The Tim Cole case is the story of a Texas Tech University student and Army veteran wrongfully convicted of a 1985 Lubbock rape, sentenced to 25 years, and left to die in prison in 1999 before DNA and the real attacker’s confession cleared his name. His 2009 posthumous exoneration and 2010 pardon — the first in Texas history — pushed the state to rewrite how it compensates the wrongfully imprisoned and how police conduct eyewitness lineups.
The 1985 Attack and a Suggestive Lineup
On March 24, 1985, Michele Mallin, a 24-year-old Texas Tech student, was abducted at knifepoint from her car near her dormitory, driven to a field, and sexually assaulted. The attacker smoked throughout. Timothy Cole, also 24, became a suspect after speaking with a detective near the crime scene.1Innocence Project of Texas. Timothy Cole
Police showed Mallin a photo array in which Cole’s picture was a Polaroid of him facing the camera. The other five were standard mug shots of men in profile. Mallin picked Cole from that lineup and again from an in-person lineup.1Innocence Project of Texas. Timothy Cole
Cole had severe asthma and did not smoke. Fingerprints from a similar assault in the area did not match him. The trial judge barred the defense from putting either the other crimes or the non-matching prints in front of the jury.1Innocence Project of Texas. Timothy Cole
Trial and 25-Year Sentence
Cole went to trial in Lubbock in 1986. Prosecutors relied on Mallin’s identification and forensic testimony about blood-type matching from seminal fluid recovered at the scene; hair analysis was inconclusive. His brother and five friends testified he had been at home studying. His attorneys highlighted his asthma and the impossibility of him being the chain-smoking assailant Mallin described.2Innocence Project. Timothy Cole
On September 17, 1986, the jury convicted Cole of aggravated sexual assault. He received 25 years. He turned down plea offers that would have shortened his sentence because they required an admission of guilt, and he maintained his innocence until his death.3KCBD. Justice for All: How Tim Cole’s Case Changed Texas’ Legal System
The Real Rapist Confessed. For Years, No One Listened.
The actual attacker was Jerry Wayne Johnson, a serial sexual predator active around the Texas Tech campus in 1985. Johnson was first convicted of rape in 1979 and received probation. In July 1985 he was arrested for another rape, and while out on bond that October he kidnapped and raped a 15-year-old student. He was ultimately sentenced to life in prison for those crimes.4Mother Jones. Tim Cole and Rick Perry
Johnson later said he had been in the Lubbock County Jail with Cole after Cole’s sentencing but stayed quiet because he was facing the death penalty on a separate murder charge. In 1995, once the statute of limitations on the Mallin rape had expired, he began writing to Lubbock County police and prosecutors confessing. Those letters went unacknowledged. A 2000 letter to a supervising judge was reassigned and rejected without comment. In 2005 he wrote to the Innocence Project.2Innocence Project. Timothy Cole4Mother Jones. Tim Cole and Rick Perry
Cole died of an asthma attack in a Texas prison in December 1999, 14 years into his sentence, never knowing that his rapist had tried to come forward.5KCBD. Vindication, Exoneration, Pardon: How Tim Cole’s Family Cleared His Name
How the Family Cleared His Name
Cole’s mother, Ruby Session, and younger brother Cory Session refused to let the case sit. In May 2007, Johnson’s confession letters finally reached the Innocence Project of Texas and the Cole family. Cory Session worked with reporter Elliott Blackburn to publicize the case, and the resulting pressure moved the Lubbock District Attorney to authorize DNA testing of the original rape kit.6iHeart. Jason Flom on Tim Cole The results excluded Cole and matched Johnson.5KCBD. Vindication, Exoneration, Pardon: How Tim Cole’s Family Cleared His Name
Mallin, who had by then learned the truth, visited Ruby Session in Fort Worth in September 2008 to ask her forgiveness. “I have nothing to forgive you for,” Session told her. “You were victimized, just like he was.”7Innocence Project. Rape Victim Seeks Posthumous Exoneration of the Man She Misidentified The two then worked together to pursue formal exoneration.8NPR. Inside the Case to Exonerate Timothy Cole
With no living defendant, attorney Jeff Blackburn built the case on two rarely used Texas provisions: one allowing a judge to convene a court of inquiry into the facts of a crime, another permitting a judge to clear a deceased person’s reputation.9Lubbock Avalanche-Journal. Creative Process Used to Grant First Posthumous Pardon in Texas10VPM/NPR. Judge Posthumously Clears Man Convicted of Rape11Prison Legal News. Texas Posthumously Exonerates Man Who Died in Prison
