LUBBOCK, Texas (KCBD) – A statue in central Lubbock stands at the corner of the Texas Tech campus, representing Timothy Cole looking toward the Texas Tech Law School. For more than a decade, it has served as a symbol of justice and a rallying point for different causes, but many of them don’t know who Tim Cole even was or why ‘And Justice For All’ is etched into the statue’s pedestal.
Cory Session remembers his older brother
To his younger brother, Cory Session, it’s because he is a beacon of righteousness in the face of adversity; and a victim of a poorly-conducted serial sexual assault investigation in 1985 that led to his wrongful conviction, death in prison, and his posthumous exoneration from the state that put him away.
Tim Cole was the oldest of seven children. His brother remembers him as the supporter, filling in for their working parents. After high school, he wanted to play basketball for Texas Tech. While he didn’t make the team in the early ’80s, he decided to stay in Lubbock.
Tim Cole’s military service
When his siblings were getting ready to go to college, Tim took it upon himself to join the Army.
“He was like, ‘well, I’ll go get the GI bill and that will help relieve some of the financial burden,’” Session recalled from his Fort Worth home.
Cole served two years before honorably discharging and coming back to Texas Tech. He returned to Lubbock in January of 1985, when police were faced with a serial rapist on the Tech campus, with four survivors and counting.
A look inside the Tim Cole case file
For the first time in 40 years, KCBD is getting a first-hand look at the case file police built against Cole over the next year and a half. It tells the story of a predator kidnapping Michele Mallin on March 24, 1985, sexually assaulting her and threatening to kill her if she screamed. She was the fifth survivor.
When police built a lineup, Mallin identified Cole as the perpetrator.
“They put Tim’s photo in there with just street clothes and the others were mugshots, Tim’s was facing forward, the others were facing to the right, left or right, think it was right. It was supposed to, I think, from what the psychologist said it was supposed to, like, gear me toward that picture,” Mallin told KCBD in 2010, a statement she had repeated for years by that time.
An undercover officer also identified Tim as a suspect based on him offering her a ride in the middle of the day.
“She told her supervisor ‘that’s the Tech rapist.’ He said ‘how do you know?’ And she said ‘because he looks like the sketch,’” Session said, alluding to a black-and-white composite police put in their case file against Cole and later recalled during Cole’s trial.
Tim Cole’s initial arrest
Lubbock police arrested Cole, charging him with one count of aggravated sexual assault. Session says their mother went to Lubbock to bond Cole out of prison, and noted Cole’s attorney, Mike Brown, called them to tell them there was another rape on the Tech campus that night — while Cole was in Fort Worth with his family.
“They tried to tie him to the others, but the other young ladies said ‘it’s not him, it’s not him, it’s not him,’ but they announced they had caught the Tech Rapist,” Session said.
Tim Cole refuses plea deals, insists he is not guilty
Cole insisted he wasn’t guilty. While he was in jail, another inmate named Jerry Wayne Johnson heard him crying and praying.
“The Lubbock police, the Lubbock DA’s office, had someone in custody who had a history of sexual assault since he was a teenager, which was Jerry Wayne Johnson, he had been prosecuted,” Session said.
Session said Johnson was first convicted of rape in 1979. Instead of receiving a 10-year prison sentence, prosecutors elected for probation because it was his first offense.
“If he’d have served those ten years… my, my, what if?” Session said.
Prosecutors built their case on Mallin’s identification and physical evidence the state claimed linked Cole to the attack, including questionable biological evidence and “junk science,” according to the Innocence Project of Texas. The case file shows black-and-white images of cigarette packs and a knife prosecutors say the attacker left behind. The perpetrator smoked heavily during the attacks, according to survivors.
“I testified against him and I honestly believed that they had the right person, I didn’t have any idea that he was the wrong man,” Mallin would later tell a group of Georgetown Law students in 2009.
His defense attorneys said Cole couldn’t have pulled off the attack, citing alibis for the night in question and his acute asthma. Multiple witnesses corroborated his alibi, a night at home with his friends and family. Cole maintained his innocence throughout, even refusing plea bargains from District Attorney Jim Bob Darnell if he admitted to the crime.
‘I’d rather spend 25 years in prison before I admit to something I did not do.’
“He told Mr. Darnell, ‘I’d rather spend 25 years in prison before I admit to something I did not do.’ And Mr. Darnell, my mother vividly remembers, ‘Well, Mr. Cole, we aim to oblige that,’” Session said.
A jury convicted him. On Constitution Day of 1986, a jury sentenced him to 25 years in state prison.
“Those last four words in the first score of the Preamble are not what Tim Cole was guaranteed by the Constitution. ‘Justice and the ensurance of Domestic Tranquility.’ He served in the military, he did everything we dream for our children to do: go to school, get an education, be a leader, serve your country. He wanted to live the American Dream but lived the American Nightmare,” Session said.
New purpose in state custody
Inside a state penitentiary, Session says Tim found new purpose and gratitude, things he tried to pass to his siblings. At one point, the family discovered his Army pension payments weren’t paying out correctly; after some investigation, they found out Cole was diverting some of his own money into other social causes he was supporting from prison.
Session says Tim was ever the older brother, even through a glass wall, encouraging him to finish school and work inside the Texas government to achieve the change they wanted. Session vividly recalled a conversation he had with Tim during the ’90s, when Tim told him about inmates who would otherwise live homeless outside the penitentiary. Cole told Session he was grateful he wasn’t in that situation.
“What do I have to complain about in the quote-unquote ‘free world’ and here’s a man who is in prison for something he didn’t do and he’s saying he’s thankful he has a roof over his head and every piece of bread they allow him to eat?” Session said.
Family appeals the case
His family worked tirelessly to pursue justice, appealing his case on the merits and seeking to overturn his conviction. But he wouldn’t see the outside world again.
“People have problems admitting when they’re wrong; to simply say, ‘hey, we screwed up,’” Session said.
“I fully believe the DA’s office and police department knew full-well they had the wrong person but those in charge chose to press forward because they probably felt like it would tarnish their reputation,” Session said.
Jerry Wayne Johnson confesses his guilt
“Jerry Wayne Johnson says, back then, he knew one day he was going to have to make it right. In 1996, three years prior to Tim’s death, Jerry Wayne Johnson, sent letters he wrote to the prosecutors at that time confessing his guilt to the crime that Tim was wrongfully convicted of,” Session said.
Tim Cole dies from asthma attack
Thirteen years into his sentence, Cole died of an asthma attack on Dec. 2, 1999. He was 39 years old.
Meanwhile, the man who raped Michelle Mallin in early 1985 was still alive.
Posthumous exoneration
It would take another decade for Cole’s family to find the justice he was promised and another team of experts to prove it.
Cole’s posthumous exoneration would include several “firsts” for the state of Texas in the past 40 years. We’ll show you how in the next installment of our series Monday at 6. Then join us for part three on Tuesday.
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