Judge clears dead Texas man of rape conviction

[February 07, 2009]  AUSTIN, Texas (AP) -- A man who died in prison while serving time for a rape he didn't commit was cleared Friday by a judge who called the state's first posthumous DNA exoneration "the saddest case" he'd ever seen.

State District Judge Charles Baird ordered Timothy Cole's record expunged.

Cole was convicted of raping a Texas Tech University student in Lubbock in 1985 and was sentenced to 25 years in prison. He died in 1999 at age 39 from asthma complications.

DNA tests in 2008 connected the crime to Jerry Wayne Johnson, who is serving life in prison for separate rapes. Johnson testified in court Friday that he was the rapist in Cole's case and asked the victim and Cole's family to forgive him.

"I'm responsible for all this. I'm truly sorry for my pathetic behavior and selfishness. I hope and pray you will forgive me," Johnson said.

The Innocence Project of Texas said Cole's case was the first posthumous DNA exoneration in state history.

"I have his name," Cole's mother, Ruby Cole Session, said after the hearing. "That's what I wanted."

Cole and his relatives for years claimed he was innocent, but no one believed them until evidence from the original rape kit was tested for DNA. Cole had refused to plead guilty before trial in exchange for probation, and while in prison, he refused to admit to the crime when it could have earned him release on parole.

The Innocence Project pressed for a hearing to start the process of clearing Cole's name. Cole's family now wants Gov. Rick Perry to issue a formal pardon.

Michele Mallin, the rape victim in the case who originally identified Cole as her attacker, said she felt guilty that the wrong man went to prison. The Associated Press does not typically identify rape victims but Mallin, now 44, has come forward publicly to help clear Cole's name.

Confronting Johnson after his testimony, Mallin told him she was "going to try to forgive you, but it's going to take a long hard time. ... No woman deserves it. No person deserves what that man got. He could have been a father, he could have been a grandfather right now."

Mallin picked Cole out of a photo lineup that included at least six other pictures. All were standard jail mug shots except for Cole's photo, which was a Polaroid. Mallin later identified Cole in a live lineup and again at trial.

She said Lubbock officials had portrayed Cole as a violent criminal and a thug while investigating her case. The Lubbock County district attorney's office did not participate in the hearing.

Gary Wells, an Iowa State University professor and expert in witness testimony, said Friday that improperly conducted lineups could be manipulated and that witnesses tend to select the person who looks most like the perpetrator.

"If the real perpetrator is not in the lineup, it's a horrible strategy," Wells said.

[Associated Press; By JIM VERTUNO]

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