Tim Cole Memorial Statue

Hope Deferred The story of Timothy Cole

My most important work as a journalist began with a short, faxed note, a letter from prison and a phone call from an elated Fort Worth man desperate for someone to listen to his oldest brother’s story.

I didn’t believe him during that first phone call. But I listened. Over the course of two years, pieced together at first in spare, late hours, it became a law-changing — and life-changing — saga righting the legacy of Timothy Cole, Texas’s first posthumous exoneree.

Hope deferred makes the heart sick, but a longing fulfilled is the tree of life.
– Proverbs 13:12

Tim’s story was the most stressful and important work I’ve ever attempted. I felt an enormous burden to shepherd a last and seemingly final ember of clarity to flame. There was no legal obligation compelling the state to dig into the truth. And it was never far from mind that the results could require I write a much darker ending for his family.

Like any work, I look back and think about what the writer and reporter I am today would do differently than a much younger me. But when the story broke, it unleashed a national flood. Texas legislators changed how the state compensates wrongfully convicted inmates after the series was published. Tim’s case called to question eyewitness identification procedures in Texas. And more than a year later, for the first time in known state history, Governor Rick Perry posthumously exonerated Tim Cole and vindicated a Fort Worth family who did not give up on their son.

Hope Deferred received a 2009 Texas Gavel Award and first place for specialty reporting in its circulation size from the Texas Associated Press and Managing Editors.

It has been difficult over the years to maintain a working link to an accessible A-J archive, so not all references may work. Text, but not the great photo and videography work, waits after the pdf. The original series — a massive, three-day narrative written still being written as we were publishing — begins below.

 

Hope Deferred Series by epburn


Hope Deferred – The Wrongful Conviction of Tim Cole

By Elliott Blackburn | Avalanche-Journal

Saturday, June 28, 2008
Story last updated at 6/28/2008 – 4:17 pm

First of a three-part series

Reggie Kennard sat at his mother’s side on the couch, wiping his face beneath two portraits of his oldest brother.

The family had waited more than 20 painful years for any good news they could share with Tim, and filled the living room of his childhood home to hear the results of their latest, last hope.

Reggie picked up a brown, palm-sized Bible and thumbed to a verse in Proverbs. Friends and family gathered in the southeast Fort Worth home listened silently as his voice caught.

“Hope deferred,” Reggie read through fresh tears, “makes the heart sick.”

The attack

She hadn’t even turned off her car before he was at her window asking for jumper cables.

The 20-year-old Tech sophomore had pulled into the church parking lot under a light pole at its far eastern edge. She had no on-campus pass for a space near her dorm, so she moved her six-year-old ’79 Cutlass Supreme across the street to the Methodist parking lot every Sunday.

The big sedan idled as she rolled down the window to talk. He looked like a Tech student, she said, a black man a little taller than her with a medium build, short curly hair and bulging eyes. She wore a sweatsuit – it was almost 10 p.m. and the clear March day had cooled quickly after dark. The man wore a yellow terry cloth shirt, jeans and thong sandals.

Her father handled all the car trouble, she told him, pointing to the taillights of another car leaving the parking lot. Maybe that driver could give him a jump, she said.

He ignored her. She waited.

“I guess I am just so naive that I didn’t think anything would happen, you know?” she said.

He watched the other car pull away.

He unlocked her door, yanking it open.

He shoved her into the passenger seat.

Her hands grasped for his hair and slipped in the short curls. She bruised her legs kicking, sank her teeth into his thumb and heard a string of curses. He threatened to kill her. She screamed and screamed for help, kicking and flailing to get away from him but he had her in a headlock and then she realized he had a knife.

The fight was over. She lay across the seat, her head pinned to his thigh 20 seconds after he forced open the door. He eased the car out of the church parking lot and into an 8-mile drive to the empty eastern edge of town.

The Tech rapist’

Lubbock police believed four attacks between December 1984 and March 1985 were the work of a “Tech rapist.”

The first occurred two days after Christmas. A 26-year-old nurse at Lubbock General Hospital left her shift just after midnight. The man appeared as she got into her car, forced her into the passenger seat and threatened her with a knife.

He wore a terry cloth shirt, blue jeans and a jacket. He kept her head below the dashboard on the drive to a vacant field where he raped her.

Police arrested a suspect, Terry Clark, three weeks after the nurse was abducted. But the attacks continued.

The man approached young women late at night or early morning, showed them a small pocket knife and forced her into the passenger’s seat. He drove them to a vacant place, usually outside of the city, where he raped his victims, stole petty cash or jewelry and left on foot while the victim fled in her car.

One student was taken from a law school parking lot in January; another from a nearby church weeks later. A 32-year-old Denny’s waitress described a similar black man who took her from the restaurant parking lot two days later.

Composite sketches drawn from the victims’ reports ran in the campus newspaper. Women began reporting black men who talked to them near campus. As the sketches changed and the investigation dragged on, Reggie Kennard, a Tech sophomore, remembered the tension prompting a joke by that March among the 500 black students on a campus of 23,000.

“If you walked campus at night, you were going to get stopped,” Kennard said. “One of the black students would say, Hey, you look like the Tech rapist.'”

