Speaker 1: From the end of nineteen eighty four through the spring
Speaker 1: of eighty five, a serial rapist preyed on the campus
Speaker 1: of Texas Tech. Each incident was reported with eerily similar details,
Speaker 1: including the fifth attack on a twenty year old student
Speaker 1: who helped put together a composite sketch and underwent a
Speaker 1: rape kit. Meanwhile, Tim Cole, a new student at Texas Tech,
Speaker 1: arrived in the spring semester after the serial rapes had
Speaker 1: already begun. From a passing glance, a plain closed detector
Speaker 1: decided that Tim resembled the composite sketch. A suggestive photo
Speaker 1: lineuplet to Tim's misidentification, arrest and sexual assault charges solely
Speaker 1: for the fifth attack in the series. An additional rape
Speaker 1: occurred the day after he was taken into custody. Further,
Speaker 1: the rapist had smoked during all of the attacks, while Tim,
Speaker 1: a chronic asthma 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 en sculpting details, Tim was
Speaker 1: convicted on the victim's shaky testimony of quote, I think
Speaker 1: that's him after the statute of limitations expired, the serial
Speaker 1: rapist confessed but was ignored. DNA testing would eventually prove
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 gonna hear a story that is unlike any we've
Speaker 1: ever told on this show. And I have to be honest,
Speaker 1: as I was reviewing the research on this case that
Speaker 1: I've known about for a long time this morning, I'm
Speaker 1: not a very emotional guy. I was fighting back tears
Speaker 1: and soon you'll understand why. But there's a lot of
Speaker 1: hope in this story too, and I hope that you'll
Speaker 1: take that away from this episode and from the extraordinary
Speaker 1: people that we have the privilege of having on the
Speaker 1: show with us today, and without further ado, I'm going
Speaker 1: to introduce the brother and sister of the man who
Speaker 1: was wrongfully convicted. His name was Tim Cole. He's not
Speaker 1: with us anymore, but his brother and sister are very
Speaker 1: much alive and are absolute warriors for justice. So Karen,
Speaker 1: we're going to introduce you first. Karen Kinnard is a
Speaker 1: shareholder in the Government Law and Policy Group at Greenbrig
Speaker 1: Scharig and she does quite a bit of pro bono
Speaker 1: innocence work. So Karen, welcome to Wrongful Conviction.
Speaker 2: Thank you. Jason's great to be here today.
Speaker 1: And we also have Tim Cole's brother here, Corey Session,
Speaker 1: who's vice president of the Innocence Project Texas. Corey, I'm
Speaker 1: just super happy and honored to have you on a
Speaker 1: show today.
Speaker 3: Oh, thank you for having me.
Speaker 1: And during our time today, we're going to get to
Speaker 1: the extraordinary work that each of you are doing and
Speaker 1: how much that would have meant to your brother. I
Speaker 1: only wish he was a lot to see it, honestly.
Speaker 1: And if we look back in time to back in
Speaker 1: nineteen eighty five, your brother, Tim Cole was in his
Speaker 1: mid twenties. He previously attended two years of college and
Speaker 1: then join the Army, where he spent the next two
Speaker 1: years before going back to school in nineteen eighty five,
Speaker 1: attending Texas Tech and set to major in political science.
Speaker 1: So first, before we go any further, can each of you.
Speaker 1: Just tell us a little about what your childhood was
Speaker 1: like and about your brother Tim's early life, your memories
Speaker 1: of him growing up. Karen, let's go to you first.
Speaker 4: Well, Tim was the oldest child in our family. We
Speaker 4: are a blended family, mother, stepfather, seven children, six boys,
Speaker 4: and I'm the only girl in that family. Wow, Tim's
Speaker 4: the oldest and I'm the second oldest. My memories of
Speaker 4: our family is that, you know, it was a happy childhood.
Speaker 2: We were fortunate.
Speaker 4: We had two hardworking, loving parents who tried to do
Speaker 4: everything they could to give us what I call a
Speaker 4: normal childhood. We grew up on a street called Hillview Drive,
Speaker 4: and there were like two other families with seven kids
Speaker 4: on He'll View Drive, and lots of other families with
Speaker 4: other kids. Tim was very well liked. He loved basketball.
Speaker 4: He took being a big brother very seriously. He was
Speaker 4: very responsive and responsible for us. I think all of
Speaker 4: us when he first went off to college remember receiving
Speaker 4: letters from him. He liked to write us letters, give
Speaker 4: us advice, check in on us, make sure we were
Speaker 4: on the right track. And those are some of the
Speaker 4: fondest memories I have of him, of him just being
Speaker 4: a guardian of us and Corey.
Speaker 1: I understand he's 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
Speaker 1: town or maybe even the state, to have committed such
Speaker 1: a horrific crime. Is that fair to say?
Speaker 3: Absolutely? Tim was a quiet person. He was a peacemaker.
Speaker 3: I'll tell you one of the memories I have. I
Speaker 3: think I may have been six or seven years old,
Speaker 3: but I remember this vividly, and this will tell you
Speaker 3: the type person Tim was. It's a summer night. We
Speaker 3: were outside in front of our house and there had
Speaker 3: to be probably fifteen kids out there, and the topic
Speaker 3: people were talking about was what do you have to
Speaker 3: do to get to heaven? And they were going around
Speaker 3: the circle, Yeah, you got to do this, you have
Speaker 3: to do that. Well, Tim was sitting at the edge
Speaker 3: of the driveway with his hands around his knees. Tim's
Speaker 3: nickname was Ears, and one of the older kids said, Ears,
Speaker 3: what you think and it was very quiet, and my
Speaker 3: brother Tim said three things, just do right, and that
Speaker 3: was a pause. Then all of a sudden, that was
Speaker 3: an uproar up. Yeah, yeah, yeah, okay, yeah, leave it
Speaker 3: to ears to make it simple and keep it simple,
Speaker 3: just do right.
