Lubbock Officials file Motion to Dismiss Civil Action in Tim Cole Wrongful Conviction Case

The State of Texas took the life of an innocent black college student. That Timothy Cole was not guilty of a 1985 rape of a Texas Tech college student seems inconsequential to the City of Lubbock.

In seeking the truth behind prosecution and wrongful conviction of her son, Tim Cole’s mother’s civil action was met with a callous Motion to Dismiss from the Lubbock Police Department, the city and four former police officers. The motion argues that “Cole’s mother, Ruby Session of Fort Worth, cannot show that the benefits of taking the depositions will outweigh the burdens that would be placed on those being deposed” (Defendants in Tim Cole case file motion to dismiss civil action, Star-Telegram, May 10, 2010)

Benefit versus Burden

The only burden in this case is the burden of a guilty conscious, priceless. The benefit accrues to more than Ruby Session and the immediate family of Tim Cole. This is a case of public interest, the prosecution and wrongful conviction of an innocent African-American student, and his tragic demise in prison. Thus, the national interest in the truth far exceeds the limited selfish interests of local government officials, present and former.

The Innocence Project of Texas, who helped clear the name of Timothy Cole and gain a posthumous pardon for him in 2010 from Governor Rick Perry, discovered also a pattern of wrongful convictions, and has since gained the release of 39 men from the state prison system. Like Cole, these were all innocent men, mostly African-Americans.

How and why all these innocent men were prosecuted, convicted, and sent to prison for long stretches of time, is a subject of utmost importance, particularly to the African-American community. If an innocent black college student can be shanghaied by the state criminal justice system, what safeguards minorities have against the Tyranny of the Majority in rural Texas towns that still practice frontier justice?

How can the Lubbock Police Department evade giving testimony, when they had, in hand, the confession of the actual rapist, testimonies of alibi witness, and recant of the rape victim herself?

Michele Mallin, the Texas Tech sophomore who originally identified Cole as the man who raped her on March 24, 1985, testified Lubbock police showed her his picture and she assumed they had more evidence on him, such as fingerprints.

“I still feel guilty. I'll always feel guilty about it because, I mean, my testimony sent a man to prison and he ended up dying there,” Mallin says. “Even though I know I did everything I could in my heart of hearts to do the right thing, still that happened. But I know the police are responsible and the D.A., too, because they knew things I didn't know.” (Source: NPR)

Although there were alibi witnesses with Tim Cole at the time, he was given 20 years based only upon Mallin’s testimony, with no other physical evidence. For 10 years, he languished in prison with an asthmatic condition, while the true rapist struggled with his own guilty conscious, waiting for the statue of limitation to run out, so that he could confess to the crime.

In 1995, Jerry Wayne Johnson wrote a letter to the court confessing to the Texas Tech rape. There was no response, so Johnson wrote Cole’s family. In due time, the truth finally came out. Timothy Cole was an innocent man. But it came too late. They found him unconscious in his cell on December 2, 1999, dead at the age of 39.

Based upon these set of proven facts, the courts exonerated Tim Cole, the governor pardoned him posthumously, the State Legislature passed a resolution (H.R. 62) on his behalf, and the Tim Cole Wrongful Conviction Compensation Act became law in Texas.

But the job is not yet finished

“Someone has to pay for what happened to my brother,” said Cory Session, Cole's brother. “We want every scrap of paper in the Tim Cole file. We want to see it and go through it with a fine-tooth comb. We are going to do the job that they didn't do. If there was gross misconduct, I'm sure that people will be prosecuted. But I'm just looking for some of the people who were involved to say that they are sorry. To this point, very few have done that.”