More detectives joined the case as the crimes continued. Nine Lubbock officers working overtime were running surveillance in the campus area by April and not turning up much.

The violation

The Cutlass Supreme cruised farther and farther from the church parking lot into farmland. City lights faded into dull gold pinpricks above the horizon.

He talked constantly, the knife in his right hand at her throat, a lit Winston and the steering wheel in his left. She gave him a fake name, fake address, fake major, wanting him to talk but never to find her again.

He complained about racism at Texas Tech and mumbled something about hurdles when she asked about his major. He bragged he was on probation for killing a woman. She couldn’t understand him or see where they were going. She wondered if he was on drugs.

He turned the car north onto a dirt road next to a beer store and stopped out of sight of the shop.

She sat up. She tried to keep him talking.

He wanted to have sex. She didn’t want to. She wanted to wait until she was married.

She began to cry.

“He just said that he wanted to screw me just once and he would take me back alive,” she said.

He assaulted her in the front seat. They moved to the backseat, where he raped her, the knife never out of his hands, her with her arms around him, crying from the fear and pain.

An overhead light clicked on as he dressed and stepped out of the car, but the field was dark.

They left the field and drove to a rundown neighborhood she didn’t know. He had a friend there, he said. The man noticed her purse as he left the car – she was terrified he would see her driver’s license and know she was lying. But he didn’t. He left the car with two dollars, her gold Timex watch and a diamond ring.

“Well, how do I get back?” she asked. “I don’t know how to get back.”

He pointed east, to the Loop, and began to walk west. She watched him disappear in the rear-view mirror as fast as the car would allow.

A chance encounter

Timothy Brian Cole was alone in a Mr. Gatti’s two weeks later when Rosana Bagby walked in. He had been in town for three months, and lived with his brother, Reggie, in a two-story duplex a few blocks from the pizzeria.

The sharp-dressed Tech junior idled the evening away, sitting alone in his beige sports jacket and tweed button-down hat, without food or drink at the window table, watching the traffic on University Avenue. Bagby sat with her back to Tim at a seat a couple of tables ahead of him, drank a Dr Pepper, and left.

Tim found her walking north on University and rolled his car to a slow stop. It was cold again, close to 45 degrees, and she wore a jacket and shorts. Bagby walked up to his driver’s-side window and they spoke for awhile. They traded names. He shook her hand.

“I saw you there at Gatti’s. Why did you leave so quick?” he asked.

Her friend didn’t show, she said.

“You shouldn’t have left, we could have had some beers or something,” Tim said.

“Yes, we could have,” Bagby said.

They talked about campus, about dorms. She came from Missouri, she said, and he told her he was from Fort Worth.

She turned down his invitation to go have a drink at the nearby 14th Street Bar and Grill. He asked for her number.

“I better not,” she said.

“Do you want a ride? I will give you a ride,” Tim said.

“No thanks,” she answered. “Bye. I’ll see you around.”

He drove off and then, thinking maybe he should try again, returned, driving slowly along the block. But he couldn’t find her.

Bagby ducked down in an unmarked vehicle. Two detectives had scooped the undercover officer up after Tim pulled away. His flirting made him Lubbock’s top Tech Rapist suspect.

Back at Tech

Tim was a loner on campus in 1985. He’d tried out for the Tech basketball team in 1978, but transferred to San Antonio and later joined the U.S. Army after his unsuccessful run at a college sports career.

He worked a few short-term jobs in Fort Worth after leaving the Army in 1983, but nothing lasted more than a few months. Tim read an article in Money magazine, discovered he qualified for a guaranteed student loan and decided to go back to school. He’d thought about Texas Southern in Houston but asked his brother if he wanted the company.

“He came because I was in Lubbock,” Reggie said. “Because I was the middle child and Tim was always real protective of me, and I was the smallest one. So he always felt like he needed to keep an eye on me.”

He moved in with Reggie in January, intensely focused on finishing a business degree. Tim rarely left the house, his brother said, except to work or go to school or eat with his roommates. Reggie’s friends didn’t impress Tim, and he urged Reggie to cut back on the partying and focus on school.

Tim’s studies took their toll. Tech officers found him crying and shivering in a biology building classroom that spring. He passed out cramming for a test and frightened off a couple of janitors who woke him.

Tim tearfully told police the pressure of keeping his grades up to maintain his scholarship and not put any financial strain on his parents had worn him down. He was angry and disoriented. He tried to run as officers escorted him out of the building, afraid the incident would mar his scholarship. Officers tackled him and tracked his brother down to fetch him home.

They told Tim to talk to a psychiatrist and referred his behavior to the dean.

He’d also caught Lubbock police attention after only a few weeks in town. Tim flagged down an officer outside the Alamo Pool Hall, a spot with a rough reputation on the east side of town, claiming he was robbed by two men. He was carrying a weapon that police thought had been fired, and officers found marijuana. Police booked Tim overnight for misdemeanor drugs and weapons charges. Bagby was an arresting officer.

Police have their suspect

By late March, Clark’s arrest hadn’t stopped the attacks, and police needed a break. They set up surveillance around the Methodist parking lot, where two of the girls had been attacked.

Bagby, dressed like a student, parked in the church lot and slowly climbed out of the car under the watch of eight detectives. She crossed the street and walked into a dorm. After waiting awhile, she would return to her car, fumble with her purse for a minute or so, and leave.

