First posthumous DNA exoneration in state history to be made by Texas judge

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by The Associated Press

kvue.com

Posted on August 15, 2009 at 4:38 PM

Updated Monday, Oct 19 at 6:41 PM

A state district judge in Austin Tuesday was expected to formally clear a man who died in prison 13 years into a 25-year sentence for a rape he did not commit, making him the first posthumous DNA exoneration in Texas history.

DMN File
Ruby Session (center) holds a photo of her son, Tim Cole, died in prison 13 years into a 25-year sentence for a rape he did not commit. A state district judge in Austin today is expected to formally clear Cole of the charges, making him the first posthumous DNA exoneration in Texas history. Also in the photo are Session's other sons: Rodney Kennard (left) Cory Session and Reginald Kennard.

State District Judge Charles Baird already indicated after a February hearing that he would exonerate Timothy Cole, who was convicted of a 1985 sexual assault of a Texas Tech University student. Baird is expected to reveal the legal reasoning for his decision during a hearing today in his Austin courtroom, lawyers from the Innocence Project of Texas said.

Cole died in 1999 at 38 of complications from asthma.

He always maintained his innocence.

"When we started this back on September 26, 1986, when Tim was convicted, we knew this would not be a sprint race. It was going to be a marathon," said Cory Session, Cole's brother. "Here we are, a quarter century later."

Cole, a military veteran and college student, was convicted of raping the student in Lubbock in 1985. Cole and his relatives for years claimed he was innocent, but they were ignored by the judicial system until evidence from the original rape kit was tested for DNA last year. The tests cleared Cole and connected the crime to Jerry Wayne Johnson, who is serving life in prison for other rapes.

In 1995, after the statute of limitations had expired on the Texas Tech rape, Johnson tried to confess to the crime in letters to prosecutors and judges in Lubbock County. But no one paid attention, and Cole died in prison four years later.

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The Innocence Project of Texas eventually took on the case, pressing last year for an exoneration hearing in Lubbock County, where the case was originally prosecuted.

But a judge there denied the request for a hearing.

"We have the evidence. We have a guy who has admitted to it. The evidence shows it's him. Why can't we say Tim's innocent?" Session said.

"I don't mind jumping over hurdles, but there comes a time when you have to stop putting up obstacles when the right thing to do is already in front of you."

Using an unusual legal maneuver, Innocence Project of Texas chief counsel Jeff Blackburn arranged for a rare court of legal inquiry in Austin. That led to Johnson's dramatic testimony in February in which he acknowledged he was the rapist in Cole's case. That admission came in front of the rape victim, who had joined forces with Cole's family in seeking an exoneration.

AP
Jerry Wayne Johnson testified at a court of legal inquiry that he committed the 1985 rape of a Texas Tech student for which Timothy Cole (in portrait) was convicted.

Blackburn said Baird's ruling will likely address problems that led to Cole's conviction, including eyewitness misidentification and questionable photo arrays and lineups used by Lubbock police. The case comes along as the Legislature considers several bills that would address those issues, as well as increase compensation paid to the wrongly convicted.

"There's never been a serious effort at a judicial examination of what went wrong in one of these cases. Our view is this is a huge step forward, and this ought to happen in every single exoneration," Blackburn said.

"We ought to treat these exonerations like we treat a plane crash. It's a big deal. We've gotten so accustomed to false convictions in Texas that we just shrug our shoulders and say, 'Oh, well."'

Texas leads the nation with 36 DNA exonerations, according to the Innocence Project.

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