brother too for the other rapes.
These people just don't give a shit about truth, justice
or anything. And just when you thought this couldn't get
any worse. That brings us to Jerry Wayne Johnson. It
was a Perry Mason moment when my brother's attorney, Mike Brown,
(23:49):
said who the rapist was, Jerry Wayne Johnson. Mike Brown
wanted to introduce evidence showing the similarities and all the
other but the judge denied it. He denied every time
he would try and bring those things up about Jerry Wayne.
Jonathan then pret and to hold an attorney in contempt
of court. The judge did not allow evidence that there
(24:12):
was this string of other attacks where there was this
m O of what the perpetrator was doing approaching victim's
own foot, smoking and all of the attacks. The judge
didn't allow evidence of that into the trial. And if
that evidence may have been admitted into the trial, that
would have been stronger evidence in my brother's favor, in
addition to the alibi evidence that he had absolutely not
(24:36):
to mention if DNA testing had been available to do
what it eventually did in this case. So, Karen, what
happened next? I mean, I can't imagine what all of
this was like for you and your family, because Corey
and I had a couple of the brothers still in
school at that time. My dad stayed home with them
so that they can continue school. So I was the
(24:56):
only person who actually set through that one week trial.
It was a one week trial, a full week and
I call it the Week of Hell. Started that Monday
morning and it went all the way through Friday. They
came back late Friday afternoon with that verdict. So you
were there for the verdict. What was that moment, like,
you know, took her breath away? They were out for
a long time that day, and so we were hopeful
(25:19):
because he had been offered probation, So we thought, maybe
they'll bill hung jury, maybe they'll come back with not guilty.
We knew that we had a good lawyer who had
put on the best case he could with what the
judge had allowed him to put into evidence, and that
Tim had been a good witness for himself. He was earnest,
he was forthcoming, and we had laid it all on
(25:42):
the table. But when that guilty verdict came back, it
was a gut punch. I remember I was seventeen. I
was a freshman at U T Austin, and I remember
my mom calling me telling me they convicted Tim, and
I was like how. And that weekend we all came
home except for Tim, and it was probably two am
(26:07):
in the morning, and it was very quiet, except for
my mother walking back and forth down the hallway, screaming,
swinging her hands back and forth, talking to God, saying,
why did you let them do this to him? You know,
he's not guilty, Just back and forth, back and forth.
(26:28):
And I got up and woke my dad up, and
he went to the hallway and he put his arm
around her and he said, come on, Ruby, and he
walked her to her side of the bed, and I
was standing in the hallway just looking at her. She
seemed to still be in this trance even when our
(26:50):
grandmother passed away. When my dad passed away, I didn't
see her and that much pain. And my mother always
prayed from day one, let whoever did this, let them
come forward. And decade later her prayer came true. The
(27:23):
day Tim was sentenced to five years, he was taken
into custody and put in the sales in love A County,
and there was a man across from him in another
cell who heard Tim crying, I didn't do this, Why
would you let this happen? Talking to God, and this man,
(27:43):
who happened to be Gerry Wayne Johnson said at that
point something in him told him one day he was
going to have to make it right. We believe him
on that because jail records show he was in custody
and he was in the same general area as to Tim,
so he could have heard him. And then ten years
later he actually writes letters to the judge, to the prosecutors,
(28:08):
to our defense attorney admitting his guilt, and he would
do whatever it took to clear Tim's name. It's extraordinary,
so Jerry Wayne Johnson. After the statute of limitations of
his rape that expired, he wrote two judges and the
(28:28):
prosecutor the lob A d A we mentioned before Jim
Bob Darnell, as well as to Mike Brown, that he
had committed the rape. Tim was convicted of Johnson by
this time with serial life plus years sentence, after convictions
for two of the other sexual assaults, which were almost
identical in terms of characteristics to the one that Tim
(28:49):
was convicted of. So ultimately, even though one would think
that they would admit their mistake now that the actual
perpetrator was confessing, Johnson's letters were not even acknowledged me
and while Tim remained in prison and was offered parole
but only if he would admit to guilt. When he
refused twice during his prison term, due to his extremely
(29:10):
serious asthma condition, he was found unconscious in his self.
Tim was left to suffer with this condition in a
place where the condition would only worsen and the symptoms
would obviously be exacerbated due to the various deprivations of
a Texas prison cell and Ultimately, after thirteen long years
in prison, Tim's system just couldn't take it anymore, and
(29:33):
on December two, he died in the Texas prison cell
that he never should have set foot in in the
first place. I remember when it happened because it sent
shock waves through the innocence community, and I remember feeling
(29:54):
a sense of outrage that I had not I had
not experienced that part picular emotion before, because it just
struck me as so so freaking wrong. You know that
I had heard of all sorts of wrongful convictions and
all sorts of injustices, but this one, I think he
had a lot of us really hard still does to
(30:15):
this day. And the year after Tim died, Johnson wrote
again to a supervising judge. This time the case was
moved to a different judge and rejected without comment, but eventually,
in May two thousand seven, Johnson's most recent confession letter
reached the Innocence Project of Texas and your family. At
(30:36):
the Innocence Project, we receive hundreds of letters a month,
but rarely do you receive a letter from someone admitting
their guilt and wanting to exonerate another party. So the
Innocence Project of Texas saw postumust DNA testing the case,
and Lubbock prosecutors this time cooperated. So how did all
(30:56):
of this take place? A young man by the name
of Elliott Blackburn, he was a government reporter with the
Lubbock Avalanche Journal, took a call from me about a
letter we had received and he said, I'm interested send
it to me. And I said, just so you know,
this letter is from the person who committed the rapes
and he was mentioned that trial. One week later, he
(31:18):
wrote a story in the Lubbock Avalanche Journal, and the Reporter,
as well as the Innocence Project very good attorney named
Jeff Blackburn, pushed Matt Pyle, who was the then distric
attorney at Lubbock, to do DNA testing, and the reporter
caught him on a Saturday at a softball game for
his son, and he quoted him as saying, we will
(31:40):
do whatever it takes to prove Tim Cole's guilt or innocence.
And we hadn't heard anything for months, and Elliott the
reporter called and said, Corey, I got some news and
it's big. They got the DNA test back and they've
been sitting on it for over a month. I called
(32:00):
my mother and I said, mother, Eliot's on the phone.