She repeated this pattern five or six times throughout an evening, waiting for any approach from a black man. They waited past midnight.

No one took the bait the first Sunday of surveillance, or the next Friday.

The team saw Tim approach a white girl outside Mr. Gatti’s as they started the third night. Tim was sitting alone more than an hour later when Bagby walked in.

He was the only man to approach Bagby during the investigation. Detectives ran Tim’s name after his conversation with the officer and found his photo from the robbery report. They wanted a better one to show the most recent victim from the parking lot.

George White, a detective who knew Tim from the robbery call, visited the brothers’ rental apartment and shot a picture. The brothers thought it was strange but White told Tim it was for the robbery case and he consented.

Surveillance stopped.

No doubt in my mind’

The March victim knew Tim was her attacker the moment she saw his picture. Detectives visited her in the lobby of her dorm two days after Tim saw Bagby. She picked him out of a photo spread and initialed his picture.

“That’s him,” read the only note scrawled next to his face.

Detectives asked Tim to come to the police station for a lineup. He wasn’t sure about participating. He thought he might need a lawyer or to at least tell his mother.

The detectives said he didn’t need a lawyer or to worry his parents, Reggie said. They sat there for awhile, the police trying to get him in the lineup and the brothers unsure.

“Tim looked at me like, Well, OK,'” Reggie said. “We thought we were supposed to trust police officers.”

Tim and a group of four inmates walked into the brightly lit room. The observers walked, one at a time, to an area separated from the men by a mirror.

Two women who reported to police being approached by a black man in the neighborhood did not recognize Tim. A January victim looked for three minutes but could not be sure.

The victim in the December rape wavered on him, then later stuck with the police’s original suspect, Terry Clark.

The woman taken from the parking lot in March had no doubts. She barely stepped up to the mirror before pointing Tim out, detectives said later.

“I walked into the room and I immediately saw the person who raped me,” she swore in an affidavit after the lineup. “I am positive of my identification and there is no doubt in my mind.”

Police kept Tim on a $25,000 bond. Bail increased to $50,000 before Reggie could buy his brother’s release on suspicion he could have been involved in other rapes.

Reggie left the jail, went to work, and broke down sobbing in the Arby’s kitchen where he cooked. His friends couldn’t get him to stand up. They dropped him off at his apartment and put him to bed. Tim and Reggie’s mother, Ruby, arrived that night to gain Tim’s release the next day.

The brothers cooperated in a search of their apartment. A yellow shirt taken as evidence from their duplex didn’t match the victim’s descriptions or even fit Tim. She did not recognize the pocketknives police took during a search, or a ring recovered from Reggie’s room.

Forensics evidence – blood and hair requested barely a week before the trial began – couldn’t prove Tim committed the crime or rule him out as a suspect.

But the woman never wavered in her belief that Tim raped her. Kicked out of Texas Tech, Tim and Reggie returned to Fort Worth for more than a year to wait for the trial.

Tim was worried as they returned to Lubbock. They were going to get him for something he didn’t do, he told Reggie, who came to testify in his defense.

“Tim, we’ve got round-trip tickets,” Reggie said. “You’re coming back. And he looked at me and he smiled and said, OK.'”

Police felt certain Tim was their man. They noticed the scar on his thumb, just above the knuckle, the same thumb the woman bit – he told them he jabbed it on a fork at his dishwashing job. There was the weird behavior in his record. And, of course, they had the complete certainty of their victim.

“Is identification a bad way to prove a case?” District Attorney Jim Bob Darnell would ask the jury more than a year after the lineups. “If it is, 90 percent of the people that are in the penitentiary, you just let them go.”

The trial

Darnell had a rough year before the trial that September. Voters in May gave his job to his primary election opponent and long-time rival, Travis Ware. He was a lame duck prosecutor waiting to enter private practice in January.

Darnell was perhaps best known for winning death penalties in the three capital murder cases he tried and for unsuccessful campaigns against clubs staying open past midnight and pornography sold in the city. He was shy and quiet out of court, irritated with the political side of his job. Campaign posters advertised him as a “Prosecutor, not a Politician.”

Darnell had special empathy for victims of sex assaults, though he said he knew no one personally who was a victim of such a crime. Tech students, in particular, seemed vulnerable for such attacks. Many came from small communities and seemed unprepared for larger cities.

“That’s the one thing I remember about that girl,” Darnell said. “She was probably more naive about her surroundings than any other person I can remember.”

By then police had backed away from Tim as a suspect in multiple rapes. No physical evidence connected Tim to the crimes, and victims had not recognized him in the lineups.

But Darnell blocked near any mention of that in front of jurors. Police on the stand who more than a year earlier had hunted for a serial rapist made little comment on any connection to other rapes.

Again and again, Darnell hammered on how the witness had picked Tim out of the lineup. He just happened to be the only man to approach Bagby, he reminded jurors. And when Reggie and friends testified to Tim’s focus on school, to his presence at a party at his duplex the night of the attack, Darnell shredded the alibi apart by casting doubt on the memories and motives of the witnesses.

