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