A judge in Austin, Texas Thursday began hearing arguments from attorneys representing a dead man. It involves the case of Timothy Cole, who was convicted of raping a woman in the west Texas city of Lubbock in 1985. He died in prison nine years ago still insisting that he was innocent and now evidence has become available to prove he was right. But posthumous exonerations are rare anywhere in the United States and none has ever before been granted in Texas.
There is a natural reluctance for any court to consider a plea to exonerate someone who is already dead and, if the court does so in the Timothy Cole case, it would be a first for Texas.
Courts, already overburdened with cases involving the living generally regard taking on posthumous exoneration cases as a waste of valuable court time and resources.
But Texas State District Judge Charlie Baird, in the state capital of Austin, decided to hear this case after being presented with not only evidence of Cole's innocence, but of possible wrongdoing by the authorities who handled the original arrest and trial.
The Innocence Project of Texas is assisting members of Timothy Cole's family in presenting evidence to the court. The organization's executive director, Natalie Roetzel speaking to VOA by telephone, says there is more to this case than clearing the name of someone already deceased.
"This is a case designed to expose the flaws that led to his wrongful conviction. So, if we can expose some of those flaws and if we can convince the legislature to make some reforms in response to those flaws then we can prevent these types of cases from coming before the court and decrease the loads courts are seeing with these exoneration cases," she said.
The flaws cited by attorneys representing the Cole family are numerous. DNA tests show someone else committed the rape and that person is Jerry Wayne Johnson, already serving time for two other rapes. Johnson admitted to the crime 14 years ago, but Timothy Cole died in prison without any action having been taken to exonerate him or even provide him with a new trial. Cole, who suffered from a heart condition, could have been released on parole years before his death, but parole boards generally want to see signs of remorse from prisoners and he always insisted he was innocent.
The strongest testimony against Cole in his trial, according to those who served on the jury in Lubbock, came from the rape victim, Michele Mallin. She is now helping the Cole family in their attempt to clear Timothy Cole's name.
Natalie Roetzel says Mallin now realizes she was influenced in her belief that Cole was the rapist by police officers who suggested they had hard evidence tying him to this as well as other crimes. Both Cole and Johnson, the man who confessed to the crime, are black. Mallin was initially uncertain when picking Cole's picture from a lineup provided by the Lubbock police, but she says they convinced her she was right.
Natalie Roetzel says the police manipulated the crime victim as well as the evidence to convict an innocent man. "Numerous pieces of physical evidence were completely ignored and/or destroyed by the Lubbock Police Department. Michele was under the impression that there was other physical evidence tying Mr. Cole to the crime and so she never thought there was a risk of convicting the wrong person."
The prosecutor in the Cole case is now a judge in Lubbock County and has not commented on the case. The court will continue to hear testimony Friday and the judge could come to a decision either at the end of that testimony or sometime early next week.