Tim’s defense attorney, Mike Brown, pushed back. Didn’t a victim confuse Tim for Terry Lee Clark? he asked the detectives. Didn’t police fail to find any physical evidence that this victim recognized? Didn’t the rapes in vacant fields by knifepoint continue after Tim’s arrest, like the ones committed by a violent offender, Jerry Wayne Johnson?

Darnell: “Are we going to try every rape that occurs in Lubbock County over a six month or one year period of time involving black males?”

There was still more reason to doubt, Brown said. Didn’t this victim fail to describe some of Tim’s more obvious features? Tim removed his shirt for the jury, showing his mottled back and arm, birthmarks that covered his upper body.

Darnell: “Is that person going to be embracing that individual and remembering everything about that person’s back when they are being sexually assaulted and their soul is being taken from them?” he asked days later in closing as the victim burst into tears.

The jury took six hours and ten minutes to convict Tim.

“Thank you,” she shouted, sobbing.

I didn’t do it, your honor’

They sent Tim home with his family that night, back to the hotel room where they had stayed through the trial. Reggie remembered his older brother, stoic through most of the trial, breaking down on their return.

“He hugged my mother and he said, Mother, why these people lie on me, why they do this to me?'” Reggie continued, choking up. “He said They know I ain’t done nothing to that girl. I don’t even know that girl! Why they do this to me, mother?’

“That was the only time I seen him show any emotion,” Reggie said. “And he cried in my mother’s arms on the floor.”

Jurors took five hours the next day to sentence Tim to nearly as many years in prison as he had spent on earth.

“Do you have anything at this time to say before the court assesses your sentence?” Judge Thomas Clinton asked.

“I didn’t do it, your honor,” Tim said.

He shook his head and began to cry as his Brown led him and his family from the courthouse.

“Of course, he was scared and he was emotional,” Brown said. “He struck me as so very young, and out of his element. An easy mark, I thought.”

He sobbed in his jail cell that first night of his 25-year sentence. Quiet and alone in a separate cell, another inmate listened as Tim protested his innocence to his cell mates.

He said nothing. But Jerry Wayne Johnson knew Timothy Cole told the truth.


Tim Cole sat in prison while another man knew the truth

By Elliott Blackburn | Avalanche-Journal
Sunday, June 29, 2008

Jerry Wayne Johnson was a scumbag.

A jury convicted him of raping a 15-year-old abducted from her high school at knife point. Another would convict him for tying up and raping another woman in a cotton field. He was long a suspect in the murder of an insurance saleswoman.

The lifelong eastside Lubbock resident didn’t find any sympathy from jurors when the cases worked their way through the court system in 1987.

A violent life

Johnson grew up on Lubbock’s east side, in a home with a small caf? along the train tracks and across the pasture from a cottonseed plant. People knew him as “Duck,” the name an older cousin gave him when he was a young boy.

Johnson caught police attention a few months after a string of rapes in the Texas Tech neighborhood in spring 1985. A woman accused him of raping her in a cotton field.

He’d grabbed a ride from a party with the 20-year-old mother of two and her 19-year-old male friend to pick up some beer from his house.

He came out of the house with something, she later told police, but not beer. Johnson twisted a rope around the man’s neck as they drove back to the party. He claimed to have a gun.

Johnson directed them to a cotton field near Martin Elementary School, the victims said, threatening to kill them as they walked. He made the man lay face down, and he raped the woman twice. Johnson then let them flee.

Police used his yearbook photo to identify him in the rape of the 15-year-old in September.

Johnson was free at the time on a $15,000 bond from the rape at the party. Classes had ended for the day, and the girl, an honors student and a virgin, thought he was a janitor. She asked if he wanted to buy any of the candy students were selling for a fundraiser.

He pulled a steak knife, held it to her neck and took her outside to his car. She saw her father pull into the school parking lot as they left the school. Her father didn’t recognize her, he later said, because of the man with his arm around her.

The student didn’t dare scream or run. “I was scared for my life,” she said. She was put on the floorboard of the car, driven to a remote field and raped.

Police also considered him a suspect in the death of an eastside insurance saleswoman. Mary Louise Smith was found beaten with a blunt object and strangled in a grassy field in northeast Lubbock.

Johnson returned to jail on a $2 million bond, the highest ever set at the time.

He always maintained his innocence in the student’s rape. Johnson’s wife testified he was at a family member’s junkyard finding car parts at the time of the attack. But school employees told police they saw him in the building that afternoon.

Jurors took just 80 minutes to convict him a year and a half later. In another 90, he was sentenced to life in prison. Another jury added 99 years to his sentence a few months later for the rape of the 20-year-old from the party.

In both cases, Johnson told the media the verdicts were racially charged.

Tim’s appeal

Police could not connect Johnson to Smith’s murder, and the case went cold. They never connected Johnson to the Tech rapist crimes, either. Johnson’s attacks occurred in a different neighborhood.

The victim who accused Timothy Brian Cole never saw Johnson’s photo or looked at him in a lineup. Tim’s defense attorney, Mike Brown, could not push during Tim’s trial his theory that Johnson had committed the March 1985 rape.

Brown carried the theory through the appeals process. He argued the jury should have been allowed to hear the striking similarities between the March rape and another attack in the same parking lot in February.