They got the DNA tests back, and he said, miss Session,
the DNA excludes Tim and it matches Jerry Wayne Johnson.
And my mother said, well, now you all know when
they said they found the rape kit and there was
enough to test back in January of two thousand and eight,
(32:23):
we actually celebrated then because we knew, so we were
a little bit subdued when they're like, Okay, well now
you know what I've always known. Get this the victim
in this case. Michelle now and courageously speaks and writes
about this case to raise awareness about misidentifications and wrongful convictions.
A direct quote from her, she said this at Georgetown
(32:46):
University Law. I was positive at the time that it
was him. I was shocked when I found out it
wasn't him. I joined Tim's family and working to exonerate
him because it was the right thing to do. Timothy
didn't deserve what he got. End quote. Mic Drop. Wow, Michelle,
so much respect for you. So Matt Piale, the district attorney,
(33:08):
was very much well, as far as I'm concerned, he's clear. No, no, no.
My mother said I want his good name back for
the animals of Texas history to show that Tim Cole
was innocent. So Jeff Blackburn requested a hearing in Lubbock,
knowing full well they would deny it because no deceased
person had ever had a exoneration hearing in Texas. And
(33:34):
Jeff Blackburn had used his expertise and knowledge of the
Texas Constitution and statutes to use a little known procedure
called a courte of inquiry, which allows you to seek
redress in any county in the state of Texas, regardless
of your conviction, if you can show just calls that
(33:54):
you were wrong. And in the two District Court in
Travis County, Judge Air agreed to have a hearing and
we requested that Jerry Wayne Johnson b bench warned to
the hearing. So during a two day hearing in February
two thousand nine, Johnson again confessed to the climb, this
time before a judge, before your family, and before the victim.
(34:18):
It was very surreal. I taking my brother's A couple
of them were real angry. So there were quite a
few bailiffs in the courtroom, so there were gonna be
some disorder in the court, and I remember my brother
Kevin was sitting literally on my brother Sean because Sean
went into the military, because Tim went into the military,
and he was going to jump over the bar, and
(34:41):
so he had the whole sewn down because he was
visibly shaken and emotional. But as my mother said, if
I'm not angry, no one can be angry, and no
one can be angry for me. She knew that Tim
had a greater purpose, and the greater purpose became clear,
and I one of course mentioned the Innocence Project of
(35:02):
New York joined with the Innocence Projects of Texas co
counsel on the case. And let me just say that
the Innocence Project of New York found the letter that
Tim wrote to them in asking for assistance and returned
that letter to my mother. Barrischeck, I can't say enough
about him, took time out, came and co counseled on
(35:23):
Tim because it was so important that we have finally
proven in these United States that the innocent due in
fact I in prison. But Tim, and many of his
letters to us and to my mother, he always said
I want three things, vindication, exoneration, and a full pardon.
(35:44):
The vindication came with the DNA testing. The exoneration came
through the District Court, who Judge Baard said he was
factually and morally innocent and this was the worst misca
arriage of justice he had ever seen in his entire life.
And then on March on, Texas Governor Rick Perry pardoned
(36:07):
your brother his third wish. And then soon after that,
the State of Texas passed the Timothy Cole Act, increasing
compensation paid to axonorees after their release and adding compensation
for the family of an axonoree cleared after death. Thank
you to Rodney Ellis, who was a chair of the
board of the Innocence Project of New York, who was
instrumental in getting that passed. The state also created the
(36:29):
Timothy Cole Advisory Panel on Rawful Convictions in two thousand
nine to study the prevention of rawful convictions across the stating. Ultimately,
a thirteen foot bronze statue of Tim in two thousand
fourteen was dedicated in Lubbock, depicting young Tim looking towards
Texas Tech University Law School, where he almost certainly would
have graduated and gone on to do probably incredible things
(36:53):
and in his hands on the statue or two books,
the binding of one says lest we Forget, and base
of the sculpture reads and Justice for All. Wow. And
Texas Tech University System regents voted in two thousand fifteen
to posthumously award him an honorary degree in law and
social Justice. What an incredible ending to the story. Before
(37:16):
we get to the closing of the show, is there
a call to action for the audience? Is there's something
that you'd like them to donate to our website you'd
like to go to. All of our work is focused
on the Texas Innocence Project, So the incarcerated innocence they
need all the help they can get. There are more
of them than there are people to help them. So
(37:38):
anything you can do, anything you feel called to do,
to give to the Texas Innocence Project is greatly appreciated.
Our family's mission is to continue to work on legislation
through the Texas Innocence Project because there's still some things
in the law that need to be changed. And that's
Innocence Texas dot org. That's Innocent Texas dot Org. Will
(38:01):
also put a link in our bio for people to
donate and get involved. So now, Karen and Corey, we
have a tradition here at Wrong for Conviction, which is
that the end of our show is called closing arguments.
It works like this. I first of all, thank each
of you, not just for being here today, but for
(38:21):
just being such incredible fighters and courageous humans. I'm proud
to know you and honor to have had you here today.
So thank you for that. And then I'm going to
turn my microphone off, turn my volume on my headphones
up just a little bit, kick back in my chair,
and leave your mics on, and let's close out the
(38:43):
show with any final thoughts you want to share. Who
wants to go first? And then hand the mic off
to your brother or sister, whoever it is, and then
you can take us out into the sunset. Well, I'll
go first, because my youngest brother is so eloquent, I'll
leave the final words for him. Thank you, Jason for
(39:03):
having us today and for continuing to elevate these issues.
I'm happy to be here to represent my brother and
our family and to present our story of his case.
But more than anything, I'm happy here to just let
people know that we as a family stand on the
(39:24):
shoulders of my brother and my mother, two wonderful people
who were given circumstances beyond their control but made the
best of those circumstances, and I think have made a
difference not just in the state of Texas, but in
the nation in the criminal justice system. And so my
(39:46):
final words to the listeners here today is that we
still do have one of the best criminal justice systems,
but it's just flawed. And that's okay. So I asked
each your listeners to take a moment and think about
what is it you can do to make the system better,
because there's always something that each of us can do
(40:08):
to make it just a little better. When Tim was
in prison, he received back pay from the army for
some fourteen thousand dollars. It was all deposited into his
inmate trust fund. And when his belongings came from prison
after he had died, there was just a little box
(40:29):
and there was a check from the Texas Department of
Criminal Justice Institutional Division, and it was for only thirty
six dollars and some change. And some of my siblings
were like, what in the world happened to all his money?