Speaker 1: Yeah. I've never heard it said in such quiet, simple,
Speaker 1: sort of eloquent terms. But what a good thing to
Speaker 1: be known for or remembered by. And he lived it right.
Speaker 1: And he was not just talking to talk. He was
Speaker 1: walking the walk, serving his country, serving his family. I
Speaker 1: would say, right, yeah.
Speaker 4: Because he joined the army specifically to help our family.
Speaker 4: I mean we were seven kids and we were starting
Speaker 4: to have anywhere from three to four kids in college.
Speaker 4: He called me one night and said, you know, I'm
Speaker 4: doing this because I know I can get some college benefits.
Speaker 4: And he said, I want to help mother and my stepdad.
Speaker 4: He was always about trying to figure out how to
Speaker 4: help us, how to help the family, how to.
Speaker 2: Help all of us.
Speaker 1: Yeah, he was serving his family, his community, and his country.
Speaker 1: And that brings us to the fall of nineteen eighty
Speaker 1: four through eighty five, when a rapist had been terrorizing
Speaker 1: the campus of Texas Tech and Love It, having already
Speaker 1: victimized four women with the same mo each time.
Speaker 3: Right.
Speaker 1: The women had been taken from parking lots near campus,
Speaker 1: driven to desolate areas and raped. The assailant usually smoked
Speaker 1: cigarettes during the assaults and then would flee on foot. Now,
Speaker 1: on March twenty fourth, nineteen eighty five, the fifth abduction
Speaker 1: and rape involved a young student named Michelle Murray Mallin,
Speaker 1: just twenty years old at the time. Now, normally we
Speaker 1: do not mention sexual assault survivors and names here. However,
Speaker 1: Michelle is very vocal and open about her story. She
Speaker 1: was parking at a lot across from her dorm when
Speaker 1: a man approached asking for help to jumpstart his car.
Speaker 1: When she told him that she and hevity jumper cables,
Speaker 1: the man reached in through her window and unlocked the
Speaker 1: car door. Miss Mallin screamed and bit his thumb, but
Speaker 1: the man held a knife to her throat while he
Speaker 1: moved into the driver's seat and drove her to a
Speaker 1: vacant field outside the town, where he forced her to
Speaker 1: perform oral sex and then raped her. He then drove
Speaker 1: the car back to Lubbock, where he took two dollars
Speaker 1: in cash, a ring, and a watch from Ms. Mallin
Speaker 1: before leaving on foot, as he had done in all
Speaker 1: the other crimes. Ms Mallan called the police to report
Speaker 1: the attack. A rape kit was done, and she helped
Speaker 1: investigators with a composite sketch. Now, Tim once again was
Speaker 1: a student at Texas Tech at the time, but he
Speaker 1: was home on the night of the attack, studying. His
Speaker 1: brother was hosting a card game. So there were five
Speaker 1: different alibi witnesses. All of them were there with Tim.
Speaker 1: I mean, this story obviously should have ended right there,
Speaker 1: but it didn't. So, Corey, were you the one that
Speaker 1: was hosting the card game? I was not.
Speaker 3: I was still in high school. But my brother, Reggie
Speaker 3: was the one who was also at Texas Tech at
Speaker 3: that time, who was hosting a card game. Like you said,
Speaker 3: the atmosphere of Texas Tech, there's a rapist loose on camp.
Speaker 3: Parents were withdrawing their children out of school because they
Speaker 3: couldn't catch this person. So the temperature was high. We've
Speaker 3: got to find someone. Tim had a car. One of
Speaker 3: their roommates worked at the Mister Gaddy's Pizza and his
Speaker 3: roommate called him to come pick him up, and he said, here,
Speaker 3: I'll go pick you up. Mind you, this is daytime.
Speaker 3: He went down there to pick him up, saw a
Speaker 3: young lady walking outside paid no attention, went inside. His
Speaker 3: roommate came out and said, hey, yours, I'm not going
Speaker 3: to be able to get off right away. Can you
Speaker 3: come back? He said yeah. Well, that time that young
Speaker 3: lady was sitting in the restaurant, Tim got up, walked
Speaker 3: back to his car, got in his car. That young
Speaker 3: lady was walking down the sidewalk and she had made
Speaker 3: eye contact with him while in the restaurant, and she
Speaker 3: looked at him. So he let down his window and said,
Speaker 3: do you need a ride somewhere? And she said no,
Speaker 3: And he said are you sure and she said yes.
Speaker 3: He said, well here, he pulled out his drivers license.
Speaker 3: He said, my name is Tim Cole, and he showed
Speaker 3: her his driver's license and then he went and pulled
Speaker 3: out his Texas Tech ID. He said, you do not
Speaker 3: be afraid of me. I go to Texas Tech. And
Speaker 3: she said okay, and he said you sure you don't
Speaker 3: need anything? She said no, He said okay, and he
Speaker 3: drove off. Well, that lady was a undercover police officer
Speaker 3: named Joanna Bagbee and she immediately reported to her supervisors
Speaker 3: that's him. And the supervisors says, how do you know
Speaker 3: that's him? She said, because he looks like the sketch
Speaker 3: that was it. Now, Tim had reported his wallet being stolen,
Speaker 3: and they had no picture of Tim in the system,
Speaker 3: so they found his name that he had reported, so
Speaker 3: they knew his address. So they went to his address,
Speaker 3: knocked on the door and told him, Hey, we may
Speaker 3: have a witness who knows who sole your wallet, but
Speaker 3: we need to make sure that you are the person.