The woman was taken by an attacker fitting the same description and following the same methods.

The victim never identified Tim, and fingerprints recovered from the earlier victim’s car didn’t match. The circumstances should have raised doubt Tim was involved in almost the same crime more than a month later, Brown argued.

He complained he could not cross-examine the forensic work in the case, either, since the chemist who performed the test sent a subordinate working off of notes to the trial.

Tim lost his immediate appeal in Amarillo. But a higher court chose to take up the issue in 1990, and agreed years later with Brown’s argument on the forensic evidence. The case shook up trial law across the state but the victory proved bittersweet.

Tim’s fight for innocence stopped.

Yes, the trial court had erred in admitting the evidence, the appeals court ruled, remanding the case to a lower court. But the error in forensics testimony was not significant enough to warrant a new trial, the appeals court found. The court also found the fingerprint evidence collected too weak to matter to a jury.

They had won the battle and lost the war.

Hundreds of miles away in a prison outside of Snyder, Johnson waited with an eye on the calendar and his thoughts to himself.

I’m going to leave here a man’

Tim kept a brave face for his family in prison. Letters they shared don’t complain about his incarceration or betray his fears.

Still dedicated to the degree he’d never earn from Tech, he laced correspondence with business tips. He drafted a plan for a company to service telecommunications companies, and finished a small business management program by correspondence.

Tim always assured his family he was fine and quickly turned to how things were going with school or work, said Cory, his youngest brother. Subscriptions to business magazines and newspapers began popping up in his brothers’ mailboxes along with lengthy letters encouraging them to pursue school and good jobs.

“By the time you read your weekly letters, you swore you read a novel,” his brother Rodney said.

Only two family members were allowed for Tim’s first contact visit, and Reggie and Ruby traveled with his step-father to the prison south of Houston. Months into his sentence, Tim was good spirits, Reggie said.

“It was,” Reggie said, pausing. “It was different.

“He came out, he was smiling, he was upbeat, and he told me what it was like in there. He said, You know, I came here a man and I’m going to leave here a man.'”

Ruby clasped her shoulders and beamed at the memory of that first meeting when she could hug her son again. She was proud he had not sought some sort of deal and pleaded guilty to the crime she didn’t believe he had committed.

But Ruby feared prison more than when Tim first left home, more even than Tim’s enlistment in the U.S. Army. The dust, the inmates, the hardship: knowing her asthmatic son sat in jail terrified her. She remembered waking to the sound of her child struggling for air in the middle of the night and rushing him to the emergency room.

He could go months without incident by the time he reached college, and a quick spray of his atomizer quelled any breathing problems. But prison was different, Ruby knew.

Tim transferred constantly, skipping back and forth between hospital prison units and cells outside of Dallas, Houston and Amarillo, never managing a single stretch longer than three years. The heat, dust and industrial air conditioning harassed his lungs constantly.

“Sometimes I’d have nightmares, because he was sick,” Ruby said. “I thought about him being down there in the dust and the dirt, and they tried to have him go work in the fields. He wasn’t able to do that. He was just housebound all those years.”

Johnson’s confession

Johnson bided his time at the Price Daniel Unit outside of Snyder. His own appeals failed. Nearly a decade had passed since the young Tech sophomore had been taken from the church parking lot. Johnson figured it was time.

“I knew that I probably couldn’t be charged with the crime,” he said. “And it had a lot to do with my case and my trials had a lot to do with me not coming forward before that. And that’s understandable, but, pretty much I just knew that that was the time, you know, to try and free him.”

He asked in a February 1995 court filing to be put in touch with Mike Brown and for a judge to consider a confession he wanted to make. Nine years after Tim went to prison, Johnson wrote the Lubbock district clerk that he had committed the rape keeping Tim behind bars.

A family’s pain

Tim’s conviction punched a hole in the tight-knit family. They had depended on him, the eldest of seven children, while Ruby taught and finished a college degree. It was Tim who woke his siblings, cooked breakfast, packed lunches and made sure they went to school on time. In the evening, he made sure the house was clean, homework was done, and, with a wet belt, discipline was kept on the rare occasion someone stepped out of line.

“Tim was 10 going on 25,” Reggie said. “He was the man of the house, and what he said, went.”

Despite the frailties his asthma caused, his brothers described him as a neighborhood sports hero and role model. Everyone called him Ears, for the most distinctive feature of his young face. His siblings adopted his clothes, his sports and tried to tag along with his friends. Tim was a front-yard quarterback and a trash-talking competitor on the basketball court. Even friends who knew him from the street remembered him as an older brother who made sure the young kids had a chance to play.

“When they took him from us they took a big chunk of my family away from me,” Reggie said. “Because we were like – we didn’t know what to do, to be honest with you.”

Hope flickered out as the appeals process closed without Tim earning a new trial. The family resigned to a lengthy prison stay, to waiting for his parole eligibility.

Reggie began to blame himself for his brother’s problems. After the visit at the prison that day, he tried with little luck to interest a magazine writer in his brother’s case.

He traveled to Austin, to the court of appeals, to be told he needed a lawyer to fight his brother’s cause. Having been kicked out of Tech after the conviction and gone to the University of Texas at Austin, he chose to join the Marines. But it only lasted a few months as he descended into more than a decade of short-term jobs, cocaine abuse and jail stays.