On April 7, 2009, Judge Baird issued a formal opinion declaring Cole innocent “to a 100 percent moral, legal and factual certainty.” He called the post-conviction system “bureaucratic and hypertechnical,” noting that actual-innocence claims were routinely lost on procedural grounds unrelated to the merits. It was the first posthumous exoneration by a Texas judge.11Prison Legal News. Texas Posthumously Exonerates Man Who Died in Prison
On March 1, 2010, Governor Rick Perry issued the first posthumous pardon in Texas history, acting on a recommendation from the Board of Pardons and Paroles. Then-Attorney General Greg Abbott had confirmed the governor’s constitutional authority to do so in a January 2010 opinion.12Texas Tribune. Perry Pardons Tim Cole13Texas Tech University School of Law. Timothy Cole
The Tim Cole Act
The exoneration prompted Texas to overhaul how the state pays people it wrongfully imprisoned. Governor Perry signed the Tim Cole Act in 2009, effective September 1 of that year.14Texas Legislature. House Bill 1736 Its core provisions:
- $80,000 for each year of wrongful imprisonment, plus $25,000 for each year on parole or as a registered sex offender.
- Compensation paid as a lifetime annuity in equal monthly installments, calculated at five percent annual interest on the total award.
- Tuition and mandatory fees for up to 120 credit hours at a public university or career center.
- Life-skills training, job and vocational services, medical and dental care, mental health treatment, and help obtaining identification documents.
- Lump-sum compensation to heirs and the estate if the exoneree has died.
Under this framework, the Cole family received just over $1 million for the years Timothy spent wrongfully imprisoned.15KWTX. Nearly $100 Million Paid to Wrongfully Convicted in Texas Since 2009
Eyewitness Reform and the Cole Review Commission
The 2009 legislative session that passed the compensation statute also passed Senate Bill 117, which declared mistaken eyewitness identification the leading cause of wrongful convictions in Texas and required every law enforcement agency in the state to adopt written lineup policies. Agencies had to implement blind administration when practicable, record procedures on video or audio, obtain written certainty statements from witnesses before revealing results, and use fillers matching the witness’s description. A 2017 amendment required that in-court identifications be accompanied by details of every prior out-of-court procedure, and it mandated eyewitness identification training for all officers conducting lineups.16Texas Legislature. SB 117 Analysis17Innocence Project. Eyewitness Identification Reform in Texas
In 2015, House Bill 48, authored by Representative Ruth Jones McClendon and sponsored in the Senate by Rodney Ellis, created the Timothy Cole Exoneration Review Commission. It passed 134 to 6 in the House and unanimously in the Senate, and Governor Abbott signed it on June 1, 2015.18Texas Legislature. HB 48 History19Texas Judicial Council. Overview of HB 48 The nine-member commission was charged with reviewing every case in which the Court of Criminal Appeals had granted a writ of habeas corpus based on actual innocence since January 1, 1994, identifying root causes and recommending changes.20Texas Legislature. HB 48 Analysis
Its December 2016 final report recommended electronic recording of all felony interrogations, with unrecorded statements presumed inadmissible; jailhouse-informant tracking systems and disclosure of impeaching information by prosecutors; stronger eyewitness identification training and jury instructions on prior identifications; and improvements in forensic science, including full lab testing of drug substances rather than reliance on field tests.21Texas Courts. TCERC Final Report
The Statue in Lubbock
On September 17, 2014, the 28th anniversary of Cole’s conviction, a bronze statue by artist Eddie Dixon was unveiled at 2500 19th Street in Lubbock, in what is now Tim Cole Memorial Park. The figure stands near the Texas Tech campus where the crime occurred, its gaze directed toward the university’s law school. Former Lubbock City Councilman Todd Klein described the memorial as both a “teachable moment” for future judges and prosecutors and an official act of reconciliation from the city.22Lubbock Avalanche-Journal. Statue of Tim Cole to Be Unveiled