Speaker 3: Can we get a picture of you? And he said sure,
Speaker 3: So they took a polaroid picture outside of his apartment,
Speaker 3: and that's the one that they put in the six pack.
Speaker 3: One polaroid and five other black and white photos.
Speaker 1: One polaroid. I just want to repeat that in five
Speaker 1: other black and white photos. Let's just pause there for
Speaker 1: a second, shall we, because this is one of those
Speaker 1: techniques that police use that it's highly suggested to make
Speaker 1: one photo stand out from the others. Other cases we've
Speaker 1: seen there was only one person in handcuffs, or again
Speaker 1: in another case, there was a single picture in a
Speaker 1: photo array that was circled with red, like a red marker.
Speaker 3: So they took the photo, they put it in the lineup,
Speaker 3: and Michelle vividly remembers being shown the spread and she
Speaker 3: pointed at Tim and said, I think that's him, but
Speaker 3: the detective wrote near the photo, that's him, and that's
Speaker 3: what they ran with. Came back to his apartment. They
Speaker 3: arrested Tim. Reggie's as he heard Tim say, now, y'all
Speaker 3: got the wrong person. I haven't raped anybody, and the
Speaker 3: police took him and he told Reggie call mother that night.
Speaker 3: My mom flew to Lovebook to bond Tim out of jail,
Speaker 3: took him back home to Fort Worth, and she got
Speaker 3: a phone call from the attorney she had retained, a
Speaker 3: gentleman by the name of Mike Brown, and he said, Missession,
Speaker 3: I was calling to see if you guys made it home. Okay.
Speaker 3: She said, yeah, we did. He said, well, I got
Speaker 3: some bad news. There's been another rape today and she said, oh, Mike,
Speaker 3: I'm sorry to hear that. He said, well, not only that,
Speaker 3: they picked out Tim again and there was no way
Speaker 3: possible that he could have committed the rape.
Speaker 1: Right He was either in police custody or in Fort
Speaker 1: Worth when that day's rape had occurred, but he was
Speaker 1: identified nonetheless.
Speaker 3: When it comes to eyewitness identification, the best type of
Speaker 3: eyewitness identification to perform is a double blind procedure, which
Speaker 3: is not done at that time and is still not
Speaker 3: done in a lot of cases.
Speaker 1: Yeah, a double blind procedure is a very straightforward way
Speaker 1: of removing suggestion from the process, where the person administering
Speaker 1: the procedure will show the photos one at a time
Speaker 1: and not say anything, not make any suggestive comments. You
Speaker 1: simply say the person who committed the crime may or
Speaker 1: may not be in this line that I'm about to
Speaker 1: show you, and then show the person the photos while
Speaker 1: keeping your mouth shut. Because even a well meaning interviewer,
Speaker 1: if they have their own preconceived notion about who it
Speaker 1: is they're going to steer somebody. It could be subconsciously,
Speaker 1: and it might be something as subtle but still powerful
Speaker 1: as well. Keep trying, or you're doing a good job.
Speaker 1: I know how difficult is this for you, but maybe
Speaker 1: you want to take one more shot at Anything like
Speaker 1: that can be the difference between life and death for somebody,
Speaker 1: and between getting the right or the wrong person or
Speaker 1: nobody at all. And the resource has been done has
Speaker 1: shown that simple changes like instituting double blinds drastically reduces
Speaker 1: the incidences rompall identifications. While not and this is critical,
Speaker 1: While not reducing the instances of correct identifications right. So
Speaker 1: it's like there's literally only an upside here when the
Speaker 1: Innocis Project is leading the charge to try to institute
Speaker 1: double blind ideas as policy across the country. And for
Speaker 1: your brother's sake, I wish this had been the policy
Speaker 1: back then, not to mention the fact that he was
Speaker 1: in police custody and therefore, I mean, he couldn't have
Speaker 1: been in two places at once. He could not have
Speaker 1: committed the sixth rape, and they knew that.
Speaker 4: You also want to remember, the rapes happened before Tim
Speaker 4: got to Lubbock. The rapes hap started happening in the
Speaker 4: fall of nineteen eighty four. Tim didn't get to Lubock
Speaker 4: until the spring semester started in mid January of nineteen
Speaker 4: eighty five. And there were several of the victims who
Speaker 4: did not pick him out of any photo array or
Speaker 4: any of the live lineups. But the police wants that
Speaker 4: undercover officer said those words of that's him, became convinced
Speaker 4: 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 Mallen
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.
Speaker 2: It drastically changed Reggie's life.
Speaker 4: He has felt responsible for a long time for everything
Speaker 4: that happened to Tim, and it took him over twenty
Speaker 4: five years, took him a lot of therapy to finally
Speaker 4: recognize that it wasn't his fault. He's done fine now,
Speaker 4: but took him a long long time.
Speaker 1: So the investigation was a bad mockery of an investigation.
Speaker 1: I would say the description, of course, had some glaring
Speaker 1: errors in it as well. When I say that the
Speaker 1: victim who's white, and we know that cross racial identifications
Speaker 1: are the most error prone, they're less accurate than guessing.