What happened? And I remember a couple of days had
gone by. My mother had organized all of his letters,
(40:52):
and I was at our house and I remember her
yelling Corey, Corey, come here, come here and rent room.
I said, what is it? And she was throwing some
papers across her bed, and she said, he gave it away,
My baby gave it all away. And there were receipts
(41:13):
from the Catholic charities feed the children. He gave the
bulk of his money to those in need. He knew
he couldn't help himself, but he still had the power
to help others. There are many people like Tim who
are still in prison waiting to be cleared. In Texas,
(41:35):
there are some plus prisons, more than sixty tho inmates.
The Texas Prosecutor County Day's Association, they say that the
amount of innocent people in prison is as high as
ten That's a lot of people. We have only scratched
the surface. My mother, when she found out that the
(41:59):
statue was going to be up, a reporter said, Missession,
how do you feel. Did you want to sue Lubbock
for this? And she said, what I want no man
can give, and what I need is for them to
never forget. So the Baton is on us to make
sure people never forget. We want to make sure that
(42:19):
this does not happen to another family, that another man,
another woman does not go to prison after serving his country,
after just doing right, and the entire judicial system turn
its back on him because they need a conviction. So
we're thankful. We are grateful that he was cleared. But
(42:42):
as my mom said, I never would have thought that
on July one, nineteen six, that God would have chose
me to be the vessel for change in the criminal
justice system in Texas. My mother when she first met Michelle,
the rape victim, Michelle was crying on the front steps
of my house, and my mother told her stop crying.
(43:05):
You have nothing to be sorry for. You were a
victim just as tim as they was. And Michelle admired
some heartshaped ear rings my mother had, and we had
dinner at my house for about three hours there and
it was like we were old friends. And when Michelle
was leaving, my mother grabbed her arm and said give
me a hand, and she put her heart shaped ear
(43:28):
rings in Michelle's hand and she said, oh, miss Session,
I can't take this. She said, no, no, you give
people their flowers while they're alive, so we will try
and make sure we can give as many people their
flowers in hopes of getting them exonerated, keeping them from
going into the criminal justice system as best we can.
(43:55):
Thank you for listening to Ron Conviction. I'd like to
thank our production team Connor Hall, Justin Golden, Jeff Claverne,
and Kevin Wardis with research by Lila Robinson. The music
in this production was supplied by three time OSCAR nominated
composer Jay Ralph. Be sure to follow us on Instagram
at Wrongful Conviction, on Facebook at Wrongful Conviction podcast, and
(44:16):
on Twitter at wrong Conviction, as well as at Lava
for Good. On all three platforms, you can also follow
me on both TikTok and Instagram at It's Jason flom
Raleful Conviction is the production of Lava for Good Podcasts
and association with Signal Company Number one
From the end of through the spring of eighty five,
a serial rapist preyed on the campus of Texas Tech.
Each incident was reported with eerily similar details, including the
fifth attack on a twenty year old student who helped
put together a composite sketch and underwinter rape kit. Meanwhile,
Tim Cole, a new student of Texas Tech, arrived in
(00:23):
the spring semester after the serial rapes had already begun.
From a passing glance, a plain closed detective decided that
Tim resembled the composite sketch. A suggestive photo lineup lit
to Tim's misidentification, arrest and sexual assault charges solely for
the fifth attack in the series, when additional rape occurred
the day after he was taken into custody. Further, the
(00:45):
rapist had smoked during all of the attacks, while Tim,
a chronic athmos sufferer, had never smoked. The judge refused
to admit evidence that this attack was part of a
series that was also connected to a man who was
then in custody. Without these exculpt tory details, Tim was
convicted on the victims shaky testimony of quote, I think
that's him. After the statute of limitations expired. The serial
(01:09):
rapists confessed, but was ignored. DNA testing would eventually proved
Tim's innocence, but not before complications from asthma tragically took
his life. Were joined by his brother Corey and sister Karen,
who shared their journey to posthumously exonerate Tim and restore
his honor. This is Wrongful Conviction. Welcome back to Wrongful Conviction. Today.
(01:44):
You're going to hear a story that is unlike any
we've ever told on this show. And I have to
be honest, as I was reviewing the research on this
case that I've known about for a long time this morning,
I'm not a very emotional guy. It I was fighting
back to years and soon you'll understand why. But there's
(02:05):
a lot of hope in this story too, and I
hope that you'll take that away from this episode and
from the extraordinary people that we have the privilege of
having on the show with us Today, and without further ado,
I'm going to introduce the brother and sister of the
(02:26):
man who was wrongfly convicted. His name was Tim Cole.
He's not with us anymore, but his brother and sister
are very much alive and are absolute warriors for justice.
So Karen, we're going to introduce you first. Karen Kinnard
is a shareholder in the government Law and Policy group
of Greenbriog Sharing and she does quite a bit of
(02:46):
pro bono innocence work. So Karen, welcome to Wrong for Conviction.
Thank you. Jason's great to be here today. And we
also have Tim Cole's brother here, Corey Session, who's vice
president of the Innocence Project of Texas. Corey Um just
super happy and honored to have you on the show today.
Thank you for having me. And during our time today
(03:08):
we're going to get to the extraordinary work that each
of you were doing and how much that would have
meant to your brother. I only wish he was allowed
to see it, honestly. And if we look back in
time to back in, your brother, Tim Cole was in
his mid twenties. He previously attended two years of college
and then joined the Army, where he spent the next
two years before going back to school in attending Texas
Tech and set to major political science. So first, before
(03:32):
we go any further, can each of you just tell
us a little about what your childhood was like and
about your brother Tim's early life, your memories of him
growing up, Karen, let's go to you first. Well, Tim
was the oldest child in our family. We are a
blended family, mother, stepfather, seven children, six boys, and I'm
the only girl in that family. Wow. Uh, Tim's the
(03:57):
oldest and I'm the second oldest. Memories of our families
that you know, it was a happy childhood. We were fortunate.
