Innocent man who died in jail sparks DNA revolution
WHEN a man approached Michele Mallin in a carpark and asked her to help start his car with jumper cables, she was unaware her life - and that of an innocent man - was about to change forever.
It was March 24, 1985, and Mallin, a 24-year-old Texas Tech student, was parking her car across the road from her dormitory in the small town of Lubbock, a city in northwest Texas.
But the man wasn't interested in jumper cables. Instead, he reached through her car window, unlocked the door, held a knife to her throat and ordered her to lay down in the car while he moved into the driver's seat.
She lay, terrified, on the passenger side as the man drove her to a vacant field outside town.
Michele was raped and robbed that night. Afterwards the man drove her car back to town, took $2 in cash, her ring and her watch. Then he exited the car and walked away on foot.
Distraught, Michele went to the police and reported the attack.
Michele was able to provide a good description of her attacker. He was a young man, Michele recalled, wearing a yellow shirt and sandals and he smoked cigarettes throughout her ordeal. He was "bug-eyed" and less than six-feet tall.
Two weeks later, when police showed Mallin a photo line-up of six suspects, she was sure she was pointing out the right guy.
"That's him," she said without hesitation.
Timothy Cole was convicted of rape, then died in prison before being found innocent. Picture: Supplied
New DNA evidence shows Timothy Cole didn't commit the rape.
The man was Timothy Cole, a 26-year-old army veteran who was studying business at the same university. On the night Mallin was attacked, he was studying at home while his brother hosted a card game. But his alibi meant nothing to police.
Cole was identified as a suspect after he was spotted by a detective at a pizza restaurant two weeks later near the location of the attack.
An in-person line-up after the photo line-up included Cole, and Mallin again identified Cole as her attacker, despite victims from other rapes that had occured around Texas Tech failing to do the same.
Based on Mallin's identification, Cole was arrested and charged with aggravated sexual assault. In court, Mallin testified and identified Cole as the perpetrator. Her testimony sealed the deal.
Police linked Mallin's rape with the four other attacks that had occured on the campus.
The Texas Tech rapist as visualised in the papers at the time.
Water is poured for Michele Mallin during her testimony during a court hearing Thursday, Feb. 5, 2009, in Austin, Texas. Picture: Harry Cabluck
Cole's lawyers argued in court that attacks bearing similarioties to Mallin's continued in the week's after Cole's arrest, and that fingerprints found in another victim's car did not match Cole's. But the judge wouldn't allow any of it to be part of evidence.
There was more; Cole wasn't a smoker. And friends testified he was at home while his brothers' friends played poker.
After just six hours of deliberation, Cole was convicted and sentenced to 25 years in prison.
The prosecution offered him parole if he admitted guilt, but he refused.
He never made it out. Cole died in prison of a massive heart attack in 1999 due to complications from asthma. He spent thirteen years in jail - and devastatingly, never knew what was to come after his death.
The true tragedy of this case stems from the fact that just three days after Cole's arrest, police had in fact captured the real perpetrator. They just didn't know it.
"They had arrested a guy after my brother who had committed a rape the exact same way that my brother was charged with. Walked up to a car at night, asked for jumper cables, forced his way in," Corey Session, Cole's brother, told the Truth and Justice podcast.
"Turns out he'd done another one (rape), two others after my brother was accused. Thing is they said Tim was there to calm the fears of the public. People were withdrawing their children from Texas Tech university and sending them back home (due to fear over the rapist).
"They nabbed him, he (Tim) had a pristine record, meanwhile the person they did arrest had already been convicted of aggravated rape when he was a juvenile in Lubbok, but they never put that guy in a line up.
"Guess what? 25 years later, that's who it was, the person they arrested three days later, after Tim. They were too cocky ."
The real perpetrator was Jerry Wayne Johnson, who in 1995, ten years after the attack and after the statute of limitations had run out, wrote letters to police and prosecutors confessing to the crime.
"You may recall my name from your 1986 rape trial in Lubbock," says the letter, dated May 11, 2007.
"Your Lubbock attorney, Mike Brown, tried to show I committed the rape.
"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. It is very possible that through a written confession from me and DNA testing, you can finally have your name cleared of the rape ... 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."
Johnson was already in prison serving a 99-year sentence for two sexual assaults at the time.
The letters were never answered.
Cole died unaware the real rapist was attempting to confess to the crime he was imprisoned for.
Eventually, the Texas Innocence Project stumbled upon the letters and sought posthumous DNA testing. In 2007, Johnson officially confessed to Mallin's rape.
"I am responsible," he said. "I say I am truly sorry."
"It's been on my heart to express my sincerest sorrow and regret and ask to be forgiven," he said at the time.
"She turned left down that dirt road ... and stopped the car," Johnson later recalled from prison.
"I told her I wanted sex, she told me she was a virgin and didn't want sex before she was married.
"After the intercourse I made her drive the car back.
"I saw Mr Cole briefly the night that he was put in jail when he was sentenced. He was briefly in a cell across from mine. [I was] listening to the conversation of him crying about being wrongfully convicted. I looked over and was looking at him, I didn't say nothing to him.
"The truth needs to be told as to what happened to him."
Cole became the first man in the United States to be exonerated posthumously on the basis of DNA evidence, a decade after his death.
"It does matter, a person deserves redress. As my mother said, by no means is Tim the first, he's just the first to be recognised," Mr Sessions told Truth and Justice.
"Thousands have died in prison wrongfully convicted."
In the courtroom, Mallin finally faced her real attacker.
"What you did to me, you had no right to do," she told him angrily, according to CNN.
"You've got no right to do that to any woman. I am the one with the power now, buddy."
She defended herself against the wrongful identification, declaring, "I was positive at the time that it was him."
"I was shocked when I found out it wasn't him. I joined Tim's family in working to exonerate him because it was the right thing to do. Timothy didn't deserve what he got.
"I was scared for my life. I tried my hardest to remember what he looked like."
Mr Session said the family "don't blame Michele. She's very gracious."