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\u2019t know who Tim Cole even was or why \u2018And Justice For All\u2019 is etched into the statue\u2019s pedestal.<\/p>\n
Cory Session remembers his older brother<\/p>\n
To his younger brother, Cory Session, it\u2019s 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.<\/p>\n
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\u2019t make the team in the early \u201980s, he decided to stay in Lubbock.<\/p>\n
Tim Cole\u2019s military service<\/p>\n
When his siblings were getting ready to go to college, Tim took it upon himself to join the Army.<\/p>\n
\u201cHe was like, \u2018well, I\u2019ll go get the GI bill and that will help relieve some of the financial burden,\u2019\u201d Session recalled from his Fort Worth home.<\/p>\n
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.<\/p>\n
A look inside the Tim Cole case file<\/p>\n
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.<\/p>\n
When police built a lineup, Mallin identified Cole as the perpetrator.<\/p>\n
\u201cThey put Tim\u2019s photo in there with just street clothes and the others were mugshots, Tim\u2019s 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,\u201d Mallin told KCBD in 2010, a statement she had repeated for years by that time.<\/p>\n
An undercover officer also identified Tim as a suspect based on him offering her a ride in the middle of the day.<\/p>\n
\u201cShe told her supervisor \u2018that\u2019s the Tech rapist.\u2019 He said \u2018how do you know?\u2019 And she said \u2018because he looks like the sketch,\u2019\u201d Session said, alluding to a black-and-white composite police put in their case file against Cole and later recalled during Cole\u2019s trial.<\/p>\n
Tim Cole\u2019s initial arrest<\/p>\n
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\u2019s 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.<\/p>\n
\u201cThey tried to tie him to the others, but the other young ladies said \u2018it\u2019s not him, it\u2019s not him, it\u2019s not him,\u2019 but they announced they had caught the Tech Rapist,\u201d Session said.<\/p>\n
Tim Cole refuses plea deals, insists he is not guilty<\/p>\n
Cole insisted he wasn\u2019t guilty. While he was in jail, another inmate named Jerry Wayne Johnson heard him crying and praying.<\/p>\n
\u201cThe Lubbock police, the Lubbock DA\u2019s 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,\u201d Session said.<\/p>\n
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.<\/p>\n
\u201cIf he\u2019d have served those ten years… my, my, what if?\u201d Session said.<\/p>\n
Prosecutors built their case on Mallin\u2019s identification and physical evidence the state claimed linked Cole to the attack, including questionable biological evidence and \u201cjunk science,\u201d 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.<\/p>\n
\u201cI testified against him and I honestly believed that they had the right person, I didn\u2019t have any idea that he was the wrong man,\u201d Mallin would later tell a group of Georgetown Law students in 2009.<\/p>\n
His defense attorneys said Cole couldn\u2019t 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.<\/p>\n
\u2018I\u2019d rather spend 25 years in prison before I admit to something I did not do.\u2019<\/p>\n
\u201cHe told Mr. Darnell, \u2018I\u2019d rather spend 25 years in prison before I admit to something I did not do.\u2019 And Mr. Darnell, my mother vividly remembers, \u2018Well, Mr. Cole, we aim to oblige that,\u2019\u201d Session said.<\/p>\n
A jury convicted him. On Constitution Day of 1986, a jury sentenced him to 25 years in state prison.<\/p>\n
\u201cThose last four words in the first score of the Preamble are not what Tim Cole was guaranteed by the Constitution. \u2018Justice and the ensurance of Domestic Tranquility.\u2019 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,\u201d Session said.<\/p>\n
New purpose in state custody<\/p>\n
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\u2019t 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.<\/p>\n
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 \u201990s, when Tim told him about inmates who would otherwise live homeless outside the penitentiary. Cole told Session he was grateful he wasn\u2019t in that situation.<\/p>\n
\u201cWhat do I have to complain about in the quote-unquote \u2018free world\u2019 and here\u2019s a man who is in prison for something he didn\u2019t do and he\u2019s saying he\u2019s thankful he has a roof over his head and every piece of bread they allow him to eat?\u201d Session said.<\/p>\n
Family appeals the case<\/p>\n
His family worked tirelessly to pursue justice, appealing his case on the merits and seeking to overturn his conviction. But he wouldn\u2019t see the outside world again.<\/p>\n
\u201cPeople have problems admitting when they\u2019re wrong; to simply say, \u2018hey, we screwed up,\u2019\u201d Session said.<\/p>\n
\u201cI fully believe the DA\u2019s 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,\u201d Session said.<\/p>\n
Jerry Wayne Johnson confesses his guilt<\/p>\n
\u201cJerry 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\u2019s 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,\u201d Session said.<\/p>\n
Tim Cole dies from asthma attack<\/p>\n
Thirteen years into his sentence, Cole died of an asthma attack on Dec. 2, 1999. He was 39 years old.<\/p>\n
Meanwhile, the man who raped Michelle Mallin in early 1985 was still alive.<\/p>\n
Posthumous exoneration<\/p>\n
It would take another decade for Cole\u2019s family to find the justice he was promised and another team of experts to prove it.<\/p>\n
Cole\u2019s posthumous exoneration would include several \u201cfirsts\u201d for the state of Texas in the past 40 years. We\u2019ll show you how in the next installment of our series Monday at 6. Then join us for part three on Tuesday.<\/p>\n