Dateline, Austin: Texas Injustice On Trial Today
Tim Cole, courtesy The Innocence Project
No one in the Texas criminal justice system bothered to follow-up.
Four years later, in 1999, Cole died in prison due to inadequate medical treatment for his asthma. He was 39. In 1985, he refused to confess to a crime he did not commit, even though a confession would have led to a probationary sentence. In this respect, his case reminds me far too much of Genarlow Wilson.
The Back Story
It's hard to believe that almost 30 years ago prosecutors would have gone to the jury with a case as weak on the surface as this one appears to be in hindsight. The rapist was a chain-smoker; Cole was a non-smoking asthmatic. The rapist had "touched [the victim's] steering wheel and cigarette lighter." Supposedly, forensic evidence was non-conclusive. Might it have been that the physical evidence simply did not match the "eye-witness" account?
And even though there had been a string of rapes, no other rape victim identified Cole. The judge agreed with the prosecution that this evidence should be suppressed.
Cole's only "crime" was flirting with an undercover cop. Flirting. The audacity, a black man flirting with a white woman. That's what put him in a line-up.
Not only did the Lubbock criminal justice system fail Cole in 1985 and again in 1995, it failed him in 2008 after the current D.A. ran DNA tests that proved Cole's innocence. Last year, Lubbock Judge Blair Cherry refused a request to clear Cole's name, a request led by the Innocence Project of Texas.
Today and tomorrow, a different judge is hearing the case.
Innocence Project of Texas attorneys are currently representing the family of Timothy Cole and Michele Mallin as they engage in a joint effort to clear Cole’s name. The parties have filed a petition for a court of inquiry—an obscure and rarely used legal procedure—into the wrongful conviction of Timothy Cole in Austin, Texas. A hearing in the case is scheduled for February 5 & 6 in the 299th District Court, Travis County. Judge Charlie Baird will preside over the hearing, which will examine all of the facts and circumstances of Tim Cole’s arrest, trial and sentence. What went wrong in this case and why it did will be examined in detail. This case highlights some of the terrible flaws of the Texas criminal justice system, and those flaws will be carefully analyzed.
Should they prevail, and if there truly is justice in this world, they will, he will be the first person in Texas to receive a formal posthumous exoneration.
What You Can Do
This case symbolizes the importance of local politics. District Attorneys are elected, but these campaigns are all too often low priority and driven by "get tough on crime" posturing. In Texas, the consequences are brutal: since 1994, 35 former Texas inmates have been exonerated in Texas courts by DNA testing, according to the Innocence Project of Texas. And 8-in-10 of those cases, like this one, featured witness misidentification.
How might federal political action help? First, we need to keep a bright spotlight on Texas, which is a poster child for how poorly minorities fare in the criminal justice system. Second, we need to educate the public about witness misidentification, so that jurors are knowledgeable enough not to be swayed by rhetorically-gifted prosecuting attorneys. Witness misidentification is a factor in 75% of convictions overturned through DNA tests, according to the Innocence Project.
Rather than pouring millions down the rat hole that is the war on drugs, why not put that federal money into DNA testing? Better yet, use the power of the federal government to implement system-wide change in eyewitness identification procedures. Is it over-stepping federal authority to force jurisdictions to abandon a flawed system for one that is supported by research?
And today, send karmic thoughts to Austin.
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