We had two hardworking, loving parents who tried to do
everything they could to give us what I call the
normal childhood. We grew up on a street called Hellview Drive,
(04:18):
and they were like two other families with seven kids
on Heelview Drive and lots of other families with other kids.
Tim was very well liked. He loved basketball. He took
being a big brother very seriously. He was very responsive
and responsible for us, I think all of us when
(04:40):
he first went off to college, remember receiving letters from him.
He liked to write us letters, give us advice, check
in on us, make sure we were on the right track.
And those are some of the fondest memories I have
of him, of him just being a guardian of us. Corey,
I understand the that he was never in any sort
(05:01):
of trouble right, so he would have seemed to be
for a number of reasons. He would have seemed to
be one of the least likely people in the entire town,
or maybe even the state, to have committed such a
horrific crime. Is that bear to say? Absolutely? Tim was
a quiet person. He was a peacemaker. I'll tell you
one of the memories I have. I think I may
(05:23):
have been six or seven years old, but I remember
this vividly, and this will tell you the type person
Tim was. It's a summer night. We were outside in
front of our house and there had been probably fifteen
kids out there, and the topic people were talking about
was what do you have to do to get to heaven?
And they were going around the circle. Yeah, you gotta
(05:44):
do this, you have to do that. Well, Tim was
sitting at the edge of the driveway with his hands
around his knees. Tim's nickname was Ears, and one of
the older kids said what do you think? And it
was very quiet, and my brother Tim said three things,
just do right and there was a pause. Then all
(06:07):
of a sudden that was an uproar. Yeah, yeah, yeah, okay, yeah.
Leave it to Ears to make it simple and keep
it simple, just do right. Yeah, I've never heard it
said in such quiet, simple, sort of eloquent terms. But
what a good thing to be known for, remembered by.
And he lived it right. And he was not just
(06:27):
talking to talk. He was walking the walk, serving his country,
serving his family. I would say, right, yeah, because he
joined the army specifically to help our family. I mean
we were seven kids and we were starting to have
anywhere from three to four kids in college. He called
me one night and said, you know, I'm doing this
because I know I can get some college benefits. And
(06:49):
he said, I want to help mother and my stepdad.
He was always about trying to figure out how to
help us, how to help the family, how to help
all of us. Yeah, he was serving his family, his community,
and his country. And that brings us to the fall
of through eighty five, when a rapist had been terrorized
in the campus of Texas Tech and love it, having
(07:10):
already victimized four women with the same m O each time. Right,
The women had been taken from parking lots near your campus,
driven to desolate areas, and raped. Assailant usually smoked cigarettes
during the assaults and then would flee on foot Now
on March, the fifth abduction and rape involved a young
student in Michelle Murray Mallon, just twenty years old at
(07:33):
the time. Now, normally we do not mention sexual assault
survivors and names here. However, Michelle is very vocal and
open about her story. She was parking at a lot
across from her dorm when a man approached asking for
help to jump start his car. When she told him
that she would never be jumper cables, the man reached
in through her window and unlocked the car door. Ms
(07:55):
Mallon screamed and bit his thumb, but the man held
a knife to her throat while he moved into the
driver's seat and drove her to a vacant field outside
of town, where he forced her to perform oral sex
and then raped her. He then drove the car back
to Lubbock, where he took two dollars in cash, a ring,
and a watch from miss Malin before leaving on foot,
as he had done in all the other crimes. As
(08:17):
Malin called the police to report the attack, a rape
kit was done, and she helped investigators with a composite sketch.
Now Tim once again was a student at Texas Tech
at the time, but he was home on the night
of the attack studying. His brother was hosting a card game,
So there were five different alibi witnesses, all of whom
(08:37):
were there with Tim. I mean, this story obviously should
have ended right there, but it didn't. So Corey, were
you the one that was hosting the card game. I
was not. I was still in high school. But my brother,
Reggie was the one, who was also a Texas Tech
at that time, who was hosting a card game. Like
you said, the atmosphere of Texas Tech, there's a rapist
(08:59):
loops on Camp Appa's parents were withdrawing their children out
of school because they couldn't catch this person. So the
temperature was high. We've got to find someone. Tim had
a car. One of their roommates worked at the Mr.
Gatti's Pizza and his roommate called him to come pick
him up, and he said, here, I'll go pick you up.
Mind you, this is daytime. He went down there to
(09:20):
pick him up, I saw a young lady walking outside,
paid no attention, went inside. His roommate came out and said, hey, yours,
I'm not gonna be able to get off right away.
Can you come back? He said yeah. Well, that time
that young lady was sitting in the restaurant. Tim got up,
walked back to his car, got in his car. That
young lady was walking down the sidewalk and she had
(09:42):
made eye contact with him while in the restaurant, and
she looked at him. So he let down his window
and said, do you need a ride somewhere? And she
said no, And he said are you sure and she
said yes. He said, well here, he pulled out his
driver's license. He said, my name is Tim Cole and
(10:03):
he showed her his driver's license and then he went
and pulled out his Texas Tech. I d said you're
not to be afraid of me. I go to Texas Tech.
And she said okay, and he said you sure you
don't need anything? She said no, He said okay, and
he drove off. Well, that lady was a undercover police
officer named Joanna Bagby, and she immediately reported to her
(10:27):
supervisors that's him. And the supervisors says, how do you
know that's him? She said, because he looks like the sketch.
That was it. Now Tim had reported as wallet being stolen,
and they had no picture of Tim and the system,
so they found his name that he had reported, so
they knew his address. So they went to his address,
(10:50):
knocked on the door and told him, hey, we may
have a witness who knows who sow your wallet, but
we need to make sure that you are the person.
Can we get a picture of you? And he says sure,
So they took a polaroid picture outside of his apartment,
and that's the one that they put in the six pack.
One polaroid and five other black and white photos. One polaroid.
(11:16):
I just want to repeat that in five other black
and white photos. Let's just pause there for a second,
shall we, Because this is one of those techniques that
police use. It is highly suggested to make one photo
stand out from the others. Other cases we've seen there
was only one person in handcuffs, or again in another case,
there was a single picture in a photo array that
was circled with red like a red marker. So they
(11:39):
took the photo, they put it in the lineup and
Michelle vividly remembers being shown the spread and she pointed
at Tim and said, I think that's him. But the
detective wrote near the photo, that's him, and that's what
they ran with. Came back to his apartment there arrested Tim.