Speaker 1: And yes, you heard me correctly, and that's been proven
Speaker 1: in the study after study so she was white, and
Speaker 1: she described her attacker to police as a young African
Speaker 1: American man with bug eyes. Did your brother have bug eyes? No? Okay?
Speaker 1: And he was under six feet tall. The attacker, according
Speaker 1: to her initial description, wearing yellow shirt and sandals. How
Speaker 1: tall was Tim and did he own any kind of
Speaker 1: clothing such as.
Speaker 3: That Tim stood six foot one inch. The victim recounted
Speaker 3: that the person wore a yellow terry cloth shirt, and
Speaker 3: she remembers it because she always hated terry cloth shirts.
Speaker 3: They did collect a yellow shirt from my brother's possessions, however,
Speaker 3: it was not a terry cloth shirt.
Speaker 1: And she didn't give a lot of other details. I mean,
Speaker 1: the poor woman was obviously traumatized. But she did say,
Speaker 1: and this piece of the identification is unmistakable, right she
Speaker 1: said the perpetrator had smoked cigarettes throughout the attack. Now
Speaker 1: there's something about your brother where this should have, right
Speaker 1: now set off all kinds of warning signals, Karen, What
Speaker 1: am I talking about?
Speaker 4: Tim had asthma, He was born an asthmatic, had had
Speaker 4: problems with his asthma all his life, and did not
Speaker 4: smoke cigarettes.
Speaker 1: So even though them was consistent throughout and police had
Speaker 1: believed all along that the same person had committed all
Speaker 1: six rapes. Tim was arrested and charged with the aggravated
Speaker 1: sexual assault just of Miss Mallin and none of the
Speaker 1: other rapes. Now here's something I'm struggling with. Consider the
Speaker 1: nature of these crimes. Tim was offered a plea bargain
Speaker 1: with no prison time.
Speaker 3: Yes, the district attorney at that time, man by the
Speaker 3: name of Jimbob Darnel, the day before trial, told him,
Speaker 3: you were facing twenty five years in prison. We're going
Speaker 3: to offer you probation. And Tim said, I'd rather spend
Speaker 3: twenty five years in prison before I ever admit to
Speaker 3: something I did not do. And mister Darnell very smugly said, well,
Speaker 3: we aim to make sure that happens.
Speaker 1: If they believe that your brother was responsible for even
Speaker 1: one of these rapes. This is a black man in
Speaker 1: Texas accused of raping a white woman. Do you think
Speaker 1: that they would have offered him probation.
Speaker 2: No, not a chance in hell.
Speaker 4: There is no way they would have offered him probation.
Speaker 4: And let me just say, unlike a lot of these cases,
Speaker 4: my parents.
Speaker 2: Hired a very good lawyer.
Speaker 4: We were fortunate in that there were resources to do that.
Speaker 4: He did a really good job of investigating, and so
Speaker 4: we knew there was a police officer from the university
Speaker 4: who had told them that they had the wrong person,
Speaker 4: that Tim was not the person who had raped this
Speaker 4: young woman, that the Texas Tech Police Department gave him
Speaker 4: the name of who they thought the person was.
Speaker 3: And mind you, also, when they arrested Tim, they announced
Speaker 3: in the media, the radio, print, electronic media, that they
Speaker 3: had caught the tech rapists. They just did not want
Speaker 3: to say, oops, sorry, Tim, we got the wrong person.
Speaker 3: The attorney, Mike Brown, was very confident that they were
Speaker 3: going to drop the charges. He'd be found innocent because
Speaker 3: they had actually arrested another guy who had committed rapes
Speaker 3: with this same mo and other atturneyers were like, oh yeah,
Speaker 3: that'll be taking care, but they did not want to
Speaker 3: relinquish the fact that we got him and we're going
Speaker 3: to keep it. When that trial started, it was a
Speaker 3: media circus, and my mom brought some of the newspaper
Speaker 3: clippings and things home tech rapists, called tech rapists, all
Speaker 3: of these things.
Speaker 1: Now, the trial begins in September of nineteen eighty six.
Speaker 1: Remember this is before DNA testing, so they only had
Speaker 1: erology testing, in which you can determine blood types and
Speaker 1: whether or not the source of any bodily fluids as
Speaker 1: a secretor, meaning the blood type can be identified in
Speaker 1: all bodily fluids, not just blood. So the forensic examiners
Speaker 1: for the state had examined the rape kit and had
Speaker 1: identified a Type A blood secretor on the swab. However,
Speaker 1: the victim was a Type A secretor and Tim also
Speaker 1: had Type A blood, but his secretor's status was unknown,
Speaker 1: so therefore the yrology offered no meaningful conclusions at all.
Speaker 1: They also compared foreign pubic hairs collected from the victims
Speaker 1: to those from Tim and said that they had similar characteristics,
Speaker 1: but that they couldn't draw firm conclusions, so the biological
Speaker 1: evidence really offered very little to work with Corey. What
Speaker 1: else happened at trial?
Speaker 3: Michelle Mallin went on the witness stand and was asked,
Speaker 3: do you see the man in the courtroom that you
Speaker 3: said raped you? She said, I think That'sim and Tim
Speaker 3: being an asthmatic that's brought up can't smoke. She never
Speaker 3: knew that Tim was an asthmatic and couldn't smoke. The
Speaker 3: bite that she put on the actual perpetrator's phone. There
Speaker 3: were no bite marks on Tim.