He hid the problem from his brother.

“He would have kicked my ass,” Reggie said. “I was too embarrassed. I was too ashamed to let him know I was in prison.”

Rodney began to abuse drugs, too. Kevin, the second oldest in the family, struggled to fill shoes “as big as a van” his brother left behind. Cory began to handle family business as brothers closer to Tim grappled with his imprisonment.

Whispers and questions along the street that once hailed Ears began to gnaw at the family, too. Friends who knew Tim well never doubted his innocence. But even family members began to talk as if he faced what he deserved. The family began to feel marked.

“Not very many gave him the benefit of the doubt,” Rodney said.

The life Tim wanted began to slip away as the years wore on, and frustrations emerged. The idea of attending his stepfather’s funeral shackled and under guard humiliated him, and he did not attend. He refused to see his nieces and nephews while in prison.

“I’ll see them when I get out,” he told his youngest brother Cory.

He had not earned his college degree or pursued his business career. He had not bought a house. He was 33 years old and had not met the nice, church-going lady or raised the family he and his mother wanted.

“I don’t have anything but a lot of time to think about it, just think about it, 24 hours a day, seven days a week,” Tim wrote his mother. “How soon it will be over and life starts anew. Don’t worry. I’ll be fine.”

Confession ignored

The district attorney’s office offered to draft an order that would appoint Johnson an attorney soon after he filed with the court in 1995. Months passed. Johnson wrote in July. Did the clerk receive his documents? he asked. She responded the next day, confirming they had.

Five years passed.

Johnson wrote again to a supervising judge. He worried there was an effort to conceal a wrongful conviction. He couldn’t understand why the case wasn’t being pursued.

“Judge its hard to amagine attorney Mike Brown has made [no] attempt to contact me to start the process of getting information to finally prove his client was in fact innocent but wrongfully convicted,” Johnson wrote. “It is more hard to amagine when you look at the documented fact that Mike Brown sought to show at the mans trial that I committed the crime.”

The case was transferred in a reshuffling of the courts not long after his letter. In a one-sentence filing issued six months after he asked why nothing had been done, another judge dismissed the case.

“The cause having been transferred to this Court, it is ordered, without necessity of a hearing, that the relief requested in the petition herein is denied.”

Tim never knew about the attempted confession. Neither did his family.

Months before Johnson renewed his attempt to confess for the crime, a prison guard was looking for Reggie and Ruby was screaming at the telephone.


Tim Cole’s Family gets DNA report proving what they always knew

By Elliott Blackburn | Avalanche-Journal

Monday, June 30, 2008

Ruby told Tim all about the letter. A man named Jerry Wayne Johnson was promising to confess to the rape that kept her eldest son behind bars for 13 years.

There was a lot of work still to do, Ruby told her son. They’d have to prove Johnson’s claims, somehow, and no one knew if that was possible. But there was hope enough for the 71-year-old woman.

Eight years had passed since prison dust and Tim’s asthma killed him. For the first time since his death, his family really believed there was a chance to clear his name.

“When you have a child, there are commitments you make to them, promises,” she said later. “And we try to keep every last one of them.”

Her small frame paused as she pushed up from the ground next to Tim’s headstone. Ruby’s voice barely carried past her lips.

“It’s going to be OK,” she told her son.

The letter

Six years had passed since 2001, when a judge dismissed Johnson’s attempted confession to the crime that imprisoned Tim. Only five had passed since legislators granted Texas prisoners access to post-conviction DNA testing.

Johnson tried again, from his cell near Snyder, to alert Tim Cole to his confession. He figured Tim would be out of jail on parole now. Johnson’s mother found an address for Ruby, and the prisoner wrote a letter addressed to Tim Cole on May 11, 2007.

“I have been trying to locate you since 1995 to tell you I wish to confess I did in fact commit the rape Lubbock wrongly convicted you of,” Johnson wrote. “If this letter reaches you, please contact me by writing so that we can arrange to take the steps to get the process started. Whatever it takes, I will do it.”

Tim’s brother Rodney thought the letter was a sick joke when he first saw the envelope in the mailbox. Then he began reading and shouting for his mother.

“My husband left this earth with the same prayer that I’ve had all these years,” Ruby said. “That one day, maybe somebody would own up to it. Now that’s what this said in this boy’s letter.”

But the confession posed its own problems. Johnson’s word was not enough to overturn a jury verdict; that required hard evidence, like a DNA test. No one knew if testable material existed from a 23-year-old case.

There was another problem. If the claim was true, then Lubbock was about to enter untested legal waters.

Lubbock County has performed half a dozen post-conviction DNA tests, District Attorney Matt Powell said. All were on living prisoners, and all confirmed the original verdict.

Experts are aware of no posthumous DNA exoneration in the state of Texas. State law offers no clear instructions as to how to handle such a problem. Because there was no one to free, the county was under no obligation do anything regarding the case.

From the stands of a Little League baseball game last spring, Powell promised to find the truth behind the letter. If there was a way to prove Johnson was lying or honest, the office would find an answer, he said.

“If one innocent person is put in the pen, that’s a travesty of justice,” Powell said.