Reggie's as he heard him, said, now, y'all got the
(12:02):
wrong person. I haven't raped anybody, And the police took
him and he told Reggie called mother that night. My
mom flew to Lubbock to bond him out of jail,
took him back home to Fort Worth, and she got
a phone call from the attorney she had retained, a
gentleman by the name of Mike Brown, and he said, Missession,
(12:25):
I was calling to see if you guys made it home. Okay.
She said, yeah, we did. He said, well, I got
some bad news. There's been another rape today. And she said, oh, Mike,
I'm sorry to hear that. He said, well, not only that,
they picked out Tim again, and there was no way
possible that he could have committed the rate right, He
was either in police custody or in Fort Worth when
(12:47):
that day's rape had occurred, but he was identified none
the less. When it comes to eyewitness identification, the best
type of eyewitness identification to perform is a double blind procedure,
which is not done at that time, and it's still
not done in a lot of cases. Yeah, a double
blind procedure is a very straightforward way of removing suggestion
(13:09):
from the process, where the person administering the procedure will
show the photos one at a time and not say anything,
not make any suggestive comments. You simply say the person
who committed the crime may or may not be in
this live if that I'm about to show you, and
then show the person the photos while keeping your mouth shut.
Because even a well meaning interview, if they have their
(13:30):
own preconceived notion about who it is they're going to
steer somebody. It could be subconsciously, and it might be
something as subtle but still powerful as well. Keep trying,
or you're doing a good job. I know how difficult
is this for you, but maybe you want to take
one more shot ahead. Anything like that can be the
difference between life and death for somebody, and between getting
the right or the wrong person or nobody at all.
(13:52):
And the research has been done has shown that simple
changes like instituting double blinds drastically reduces the incidents as
rompel identifications while not and this is critical, while not
reducing the instances of correct identifications right, So it's like
there's literally only an upside here. When the Innocence Project
(14:13):
was leading the charge to try to institute double blind
ideas as policy across the country, and for your brother's sake,
I wish this had been the policy back then, not
to mention the fact that he was in police custody
and therefore, I mean, he couldn't have been in two
places at once. He could not have committed the sixth rape,
(14:34):
and they knew that. You also want to remember, the
rapes happened before Tim got to Lubbock. The rapes have
started happening in the fall of Tim didn't get the
Lubbock until the spring semester started in mid January, and
there were several of the victims who did not pick
him out of any photo array or any of the
(14:57):
live lineups. But the police, once that undercover officer said
those words of that's him, became convinced that it was him.
(15:21):
You can't be in two places at the same time.
Tim could not have been either in police custody or
in transit to Fort Worth with your mom while also
out there committing the sixth rape, just like he could
not have committed the initial four rapes before even coming
to Lubbock to attend Texas Tech or be at home
(15:43):
studying during your brother, Reggie's card game while Michelle Allen
was raped. And I have to say I really feel
for Reggie too, right because imagine what that would be
like and how it must have impacted him, having known
definitively that Tim was innocent because he was right there
with him at the time. It drastically changed Reggie's life.
(16:05):
He has felt responsible for a long time for everything
that happened to him, and it took him over twenty
five years, took him a lot of therapy to finally
recognize that it wasn't his fault. He's doing fine now,
but it took him a long long time. So the
investigation was a bad mockery of an investigation. I would
(16:26):
say the description, of course, had some glaring errors in
it as well. When I say that the victim who's white,
and we know that cross racial identifications are the most
error prone, they're less accurate than guessing. And yes, you
heard me correctly, and that's been proven in study after study.
(16:46):
So she was white, and she described her attack her
the police as a young African American man with bug eyes.
Did your brother have bug eyes? Okay? And he was
under six ft tall. The attacker, according to her initial
description wearing a yellow shirt and sandals, how tall was
Tim and did he own any kind of clothing such
as that Tim stood six ft one in. The victim
(17:10):
recounted that the person wore a yellow terry cloth shirt
and she remembers it because she always hated terry cloth shirts.
They did collect a yellow shirt from my brother's possessions, however,
it was not a terry cloth shirt. And she didn't
give a lot of other details. I mean, the poor
woman was obviously traumatized. But she did say, and this
(17:34):
piece of the identification is unmistakable, right she said the
perpetrator had smoked cigarettes throughout the attack. Now there's something
about your brother where this should have, right now set
off all kinds of warning signals. And Karen, what am
I talking about? Tim had asthma, He was born in asthmatic,
had had problems with his asthma all his life, and
(17:56):
did not smoke cigarettes. So even though the m O
was consistent throughout and police had believed all along that
the same person had committed all six rapes, Tim was
arrested and charged with the aggravated sexual assault just of Ms.
Mallen and none of the other rapes. Now here's something
I'm struggling with. Considering the nature of these crimes. Tim
(18:18):
was offered a plea bargain with no prison time. Yes,
the district attorney at that time, manned by the name
of Jim Bob Darnell, the day before trial told him,
you were facing twenty years in prison. We're gonna offer
your probation. And Tim said, I'd rather spend twenty five
years in prison before I ever admit to something I
(18:39):
did not do. And Mr Darnell very smugly said, well,
we aimed to make sure that happens if they believe
that your brother was responsible for even one of these rapes.
This is a black man in Texas accused of raping
a white woman. You think that they would have offered
(19:01):
him probation. No, not a chance in how there is
no way they would have offered him probation. And let
me just say, unlike a lot of these cases, my
parents hired a very good lawyer. We were fortunate in
that there were resources to do that. He did a
really good job of investigating, and so we knew there
(19:23):
was a police officer from the university who had told
them that they had the wrong person. That Tim was
not the person who had raped this young woman that
the Texas Tech Police Department gave him the name of
who they thought the person was. And mind you, also,
when they arrested Tim, they announced in the media, the radio, print,
(19:44):
electronic media, that they had caught the tech rapists. They
just did not want to say, oops, sorry, Tim, we
got the wrong person. The attorney, Mike Brown was very
confident that they were going to drop the charges. He'd
be found innocent because they had actually arrested another guy
who had committed rapes with the same m O. And
(20:07):
other attorneys are like, oh, yeah, that'll take care of
But they did not want to relinquish the fact that
we got him and we're going to keep it. When
that trial started, it was a media circus, and my
mom brought some of the newspaper clippings and things home.