Speaker 1: I mean, this is a woman who's literally fighting for
Speaker 1: her life. She didn't know whether she was going to
Speaker 1: survive this attack or not when she bit him, so
Speaker 1: she probably meant to take that finger clean off. How
Speaker 1: the hell would that not leave a mark?
Speaker 4: And you have to remember it was one week between
Speaker 4: when she was assaulted and when Tim was arrested. They
Speaker 4: 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.
Speaker 4: There was a vigorous defense with all of the alibi
Speaker 4: witnesses who were very certain that Tim was there that night.
Speaker 4: They were saying, you know, he was the studious one.
Speaker 4: He didn't join in the card game. They said he
Speaker 4: told him he had a test.
Speaker 3: When my brother Reggie testified, he was very certain and
Speaker 3: forceful that Tim did not do this. Tim was at home,
Speaker 3: and the prosecutor said he was being very brash, He'll
Speaker 3: say anything to protect his brother, Well Reggie. When he
Speaker 3: got through testifying, Mike Brown, the attorney grabbed him and
Speaker 3: took him outside and said, Reggie, I want you to
Speaker 3: listen to me very carefully. I want you to go
Speaker 3: down this hallway. I want you to go down the
Speaker 3: back steps, all the way downstairs and go out the back.
Speaker 3: My secretary is waiting for you. She's going to take
Speaker 3: it to the airport. You're gonna get on the plane
Speaker 3: and you're not to come back to Love the Love
Speaker 3: of police were going to charge Reggie with one of
Speaker 3: the rapes of the Tech rapists.
Speaker 2: Just for him defending my brother.
Speaker 3: Reggie remembers vividly tim telling him they got me, don't
Speaker 3: let them get you.
Speaker 1: That is just fucking terrifying.
Speaker 3: Michelle, when we talked to her, she told my mother
Speaker 3: in a session, I remember this because the rape crisis
Speaker 3: counselor told me. You know, they're going to arrest his
Speaker 3: 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.
Speaker 3: It was a Perry Mason moment when my brother's attorney,
Speaker 3: Mike Brown said who the rapist was? Jerry Wayne Johnson.
Speaker 3: Mike Brown wanted to introduce evidence showing the similarities and
Speaker 3: all the other but the judge denied it. He denied
Speaker 3: every time he would try and bring those things up
Speaker 3: about Jerry Wayne Johnson then pretting to hold an attorney
Speaker 3: in contempt of court.
Speaker 4: The judge did not allow evidence that there was this
Speaker 4: string of other attacks where there was this mo of
Speaker 4: what the perpetrator was doing, approaching victims on foot, smoking
Speaker 4: in all of the attacks. The judge didn't allow evidence
Speaker 4: of that into the trial. And if that evidence may
Speaker 4: have been admitted into the trial, that would have been
Speaker 4: stronger evidence in my brother's favor, in addition to the
Speaker 4: alibi evidence that.
Speaker 1: He had absolutely not to mention if DNA testing had
Speaker 1: been available to do what it eventually did in this case. So, Karen,
Speaker 1: what happened next? I mean, I can't imagine what all
Speaker 1: of this was like for you and your family.
Speaker 4: Because Corey and I had a couple other brothers still
Speaker 4: in school at that time. My dad stayed home with
Speaker 4: them so that they could continue school.
Speaker 2: So I was the.
Speaker 4: Only person who actually sat through that one week trial.
Speaker 4: Was a one week trial, a full week, and I
Speaker 4: call it the week A hell started that Monday morning
Speaker 4: and it went all the way through Friday. They came
Speaker 4: back late Friday afternoon with that verdict.
Speaker 1: So you were there for the verdict. What was that moment?
Speaker 2: Like, you know, took her breath away.
Speaker 4: They were out for a long time that day, and
Speaker 4: so we were hopeful because he had been offered probation,
Speaker 4: so we thought, maybe they'd bill hung jury, maybe they'll
Speaker 4: come back with not guilty.
Speaker 2: We knew that we.
Speaker 4: Had a good lawyer who had put on the best
Speaker 4: case he could with what the judge had allowed him
Speaker 4: to put into evidence, and that Tim had been a
Speaker 4: good witness for himself. He was earnest, he was forthcoming,
Speaker 4: and we had laid it all on the table. But
Speaker 4: when that guilty verdict came back, it was a gut punch.
Speaker 3: I remember I was seventeen. I was a freshman at
Speaker 3: U T Austin, and I remember my mom calling me
Speaker 3: telling me they convicted Tim, and I was like how.
Speaker 3: And that weekend we all came home except for Tim,
Speaker 3: and it was probably two am in the morning, and
Speaker 3: it was very quiet, except for my mother walking back
Speaker 3: and forth down the hallway, screaming, swinging her hands back
Speaker 3: and forth, talking to God saying why did you let
Speaker 3: them do this to him. You know, he's not guilty,
Speaker 3: just back and forth, back and forth. And I got
Speaker 3: up and woke my dad up, and he went to
Speaker 3: the hallway and he put his arm around her and
Speaker 3: he said, come on, Ruby, and he walked her to
Speaker 3: her side of the bed, and I was standing in
Speaker 3: the hallway just looking at her. She seemed to still
Speaker 3: be in this trance even when our grandmother passed away.
