Texas attorney general says governor can pardon man exonerated by DNA after dying in prison

AG: Governor can pardon dead man exonerated by DNA

DALLAS — With a pardon for her dead son finally possible, the mother of a Texas man wrongly convicted of rape said she knows what to do now: take flowers to his grave and share the news.

An attorney general’s opinion Thursday cleared the way for Gov. Rick Perry to issue a posthumous pardon for Tim Cole, an Army veteran and innocent man who died behind bars in 1999 at age 39. The opinion brings Cole’s family a step closer to ending a 25-year effort to clear his name.

“He knows,” Ruby Session said of her son. “I am sure he probably knew before the rest of us.”

A sympathetic Perry embraced a tearful Session last year but said he did not have the power to issue a posthumous pardon, citing a 45-year-old attorney general’s opinion. Current Attorney General Greg Abbott overturned that, saying the Texas constitution limits pardon power only in cases of treason or impeachment.

Perry indicated Thursday that he will pardon Cole so that “justice can finally be served.”

The Innocence Project of Texas will submit a formal pardon request to the Board of Pardons and Paroles, which will make a recommendation to the governor.

“He wasn’t here to see it,” Cory Session said of his brother. “But I know he knows it’s coming.”

As a Texas Tech University student, Cole became entangled in a 1985 investigation of a serial rapist in Lubbock. A female undercover officer was posing as a student to attract the rapist. Cole made the disastrous mistake of asking her out for a drink.

Cole, the son of a Bell Helicopter manager and a schoolteacher in Fort Worth, was an unlikely suspect. The rapist was described as a heavy smoker, whereas Cole was an asthmatic who did not smoke.

Attorneys later pointed out problems with the investigation. In the photo array of suspects presented to a victim, Cole’s photo was a color snapshot while the rest were black-and-whites.

Nevertheless, Cole was convicted and sentenced to 25 years, largely because of witness misidentification. He maintained his innocence until his death in prison from complications of asthma. His family continued the fight long afterward.

The turning point came in 2007, when a man serving life in prison for a series of other rapes mailed a confession to Cole’s home address — not knowing Cole had been dead for eight years. Cole’s mother received the letter, and along with the Innocence Project of Texas, she pressed for DNA testing.

A 2008 test cleared Cole and linked the letter writer, Jerry Wayne Johnson, to the rape.

In several letters to Lubbock County prosecutors and judges beginning in 1995 — when Cole was still alive — the already imprisoned Johnson confessed to the rape that sent Cole to prison. But his letters were ignored. He cannot be prosecuted for the rape that sent Cole to prison now because the statute of limitations has expired.

Cole was formally cleared last year by state district Judge Charles Baird in Austin after a Lubbock County judge denied the Innocence Project of Texas’ request for an exoneration hearing. Baird said mistaken witness identification, questionable suspect lineups and a faulty investigation by Lubbock police led to Cole’s wrongful conviction.

The hearing included dramatic testimony from Michele Mallin, the victim of the rape for which Cole was convicted. She confronted Johnson, crying out that he had victimized both her and Cole.

“I’m going to try to forgive you, but it’s going to take a long hard time,” Mallin shouted. “No woman deserves it. No person deserves what that man got. He could have been a father, he could have been a grandfather right now. … I just hope you live out your last miserable days in prison and suffer the rest of your life.”

Last year, Perry signed into law the Tim Cole Act, which made Texas the most generous state in compensating the wrongly convicted. It went from paying the wrongly convicted $50,000 for each year of incarceration to $80,000 per year, plus a lifetime $80,000 annuity that varies based on life expectancy and other factors.

Cole’s family is eligible to collect the lump sum, but has not filed a claim.

The Cole case is now the subject of a federal lawsuit brought by his family. It specifically seeks discovery from a Texas Tech police officer and four Lubbock police officers, including the undercover officer.

“In many of his writings to us, Tim said he wanted exoneration, vindication and a pardon from the governor,” Ruby Session said. “We wanted to get what he didn’t get in life. Tim wanted it, and we wanted it for him.”