Tech rapists, called tech rapists, all of these things. Now,
the trial begins in September. Remember this is before DNA testing,
(20:30):
so they only had prology testing, in which you can
determine blood types and whether or not the source of
any bodily fluids as a secretor meaning the blood type
can be identified in all bodily fluid is not just blood.
So the forensic examiners for the state had examined the
rape kit and had identified a Type A blood secretor
on the swab. However, the victim was a Type A
(20:54):
secretor and Tim also had Type A blood, but his
secretors status was unknown, so therefore the prology offered no
meaningful conclusions at all. They also compared foreign pubic Harris
collected from the victims to those from Tim and said
that they had similar characteristics, but that they couldn't draw
firm conclusions, so the biological evidence really offered very little
(21:16):
to work with. Corey. What else happened at trial? Michelle
Malon went on the witness stand and was asked, do
you see the man in the courtroom that you said
raped you? She said, I think that's him and Tim,
being an asthmatic that's brought up can't smoke. She never
(21:36):
knew that Tim wasn't asthmatic and couldn't smoke. The bite
that she put on the actual perpetrator's phone, there were
no bike marks on Tim. I mean, this is a
woman who's literally fighting for her life. She didn't know
whether she was going to survive this attack or not
when she bit him, so she probably meant to take
that finger clean off. How the hell would that not
(21:59):
leave a mark? And you have to remember it was
one week between when she was assaulted and when Tim
was arrested. They didn't find any bite marks on him.
So what about Tim's alibi witness testimony? Weren't there five
alibi witnesses at your brother Reggie's card game. There was
a vigorous defense with all of the alibi witnesses who
(22:21):
were very certain that Tim was there that night. They
were saying, you know, he was the studious one. He
didn't join in in the card game. They said he
told him he had a test. When my brother Reggie testified,
he was very certain and forceful that Tim did not
do this. Tim was at home, and the prosecutor said
he was being very brash, he'll say anything to protect
(22:43):
his brother. Well Reggie. When he got through testifying Mike Brown,
the attorney grabbed him and took him outside and said, Reggie,
I want you to listen to me very carefully. I
want you to go down this hallway. I want you
to go down the back steps all the way downstairs
and go out the actor. My secretary is waiting for you.
She's going to take it to the airport. You're gonna
(23:04):
get on the plane and you're not to come back
to Love the love of Police were going to charge
Reggie with one of the rapes of the Tech rapists,
just for him defending my brother. Reggie remembers vividly tim
telling him they got me, don't let him get you.
That is just fucking terrifying. Michelle. When we talked to her,
(23:24):
she told my mother in a session, I remember this
because the rape crisis counselor told me, you know, they're
going to arrest his brother too for the other rapes.
These people just don't give a shit about truth, justice
or anything. And just when you thought this couldn't get
any worse. That brings us to Jerry Wayne Johnson. It
was a Perry Mason moment when my brother's attorney, Mike Brown,
(23:49):
said who the rapist was, Jerry Wayne Johnson. Mike Brown
wanted to introduce evidence showing the similarities and all the
other but the judge denied it. He denied every time
he would try and bring those things up about Jerry Wayne.
Jonathan then pret and to hold an attorney in contempt
of court. The judge did not allow evidence that there
(24:12):
was this string of other attacks where there was this
m O of what the perpetrator was doing approaching victim's
own foot, smoking and all of the attacks. The judge
didn't allow evidence of that into the trial. And if
that evidence may have been admitted into the trial, that
would have been stronger evidence in my brother's favor, in
addition to the alibi evidence that he had absolutely not
(24:36):
to mention if DNA testing had been available to do
what it eventually did in this case. So, Karen, what
happened next? I mean, I can't imagine what all of
this was like for you and your family, because Corey
and I had a couple of the brothers still in
school at that time. My dad stayed home with them
so that they can continue school. So I was the
(24:56):
only person who actually set through that one week trial.
It was a one week trial, a full week and
I call it the Week of Hell. Started that Monday
morning and it went all the way through Friday. They
came back late Friday afternoon with that verdict. So you
were there for the verdict. What was that moment, like,
you know, took her breath away? They were out for
a long time that day, and so we were hopeful
(25:19):
because he had been offered probation, So we thought, maybe
they'll bill hung jury, maybe they'll come back with not guilty.
We knew that we had a good lawyer who had
put on the best case he could with what the
judge had allowed him to put into evidence, and that
Tim had been a good witness for himself. He was earnest,
he was forthcoming, and we had laid it all on
(25:42):
the table. But when that guilty verdict came back, it
was a gut punch. I remember I was seventeen. I
was a freshman at U T Austin, and I remember
my mom calling me telling me they convicted Tim, and
I was like how. And that weekend we all came
home except for Tim, and it was probably two am
(26:07):
in the morning, and it was very quiet, except for
my mother walking back and forth down the hallway, screaming,
swinging her hands back and forth, talking to God, saying,
why did you let them do this to him? You know,
he's not guilty, Just back and forth, back and forth.