Speaker 3: When my dad passed away, I didn't see her in
Speaker 3: that much pain. And my mother always prayed from day one,
Speaker 3: let whoever did this, let them come forward. And decades
Speaker 3: later her prayer came true. The day Tim was sentenced
Speaker 3: to twenty five years, he was taken into custody and
Speaker 3: put in the sales in love A County, and there
Speaker 3: was a man across from him in another sale who
Speaker 3: heard Tim crying, I didn't do this, Why did you
Speaker 3: let this happen? Talking to God, and this man, who
Speaker 3: happened to be Jerry Wayne Johnson said at that point
Speaker 3: something in him told him one day he was going
Speaker 3: to have to make it right. We believe him on
Speaker 3: that because jail records show he was in custody and
Speaker 3: he was in the same general area as Tim he
Speaker 3: could have heard him. And then ten years later he
Speaker 3: actually writes letters to the judge, to the prosecutors, to
Speaker 3: our defense attorney admitting his guilt and he would do
Speaker 3: whatever it took to clear Tim's name.
Speaker 1: It's extraordinary, so Jerry Wayne Johnson. In nineteen ninety five,
Speaker 1: after the statute of limitations of his nineteen eighty five
Speaker 1: rape had expired, he wrote to judges and the prosecutor
Speaker 1: the Lubblic DA we mentioned before, Jim Bob Darnell, as
Speaker 1: well as to Mike Brown, that he had committed the
Speaker 1: rape Tim was convicted of. Johnson by this time was
Speaker 1: serving a life plus ninety ninety 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. While
Speaker 1: Tim remained in prison and was offered parole but only
Speaker 1: if he would admit to guilt. When he refused twice
Speaker 1: during his prison term due to his extremely serious asthma condition,
Speaker 1: he was found unconscious in his cell. Tim was left
Speaker 1: to suffer with this condition in a place where the
Speaker 1: condition would only worsen and the symptoms would obviously be
Speaker 1: exacerbated due to the various deprivations of a Texas prison cell,
Speaker 1: and ultimately, after thirteen long years in prison, Tim's system
Speaker 1: just couldn't take it anymore, and on December two, nineteen
Speaker 1: ninety nine, he died in the Texas prison cell that
Speaker 1: he never should have set foot in in the first place.
Speaker 1: I remember when it happened because it sent shockwaves through
Speaker 1: the innocence community, and I remember feeling a sense of
Speaker 1: outrage that I had not I had not experienced thaticular
Speaker 1: emotion before, because it just struck me as so so
Speaker 1: freaking wrong. You know that I had heard of all
Speaker 1: sorts of wrongful convictions and all sorts of injustices, but
Speaker 1: this one, I think hit a lot of us really hard.
Speaker 1: Still does to this day. And the year after Tim died,
Speaker 1: Johnson wrote again to a supervising judge. This time the
Speaker 1: case was moved to a different judge and rejected without comment,
Speaker 1: but eventually, in May two thousand and seven, Johnson's most
Speaker 1: recent confession letter reached the Innocence Project of Texas and
Speaker 1: your family.
Speaker 3: At the Innocence Project, we received hundreds of letters a month,
Speaker 3: but rarely do you receive a letter from someone admitting
Speaker 3: their guilt and wanting to exonerate another party.
Speaker 1: So the Innisis Project of Texas saw posthumous DNA testing
Speaker 1: the case, and Lublic prosecutors this time cooperated. So how
Speaker 1: did all of this take place?
Speaker 3: A young man by the name of Elliott Blackburn, he
Speaker 3: was a government reporter with the Lubbock Avalanche Journal, took
Speaker 3: a call from me about a letter we had received
Speaker 3: and he said, I'm interested send it to me. And
Speaker 3: I said, just so you know, this letter is from
Speaker 3: the person who committed the rapes, and he was mentioned
Speaker 3: that trial. One week later he wrote a story in
Speaker 3: the Lubbock Avalanche Journal and the Reporter, as well as
Speaker 3: the Innocence Project very good attorney named Jeff Blackburn, pushed
Speaker 3: Matt Pyle, who was the then district attorney at Lubbock,
Speaker 3: to do DNA testing, and the reporter caught him on
Speaker 3: a Saturday at a softball game for his son, and
Speaker 3: he quoted him as saying, we will do whatever it
Speaker 3: takes to prove Tim Cole's guilt or innocence, and we
Speaker 3: hadn't heard anything for months, and Elliott, the reporter called
Speaker 3: and said, Corey, I got some news and it's big.
Speaker 3: They got the DNA test back and they've been sitting
Speaker 3: on it for over a month. I called my mother
Speaker 3: and I said, mother, Elliot's on the phone. They got
Speaker 3: the DNA test back and he said, missession. The DNA
Speaker 3: excludes Tim and it matches Jerry Wayne Johnson. And my
Speaker 3: mother said, well, now you all know when they said
Speaker 3: they found the rape kit and there was enough to
Speaker 3: test back in January of two thousand and eight, we
Speaker 3: actually celebrated then because we knew, so we were a
Speaker 3: little bit subdued when they're like, Okay, well now you
Speaker 3: know what I've always known.
Speaker 1: Get this. The victim in this case, Michelle Mallen courageously
Speaker 1: speaks and writes about this case to raise awareness about
Speaker 1: misidentifications and wrong for convictions. A direct quote from her,
Speaker 1: she said this at Georgetown University Law. I was positive
Speaker 1: at the time that it was him. I was shocked
Speaker 1: when I found out it wasn't him. I joined Tim's
Speaker 1: family and working to exonerate him because it was the
Speaker 1: right thing to do. Timothy didn't deserve what he got
Speaker 1: end quote might drop. Wow, Michelle, so much respect for you.
