You would think that Timothy Cole would be a happy man. Texas State District Judge Charles Baird has expunged his conviction of a 1985 rape in Lubbock, Texas of Texas Tech University student Michele Mallin. The problem is that he died in prison ten years ago.
DNA tests in 2008 show that the real attacker was Jerry Wayne Johnson, who is serving life in prison for separate rapes.
Cole’s family is asking Gov. Rick Perry to also issue a formal pardon. What they should also demand is mandatory DNA testing in all felony cases and availability of such testing for all previously convicted individuals. Prosecutors still resist such demands and the Supreme Court this month will hear a case where they may reverse the Ninth Circuit decision in District Attorney’s Office v. Osborne, Docket No. 08-6– requiring the Alaska to give a convicted rapist DNA testing.
Mallin identified Cole as her attacker at the trial. He refused to plead guilty in exchange for a lighter sentence. He was then denied parole because he refused to admit that he was a rapist. Mallin blames Lubbock police and prosecutors who she said convinced her that Cole was the man.
Once again, there has not been a general call in Texas for answers from the prosecutors or police in this tragedy. Some false convictions are inevitable, but many are the result of a lack of police work or blind prosecution. Yet, it is very rare that there is any serious investigation in such cases. The District Attorney’s Office in Lubbock notably did not participate in the hearing to exonerate Cole.
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