(26:28):
And I got up and woke my dad up, and
he went to the hallway and he put his arm
around her and he said, come on, Ruby, and he
walked her to her side of the bed, and I
was standing in the hallway just looking at her. She
seemed to still be in this trance even when our
(26:50):
grandmother passed away. When my dad passed away, I didn't
see her and that much pain. And my mother always
prayed from day one, let whoever did this, let them
come forward. And decade later her prayer came true. The
(27:23):
day Tim was sentenced to five years, he was taken
into custody and put in the sales in love A County,
and there was a man across from him in another
cell who heard Tim crying, I didn't do this, Why
would you let this happen? Talking to God, and this man,
(27:43):
who happened to be Gerry Wayne Johnson said at that
point something in him told him one day he was
going to have to make it right. We believe him
on that because jail records show he was in custody
and he was in the same general area as to Tim,
so he could have heard him. And then ten years
later he actually writes letters to the judge, to the prosecutors,
(28:08):
to our defense attorney admitting his guilt, and he would
do whatever it took to clear Tim's name. It's extraordinary,
so Jerry Wayne Johnson. After the statute of limitations of
his rape that expired, he wrote two judges and the
(28:28):
prosecutor the lob A d A we mentioned before Jim
Bob Darnell, as well as to Mike Brown, that he
had committed the rape. Tim was convicted of Johnson by
this time with serial life plus years sentence, after convictions
for two of the other sexual assaults, which were almost
identical in terms of characteristics to the one that Tim
(28:49):
was convicted of. So ultimately, even though one would think
that they would admit their mistake now that the actual
perpetrator was confessing, Johnson's letters were not even acknowledged me
and while Tim remained in prison and was offered parole
but only if he would admit to guilt. When he
refused twice during his prison term, due to his extremely
(29:10):
serious asthma condition, he was found unconscious in his self.
Tim was left to suffer with this condition in a
place where the condition would only worsen and the symptoms
would obviously be exacerbated due to the various deprivations of
a Texas prison cell and Ultimately, after thirteen long years
in prison, Tim's system just couldn't take it anymore, and
(29:33):
on December two, he died in the Texas prison cell
that he never should have set foot in in the
first place. I remember when it happened because it sent
shock waves through the innocence community, and I remember feeling
(29:54):
a sense of outrage that I had not I had
not experienced that part picular emotion before, because it just
struck me as so so freaking wrong. You know that
I had heard of all sorts of wrongful convictions and
all sorts of injustices, but this one, I think he
had a lot of us really hard still does to
(30:15):
this day. And the year after Tim died, Johnson wrote
again to a supervising judge. This time the case was
moved to a different judge and rejected without comment, but eventually,
in May two thousand seven, Johnson's most recent confession letter
reached the Innocence Project of Texas and your family. At
(30:36):
the Innocence Project, we receive hundreds of letters a month,
but rarely do you receive a letter from someone admitting
their guilt and wanting to exonerate another party. So the
Innocence Project of Texas saw postumust DNA testing the case,
and Lubbock prosecutors this time cooperated. So how did all
(30:56):
of this take place? A young man by the name
of Elliott Blackburn, he was a government reporter with the
Lubbock Avalanche Journal, took a call from me about a
letter we had received and he said, I'm interested send
it to me. And I said, just so you know,
this letter is from the person who committed the rapes
and he was mentioned that trial. One week later, he
(31:18):
wrote a story in the Lubbock Avalanche Journal, and the Reporter,
as well as the Innocence Project very good attorney named
Jeff Blackburn, pushed Matt Pyle, who was the then distric
attorney at Lubbock, to do DNA testing, and the reporter
caught him on a Saturday at a softball game for
his son, and he quoted him as saying, we will
(31:40):
do whatever it takes to prove Tim Cole's guilt or innocence.
And we hadn't heard anything for months, and Elliott the
reporter called and said, Corey, I got some news and
it's big. They got the DNA test back and they've
been sitting on it for over a month. I called
(32:00):
my mother and I said, mother, Eliot's on the phone.
They got the DNA tests back, and he said, miss Session,
the DNA excludes Tim and it matches Jerry Wayne Johnson.
And my mother said, well, now you all know when
they said they found the rape kit and there was
enough to test back in January of two thousand and eight,
(32:23):
we actually celebrated then because we knew, so we were
a little bit subdued when they're like, Okay, well now
you know what I've always known. Get this the victim
in this case. Michelle now and courageously speaks and writes
about this case to raise awareness about misidentifications and wrongful convictions.
A direct quote from her, she said this at Georgetown
(32:46):
University Law. I was positive at the time that it
was him. I was shocked when I found out it
wasn't him. I joined Tim's family and working to exonerate
him because it was the right thing to do. Timothy
didn't deserve what he got. End quote. Mic Drop. Wow, Michelle,
so much respect for you. So Matt Piale, the district attorney,
(33:08):
was very much well, as far as I'm concerned, he's clear. No, no, no.
My mother said I want his good name back for
the animals of Texas history to show that Tim Cole
was innocent. So Jeff Blackburn requested a hearing in Lubbock,
knowing full well they would deny it because no deceased
person had ever had a exoneration hearing in Texas. And
(33:34):
Jeff Blackburn had used his expertise and knowledge of the
Texas Constitution and statutes to use a little known procedure
called a courte of inquiry, which allows you to seek
redress in any county in the state of Texas, regardless
of your conviction, if you can show just calls that
(33:54):
you were wrong. And in the two District Court in
Travis County, Judge Air agreed to have a hearing and
we requested that Jerry Wayne Johnson b bench warned to
the hearing. So during a two day hearing in February
two thousand nine, Johnson again confessed to the climb, this
time before a judge, before your family, and before the victim.
(34:18):
It was very surreal. I taking my brother's A couple
of them were real angry. So there were quite a
few bailiffs in the courtroom, so there were gonna be
some disorder in the court, and I remember my brother
Kevin was sitting literally on my brother Sean because Sean
went into the military, because Tim went into the military,
and he was going to jump over the bar, and
(34:41):
so he had the whole sewn down because he was
visibly shaken and emotional. But as my mother said, if
I'm not angry, no one can be angry, and no
one can be angry for me. She knew that Tim
had a greater purpose, and the greater purpose became clear,
and I one of course mentioned the Innocence Project of
(35:02):
New York joined with the Innocence Projects of Texas co
counsel on the case. And let me just say that
the Innocence Project of New York found the letter that
Tim wrote to them in asking for assistance and returned
that letter to my mother. Barrischeck, I can't say enough
about him, took time out, came and co counseled on
(35:23):
Tim because it was so important that we have finally
proven in these United States that the innocent due in
fact I in prison. But Tim, and many of his
letters to us and to my mother, he always said
I want three things, vindication, exoneration, and a full pardon.
(35:44):
The vindication came with the DNA testing. The exoneration came
through the District Court, who Judge Baard said he was
factually and morally innocent and this was the worst misca
arriage of justice he had ever seen in his entire life.