Speaker 3: So Matt Pyle, the district attorney, was very much well,
Speaker 3: as far as I'm concerned, he's clear. No no, no no,
Speaker 3: My mother said, I want his good name back for
Speaker 3: the annals of Texas history to show that Tim Cole
Speaker 3: was innocent. So Jeff Blackburn requested a hearing in Lubbock,
Speaker 3: knowing full well they would deny it because no deceased
Speaker 3: person had ever had a exoneration hearing Texas, and Jeff
Speaker 3: Blackburn had used his expertise and knowledge of the Texas
Speaker 3: Constitution and statues to use a little known procedure called
Speaker 3: a court of inquiry, which allows you to seek redress
Speaker 3: in any county in the state of Texas, regardless of
Speaker 3: your conviction, if you can show just calls that you
Speaker 3: were wrong. And in the two ninety ninth District Court
Speaker 3: in Travis County, judge agreed to have a hearing, and
Speaker 3: we requested that Jerry Wayne Johnson be bench warned to
Speaker 3: the hearing.
Speaker 1: So during a two day hearing in February two thousand
Speaker 1: and nine, Johnson again confessed to the gladness time before
Speaker 1: a judge, before your family, and before the victim.
Speaker 3: It was very surreal. I'll take you my brothers, A
Speaker 3: couple of them were real angry. So there were quite
Speaker 3: a few bailiffs in the courtroom, so there were gonna
Speaker 3: be some disorder in the court. And I remember my
Speaker 3: brother Kevin was sitting literally on my brother Sean because
Speaker 3: Sean went into the military, because Tim went into the military,
Speaker 3: and he was going to jump over the bar, and
Speaker 3: so he had to hold Sean down because he was
Speaker 3: visibly shaken and emotional. But as my mother said, if
Speaker 3: I'm not angry, no one can be angry, and no
Speaker 3: one can be angry for me. She knew that Tim
Speaker 3: had a greater purpose, and.
Speaker 1: The greater purpose became clear. And I want to, of course,
Speaker 1: mentioned the Innocence Project New York joined with the Innocence
Speaker 1: Project of Texas's co counsel on the case.
Speaker 4: And let me just say that the Innocence Project of
Speaker 4: New York found the letter that Tim wrote to them
Speaker 4: in nineteen ninety two asking for assistance, and returned that
Speaker 4: letter to my mother.
Speaker 3: Baryshek I can't say enough about him. Yeah, took time
Speaker 3: out came and co counseled on Tim because it was
Speaker 3: so important that we have finally proven in these United
Speaker 3: States that the innocent do in fact die in prison.
Speaker 3: But Tim, and many of his letters to us and
Speaker 3: to my mother, he always said I want three things, vindication, exoneration,
Speaker 3: and a full pardon. The vindication came with the DNA testing.
Speaker 3: The exoneration came through the two ninety ninth District Court,
Speaker 3: who Judge Baart said he was factually and morally innocent
Speaker 3: and this was the worst miscap marriage of justice he
Speaker 3: had ever seen in his entire life.
Speaker 1: And then on March first, twenty ten, Texas Governor Rick
Speaker 1: Perry pardoned your brother his third wish. And then soon
Speaker 1: after that, the State of Texas passed the Timothy Cole Act,
Speaker 1: increasing compensation paid to exanneries after their release and adding
Speaker 1: compensation for the family of an ex honery cleared after death.
Speaker 1: Thank you to Rodney Ellis, who was a chair of
Speaker 1: the board of the Nison's Project of New York, who
Speaker 1: was instrumental in getting that passed. The state also created
Speaker 1: the Timothy Cole Advisory Panel on Wramful Convictions in two
Speaker 1: thousand and nine to study the prevention of wrongful convictions
Speaker 1: across the stating. Ultimately, a thirteen foot bronze statue of
Speaker 1: Tim in twenty fourteen was dedicated in Lubbock, depicting young
Speaker 1: Tim looking toward Texas Tech University Law School, where he
Speaker 1: almost certainly would have graduated and gone on to do
Speaker 1: probably incredible things, and in his hands on the statue
Speaker 1: or two books, the binding of one says, lest we
Speaker 1: forget The base of the sculpture reads and Justice for
Speaker 1: All Wow, and Texas Tech University System regents voted in
Speaker 1: twenty fifteen to posthumously award Tim an honorary degree in
Speaker 1: law and social Justice. What an incredible ending to the story.
Speaker 1: Before we get to the closing of the show, is
Speaker 1: there a call to action for the audience? Is there
Speaker 1: something that you'd like them to donate to or a
Speaker 1: website you'd like to go to.
Speaker 4: All of our work is focused on the Texas Innocence Project,
Speaker 4: So the incarcerated innocence they need all the help they
Speaker 4: can get. There are more of them than there are.
Speaker 2: People to help them. So anything you can do, anything.
Speaker 4: You feel called to do, to give to the Texas
Speaker 4: Innocence Project is greatly appreciated. Our family's mission is to
Speaker 4: continue to work on legislation through the Texas Innocence Project
Speaker 4: because there's still some things in.
