CrimProf Blog

Editor: Kevin Cole
Univ. of San Diego School of Law

Monday, December 29, 2008

State senators study case of innocent man who died in prison

Legislators may change state law to recognize the innocence of a Fort Worth man convicted in Lubbock more than 20 years ago.

State Sens. Robert Duncan, R-Lubbock, and Rodney Ellis, D-Houston, may clarify how the state compensates and exonerates wrongfully convicted inmates who die in prison.

The work, along with recognition by Texas courts, could bring closure after 22 years to the family of Timothy Brian Cole and formally recognize what could be the country's first posthumous exoneration.

"I think we need to recognize that for the family," Duncan said. "When the government deprives somebody of liberty, that's a pretty significant right."

Texas has cleared nearly three dozen inmates through DNA testing over the last 14 years. Officials could not name a case in this state or another where testing has uncovered the innocence of the dead.

Legislation Duncan authored seven years ago gave inmates with a legitimate innocence claim easier access to DNA testing. A separate bill by Ellis laid out rules for compensating the innocent Texas had imprisoned.

"I think this basically improves the reliability of our prosecutions and, hopefully, provides some assurance to the public that the criminal justice system has checks and balances," Duncan said in a late November interview. "Hopefully, maintains the integrity of the justice system."

Duncan's bill took effect in April 2001. He knew proponents believed DNA would clear many inmates. But he never expected the state would find 35, he said.

"I just remember thinking that day, You do some things in the legislative world, but we made a difference in those guys' lives," Duncan said.

The new rules renewed Jerry Wayne Johnson's interest in a long-settled rape case.

The former Lubbock resident hoped to clear himself in the rape of a 15-year-old girl abducted at knife point from her high school. A Lubbock jury gave Johnson a life sentence for the crime in 1987 after two eyewitnesses put him at the scene.

But from his state jail cell outside of Snyder he began to work on another case as well. He looked for an inmate he said he heard sobbing in a Lubbock County cell hours after a Lubbock jury convicted the man of rape. Johnson knew that Tim Cole was innocent.

Johnson had tried to draw attention to the case years before, after he knew the statute of limitations for the crime had expired. More than 20 years after a black man abducted and raped a Texas Tech student from a church parking lot, Cole's mother read a letter from Johnson promising that a DNA test would prove that he, not Cole, had committed the crime.

Cole died in prison of an asthma attack in 1999. The former Texas Tech student maintained his innocence to the end, and in 2008, DNA testing requested by the Lubbock County District Attorney's office proved he had told the truth.

But the legislation Ellis and Duncan moved through the 2001 session assumed the inmate would be alive to press his claim. It never occurred to Ellis that evidence could come forward after an innocent man had died.

"His case is another example of the need for Texas to take responsibility and, at the very least, compensate the families of the wrongfully convicted in these posthumous exoneration cases," Ellis said. "If I had thought of a circumstance like this, I would have handled it in the bill to begin with."

Instead, the lone amendment attached to the bill legislators passed specifically excluded payments to the spouses or estates of wrongfully convicted Texans once they have died.

Counties and law enforcement agencies must only keep DNA evidence or other materials tied to a case so long as the inmate lives, under Duncan's legislation. The law does not compel the testing that Lubbock's district attorney's office preformed - even the existence of the evidence after so many years was a fluke.

Duncan and Ellis said ahead of the session they would work on whatever means it took to make the laws reflect issues brought about by Cole's case. [Mark Godsey]

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