And then on March on, Texas Governor Rick Perry pardoned
(36:07):
your brother his third wish. And then soon after that,
the State of Texas passed the Timothy Cole Act, increasing
compensation paid to axonorees after their release and adding compensation
for the family of an axonoree cleared after death. Thank
you to Rodney Ellis, who was a chair of the
board of the Innocence Project of New York, who was
instrumental in getting that passed. The state also created the
(36:29):
Timothy Cole Advisory Panel on Rawful Convictions in two thousand
nine to study the prevention of rawful convictions across the stating. Ultimately,
a thirteen foot bronze statue of Tim in two thousand
fourteen was dedicated in Lubbock, depicting young Tim looking towards
Texas Tech University Law School, where he almost certainly would
have graduated and gone on to do probably incredible things
(36:53):
and in his hands on the statue or two books,
the binding of one says lest we Forget, and base
of the sculpture reads and Justice for All. Wow. And
Texas Tech University System regents voted in two thousand fifteen
to posthumously award him an honorary degree in law and
social Justice. What an incredible ending to the story. Before
(37:16):
we get to the closing of the show, is there
a call to action for the audience? Is there's something
that you'd like them to donate to our website you'd
like to go to. All of our work is focused
on the Texas Innocence Project, So the incarcerated innocence they
need all the help they can get. There are more
of them than there are people to help them. So
(37:38):
anything you can do, anything you feel called to do,
to give to the Texas Innocence Project is greatly appreciated.
Our family's mission is to continue to work on legislation
through the Texas Innocence Project because there's still some things
in the law that need to be changed. And that's
Innocence Texas dot org. That's Innocent Texas dot Org. Will
(38:01):
also put a link in our bio for people to
donate and get involved. So now, Karen and Corey, we
have a tradition here at Wrong for Conviction, which is
that the end of our show is called closing arguments.
It works like this. I first of all, thank each
of you, not just for being here today, but for
(38:21):
just being such incredible fighters and courageous humans. I'm proud
to know you and honor to have had you here today.
So thank you for that. And then I'm going to
turn my microphone off, turn my volume on my headphones
up just a little bit, kick back in my chair,
and leave your mics on, and let's close out the
(38:43):
show with any final thoughts you want to share. Who
wants to go first? And then hand the mic off
to your brother or sister, whoever it is, and then
you can take us out into the sunset. Well, I'll
go first, because my youngest brother is so eloquent, I'll
leave the final words for him. Thank you, Jason for
(39:03):
having us today and for continuing to elevate these issues.
I'm happy to be here to represent my brother and
our family and to present our story of his case.
But more than anything, I'm happy here to just let
people know that we as a family stand on the
(39:24):
shoulders of my brother and my mother, two wonderful people
who were given circumstances beyond their control but made the
best of those circumstances, and I think have made a
difference not just in the state of Texas, but in
the nation in the criminal justice system. And so my
(39:46):
final words to the listeners here today is that we
still do have one of the best criminal justice systems,
but it's just flawed. And that's okay. So I asked
each your listeners to take a moment and think about
what is it you can do to make the system better,
because there's always something that each of us can do
(40:08):
to make it just a little better. When Tim was
in prison, he received back pay from the army for
some fourteen thousand dollars. It was all deposited into his
inmate trust fund. And when his belongings came from prison
after he had died, there was just a little box
(40:29):
and there was a check from the Texas Department of
Criminal Justice Institutional Division, and it was for only thirty
six dollars and some change. And some of my siblings
were like, what in the world happened to all his money?
What happened? And I remember a couple of days had
gone by. My mother had organized all of his letters,
(40:52):
and I was at our house and I remember her
yelling Corey, Corey, come here, come here and rent room.
I said, what is it? And she was throwing some
papers across her bed, and she said, he gave it away,
My baby gave it all away. And there were receipts
(41:13):
from the Catholic charities feed the children. He gave the
bulk of his money to those in need. He knew
he couldn't help himself, but he still had the power
to help others. There are many people like Tim who
are still in prison waiting to be cleared. In Texas,
(41:35):
there are some plus prisons, more than sixty tho inmates.
The Texas Prosecutor County Day's Association, they say that the
amount of innocent people in prison is as high as
ten That's a lot of people. We have only scratched
the surface. My mother, when she found out that the
(41:59):
statue was going to be up, a reporter said, Missession,
how do you feel. Did you want to sue Lubbock
for this? And she said, what I want no man
can give, and what I need is for them to
never forget. So the Baton is on us to make
sure people never forget. We want to make sure that
(42:19):
this does not happen to another family, that another man,
another woman does not go to prison after serving his country,
after just doing right, and the entire judicial system turn
its back on him because they need a conviction. So
we're thankful. We are grateful that he was cleared. But
(42:42):
as my mom said, I never would have thought that
on July one, nineteen six, that God would have chose
me to be the vessel for change in the criminal
justice system in Texas. My mother when she first met Michelle,
the rape victim, Michelle was crying on the front steps
of my house, and my mother told her stop crying.
(43:05):
You have nothing to be sorry for. You were a
victim just as tim as they was. And Michelle admired
some heartshaped ear rings my mother had, and we had
dinner at my house for about three hours there and
it was like we were old friends. And when Michelle
was leaving, my mother grabbed her arm and said give
me a hand, and she put her heart shaped ear
(43:28):
rings in Michelle's hand and she said, oh, miss Session,
I can't take this. She said, no, no, you give
people their flowers while they're alive, so we will try
and make sure we can give as many people their
flowers in hopes of getting them exonerated, keeping them from
going into the criminal justice system as best we can.
(43:55):
Thank you for listening to Ron Conviction. I'd like to
thank our production team Connor Hall, Justin Golden, Jeff Claverne,
and Kevin Wardis with research by Lila Robinson. The music
in this production was supplied by three time OSCAR nominated
composer Jay Ralph. Be sure to follow us on Instagram
at Wrongful Conviction, on Facebook at Wrongful Conviction podcast, and
(44:16):
on Twitter at wrong Conviction, as well as at Lava
for Good. On all three platforms, you can also follow
me on both TikTok and Instagram at It's Jason flom
Raleful Conviction is the production of Lava for Good Podcasts
and association with Signal Company Number one
Hosts And Creators
Lauren Bright Pacheco
Maggie Freleng
Jason Flom
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