Speaker 1: The law that need to be changed, and that's Innocence
Speaker 1: Texas dot Org. That's Innocent Texas dot Org. Will also
Speaker 1: put a link in our bio for people to donate
Speaker 1: and get involved. So now, Karen and Corey, we have
Speaker 1: a tradition here at Wrongful Conviction, which is that the
Speaker 1: end of our show is called closing Arguments. It works
Speaker 1: like this. I first of all thank each of you,
Speaker 1: not just for being here today, but for just being
Speaker 1: such incredible fighters and courageous humans. I'm proud to know
Speaker 1: you and honored to have had you here today, So
Speaker 1: thank you for that. And then I'm going to turn
Speaker 1: my microphone off, turn my volume on my headphones up
Speaker 1: just a little bit, kick back in my chair, and
Speaker 1: leave your mics on, and let's close out the show
Speaker 1: with any final thoughts you want to share. Who wants
Speaker 1: to go first, and then hand the mic off to
Speaker 1: your brother or sister, whoever it is, and then you
Speaker 1: can take us out into the sunset.
Speaker 4: Well, I'll go first because my youngest brother is so eloquent.
Speaker 4: I'll leave the final words for him. Thank you, Jason
Speaker 4: for having us today and for continuing to elevate these issues.
Speaker 4: I'm happy to be here to represent my brother and
Speaker 4: our family and to present our story of his case.
Speaker 2: But more than.
Speaker 4: Anything, I'm happy here to just let people know that
Speaker 4: we as a family stand on the shoulders of my
Speaker 4: brother and my mother, two wonderful people who were given
Speaker 4: circumstances beyond their control but made the best of those circumstances,
Speaker 4: and I think have made a difference not just in
Speaker 4: the state of Texas, but in the nation in the
Speaker 4: criminal justice system. And so my final words to the
Speaker 4: listeners here today is that we still do have one
Speaker 4: of the best criminal justice systems, but it's just flawed
Speaker 4: and that's okay. So I ask each your listeners to
Speaker 4: take a moment and think about what is it you
Speaker 4: can do to make the system better, because there's always
Speaker 4: something that each of us can do to make it
Speaker 4: just a little better.
Speaker 3: When Tim was in prison, he received back pay from
Speaker 3: the Army for some fourteen thousand dollars. It was all
Speaker 3: deposited into his inmate trust fund, and when his belongings
Speaker 3: came from prison after he had died. It was just
Speaker 3: a little box and there was a check from the
Speaker 3: Texas Department of Criminal Justice, Institutional Division, and it was
Speaker 3: for only thirty six dollars and some change. And some
Speaker 3: of my siblings were like, what in the world happened
Speaker 3: all his money?
Speaker 1: What happened?
Speaker 3: And I remembered a couple of days had gone by.
Speaker 3: My mother had organized all of his letters, and I
Speaker 3: was at her house and I remember her yelling, Corey, Corey,
Speaker 3: come here, come here. And I went to room. I said,
Speaker 3: what is it? And she was throwing some papers across
Speaker 3: her bed, and she said, he gave it away, My
Speaker 3: baby gave it all away. And there were receipts from
Speaker 3: the Catholic charities feed the children. He gave the bulk
Speaker 3: of his money to those in need. He knew he
Speaker 3: couldn't help himself, but he still had the power to
Speaker 3: help others. There are many people like Tim who are
Speaker 3: still in prison waiting to be cleared. In Texas, there
Speaker 3: are some one hundred plus prisons, more than sixty thousand inmates.
Speaker 3: The Texas Prosecutor County DA's Association, they say that the
Speaker 3: amount of innocent people in prison is as high as
Speaker 3: ten percent. That's a lot of people. We have only
Speaker 3: scratched the surface. My mother, when she found out that
Speaker 3: the statue was going to be, a reporter said, Missession,
Speaker 3: how do you feel? Did you want to suit Lubbock
Speaker 3: for this? And she said, what I want no man
Speaker 3: can give, and what I need is for them to
Speaker 3: never forget. So the baton is on us to make
Speaker 3: sure people never forget. We want to make sure that
Speaker 3: this does not happen to another family, that another man,
Speaker 3: another woman does not go to prison after serving his country,
Speaker 3: after just doing right, and the entire judicial system turn
Speaker 3: its back on him because they need a conviction. So
Speaker 3: we're thankful. We are grateful that he was cleared. But
Speaker 3: as my mom said, I never would have thought that
Speaker 3: on July first, nineteen sixty that God would have chose
Speaker 3: me to be the vessel for change in the criminal
Speaker 3: justice system in Texas. My mother when she first met Michelle,
Speaker 3: the rape victim, Michelle was crying on the front steps
Speaker 3: of my house, and my mother told her stop crying.
Speaker 3: You have nothing to be sorry for. You were a
Speaker 3: victim just as tim as they was. And Michelle admired
Speaker 3: some heart shaped ear rings my mother had and we
Speaker 3: had dinner at my house for about three hours and
Speaker 3: it was like we were old friends. And when Michelle
Speaker 3: was leaving, my mother grabbed her arm and said give
Speaker 3: me a hand, and she put her heart shaped ear
Speaker 3: rings in Michelle's hand and she said, oh, Missession, I
Speaker 3: can't take this. She said, no, no, you give people
Speaker 3: their flowers while they're alive. So we will try and
Speaker 3: make sure we can give as many people their flowers
Speaker 3: in hopes of getting them exonerated, keeping them from going
Speaker 3: into the criminal justice system as best we can.
Speaker 1: Thank you for listening to ropel Conviction. I'd like to
Speaker 1: thank our production team Connor Hall, Justin Golden, Jeff Cliburn,
Speaker 1: and Kevin Wardis, with research by Lyla 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 Flam.
Speaker 1: Wrongful Conviction is the production of Lava for Good Podcasts
Speaker 1: and association with Signal Company Number one