The ecstatic family began contacting media outlets, including the Avalanche-Journal. Johnson learned Cole had died from the reports that followed.

“When I read in the report that Mr. cole had died in prison in 1999, I cried and felt double guilty, even though I know the systems at fault,” Johnson wrote to a reporter two weeks later.

“A day later, I am still bothered, terribly, by the death revelation. Because, not knowing Mr. Cole at all, I wonder if the wrongful incarceration contributed to his death.”

Tim is gone

Tim died Dec. 2, 1999, a grown man felled by a childhood disease.

Prison conditions took their toll on his asthma. He never managed more than three years without a trip to infirmary units or the Galveston hospital throughout his 13-year prison stay. Lifelong breathing problems his brothers thought Tim conquered by college killed him.

Ruby learned a day later, having missed the chaplain’s calls the day Tim died. Kevin took the call for his mother, and immediately called Cory at work.

“All I could hear in the background was screaming,” Cory said. “They just said, come home.'”

Reggie would hear the news from another prison chaplain. Struggling with drug and alcohol problems he hid from his older brother and guilt over Tim’s arrest he concealed from his family, the middle child was nearing the end of a five-year drug sentence.

He remembered praying on the walk to the chaplain’s office that his mother was all right. He sat down and saw Kevin’s name on a sheet of paper on the chaplain’s desk. So the news about Tim stunned him.

“That was the worst day of my life,” Reggie said.

Tim’s death dashed the little hope the family kept as the year 2000 approached. Feeling their appeals exhausted and resigned to wait for probation, Tim had faith that new technology allowing DNA testing would help prove he couldn’t have raped a terrified Tech student in 1985.

In the end, there wasn’t time. He went to the grave a rapist in the eyes of the state and whispering neighbors.

His death was a bitter reminder to Ruby of all the things he had missed in his life. He had no wife or children; death certificates and insurance paperwork came to her. She collected, too, his few possessions, including years of letters from his brothers and sister.

“I think about the Sunday I sent them to Lubbock,” Ruby said. Tim’s defense attorney wanted Tim and Reggie back a day before trial.

“That particular Sunday, I didn’t, we didn’t fix dinner,” Ruby said. “We ate Kentucky Fried Chicken. And I regret that to this day. My child never sat down at the table and had another meal at this house. So many things, stuff like that.”

The family’s fight continues

Tim’s family knew well by the summer of 2007 the speed of justice. They said, over and over, Johnson’s letter was proof enough to them Tim had not committed the crime. But they knew they needed stronger proof to clear Tim’s name for everyone else.

Lubbock’s district attorney’s office first pulled records to see if it was even possible that Johnson could have done the crime. George White, a detective on the original case and now administrator for the district attorney’s office, helped with the investigation.

The Innocence Project of Texas, a non-profit firm of students and attorneys that work on wrongful conviction claims, interviewed Johnson and checked his background to rule out any connection to Tim’s family.

Both groups warned the family and reporters that many inmates make unfounded claims. Both continued to follow the case.

DNA evidence has exonerated 33 inmates so far in Texas, more than any other state. The Dallas area has cleared 19 since 2001. Tim’s family watched relieved and happy innocent men on the nightly news in Dallas, where most of the wrongful convictions have been overturned. Many of the cases hinged on the same problems alleged in Tim’s case – faulty identification or forensics problems.

Months piled up without news. Updates from the district attorney’s office trickled out. Johnson wrote that he’d stopped hearing from Innocence Project staff.

To have hope revived and then delayed again renewed two decades of frustration. The family worried Tim’s case had stalled again.

“I know he’s deceased,” Cory said in February. “That’s why it’s just more and more important to us. Everybody wants to hear about someone who got out of prison and they’re moving on with their lives. Well, we want to hear about someone who didn’t deserve to go to prison.”

The DNA test

Johnson met with the Avalanche-Journal a few weeks after his letter came to light.

He discussed his memory of the rape and of Tim in a deliberate, matter-of-fact tone. Johnson was critical of the attorneys appointed to handle his own appeals and DNA requests.

He has not explained why he committed the rapes. The girl, he said during an interview at the Price Daniel Unit last June, just happened to be the first to pull into that cold church parking lot in March 1985.

Johnson chuckled when asked what he was doing in the parking lot in the first place. He was working for a rental car company and on sick leave at the time of the attack. He lived and worked nowhere near campus.

“Why?” he asked from behind the thick blue bars of the Price Daniel visiting room. “C’mon, man. I just told you.”

But Tim’s death and the family’s pain troubled him. He wanted to know his discussion of the crime with the media would help the family. He passed along apologies to Tim’s mother and to the victim.

“I cryingly regret how I acted against you and I know this apology cannot and will not ever remove the misery and pain my actions caused you to suffer then and now,” Johnson wrote about the student he raped. “I just hope and pray that my coming forward and admitting my guilt conveys that I’m truly sorry and seriously remorseful. I am. I wish you well.”

The correspondence decried racism, faulty forensic practices in the 1980s and poor legal work he blamed for Tim’s treatment and his own failed attempts to prove he was innocent in the rape of a 15-year-old student from 1985. He repeatedly criticized the crime lab work from the era, which he feels should be reviewed.

Johnson grew wary, too, of the investigation of his claims.

Innocence Project staff disappeared, he reported, frustrated. When Lubbock investigators visited him in Snyder to discuss taking DNA samples and see the letters he wrote confessing to the crime, he doubted the truth would come out.

“It was because of their strong interest in wanting the correspondence I possess dating back to 1995 that led me to think that the DA office may be more interested in finding to what extent the case will generate wrongful conviction publicity and what affect it would have on the Lubbock criminal justice system than the cause for the conviction,” Johnson wrote.

But the Lubbock district attorney’s office was investigating.

Lubbock investigators found evidence from Tim’s case gathering dust in the county archives last fall. The Department of Public Safety’s crime lab confirmed the material could be tested.

They took two samples, more than needed, from Johnson in April. In May, they quietly received the results of the DNA testing.

Johnson raped the Tech student.

That should never happen’

White and Judge Jim Bob Darnell, the prosecutor in the case, struggled to remember details of the Cole case 22 years after the trial. The case was tried using the best information and techniques available in 1986, both said.

The district attorney’s office used today’s best techniques available to finally settle the case, White said.

“When this other information came up, we worked hard on that and I hope finally got to the truth of the matter,” White said. “Because that’s what we was after all the time, was the truth.”

When asked if he owed the family an apology, he said he had not yet thought enough about it.

“It’s unfortunate the way it happened, but I can’t answer that,” White said. “You always hope you never get involved in something like this, but things happen.”

“There’s only one perfect system and one perfect individual,” he added. “I don’t think here on Earth we have it right yet.”

Darnell, now a sitting district judge for more than a decade, did not know whether to apologize, either.

“I always had a great empathy for young women who were placed in that situation,” Darnell said. “But on the other hand I feel really bad about what happened to Timothy Cole. That should never happen to anybody.”

Cases so heavily based on eyewitness testimony became more rare since the 1970s and 1980s, he said. DNA evidence, though not always available, helped reduce but not eliminate chances of another wrongful conviction.

Darnell kept his faith in the justice system. He was at a loss, though, of what to say about Tim’s case.

“There’s not a whole lot you can say to the point of someone’s life being taken, knowing that probably wouldn’t have happened but for the fact that he was convicted,” Darnell said.

Powell, Lubbock’s current district attorney, was proud his office had determined the truth behind the rapes and frustrated he could not charge Johnson with the crime.

“He’s not stupid,” Powell said. “Everyone wants to paint him as a good guy, but he’s far from it.

“If I could prosecute him, I guarantee that would happen. If I had any legal recourse against him he’d already be indicted.”

He was less certain with what he could legally do for Tim Cole. His office had already done much more than the law required, he reminded a reporter repeatedly. Now he was leery of setting the precedent for an unprecedented legal problem.

“If the guy was alive, that would be easier,” Powell said. “There’s a process in place for that. But because he died, there’s no legal process or remedy in place for that.

“We’ll do what we can to clear the guy’s name.”

Texas Innocence Project attorney Jeff Blackburn requested on Friday a court of inquiry be held on Tim’s case. The process would use a rarely tapped power allowing a Texas district judge to start an investigation into violation of state laws.

“If we’re going to live in a society where the court system operates in a fair way, then it’s got to do it across the board,” Blackburn said. “They have a right to have a court of record tell them that their son was innocent.”

The filing requires a district judge to recommend the hearing. If a Lubbock judge chooses not to, the law allows Blackburn to take the request to any other judge in the state.

“We will go to every single district judge until we find one that thinks something ought to be done here,” Blackburn said. “I hope I just mean that rhetorically.”

The news finally arrives

Tim’s family learned the news confirming what they had long known on a Thursday morning in late June. They filled Ruby’s southeast Fort Worth living room with friends and family members who could make the sudden trip to hear the results of the DNA test.

There was quiet relief at first; the satisfaction of knowing that finally, everyone would admit what the family knew about Tim.

But there was a bitterness to the news, too, and echoes of how the family struggled with Tim’s death. With the truth out, memories of the trial and Lubbock media coverage of their son and brother, of the investigation that snared Tim, and of the way the case was presented in court bubbled back up.

The brothers faced, once again, all the opportunities Tim wanted for them and never had for himself. Ruby broke down thinking of his death in a jail cell, miles from his family.

They hoped, somehow, through a court of inquiry or through changes in state law, Texas could work to ensure no family ever went through what they suffered.

“The pain, the heartache and the sense of loss – all those things that we’ve experienced, we don’t want for anyone else,” Rodney said. “If his death accomplishes that, then his life was not in vain. That’s basically our ultimate desire.”

There have been signs of healing since Johnson’s letter last spring. Rodney has returned to college. Reggie, having confronted what he believed caused his descent into alcohol and drug abuse, is nearing the end of a treatment program and optimistic about a future in Austin.

Ruby, still troubled by Tim’s death and his conviction, found the peace and proof she wanted to see in her lifetime.

Reggie found the words for two decades of pain and guilt in a palm-sized brown Bible from the coffee table. He leaned back into the couch next to his mother.

“Hope deferred makes the heart sick,” he read from Proverbs. “But when desire comes it is the tree of life. So now that my desire come, me, I can grow like a tree – my family, we can all grow as a tree.”