Too late for Austin inmate cleared by DNA

Tim Cole paid the ultimate price for another man's crime when he died behind bars eight years ago, more than two decades into a prison sentence for a rape he did not commit . Now, Cole, who was 38 when he died of an asthma-related heart attack, and his family can find some peace. "We've got what we came for," said Reginald Kennard, Cole's brother. "We got a chance to let the whole story come out of how my brother was wronged." An Austin judge on Friday reversed his conviction, paving the way for an official pardon eight years after he died during a 25-year prison sentence for another man's crime. On Friday, the real rapist, Jerry Johnson, confessed in an Austin courtroom and apologized for the 1985 attack on a Texas Tech student. He also took responsibility for allowing Cole, a teenager at the time he was convicted, to take the blame. "I am responsible," said Jerry Johnson. "I say I am truly sorry." Johnson took the stand about 4 p.m. and read the words victim Michelle Mallin had written to describe her night of terror so many years ago. Malin, who had mistakenly picked Cole out of a lineup, sat in the packed courtroom and watched as her real attacker addressed the crowd. "I am not a rape victim, I am a rape survivor," Johnson read out loud from the stand. "I survived what he put me through..." After his testimony, Mallin confronted him in the courtroom with the judge's permission. It was the first time she was able to confront her true attacker. She was enraged, emotional, and rained down two decades of fury on the man who had shoved into her car, held a knife to her throat, and raped her in a parkinglot when she was just a student. "What you did to me, you had no right to do," she told him angrily. "You've got no right to do that to any woman. I am the one with the power now, buddy." Then the judge let Cole's mother, Ruby Session, confront him as well. "He'll never have the chance to have children," he said. "I want you to know he was a fine young fine." The judge reversed Cole's conviction just after 5 p.m. The decision clears the way for the governor to pardon him and officially clear his name. Johnson will not pay for the rape because he waited until the statute of limitations ran out before he confessed. He tried several times over the years to admit his guilt and exonerate Cole, but his pleas fell on deaf ears. It was not until his letter arrived at Cole's mother's house in Fort Worth in 2007, that authorities began to listen. But, unbeknownst to Johnson, Cole had died eight years before of an asthma-related illness. It was day of clarification and vindication, both for the innocent man Cole and for Mallin. It had been Mallin's initial identification that the prosecutor used as the cornerstone for his case against Cole, but advocates said shoddy police work also sent him unjustly to prison. "It is important to me...he needs to be exonerated," she said. "I knew that when the DNA proved him innocent." Mallin joined a packed court room of Timothy Cole's family members to hear the role this photo lineup played in Cole's wrongful conviction. Johnson was not pictured in the lineup, so experts testified Mallin did what most people would: She picked the person who looked most like the attacker. From suggestive tactics to missing fingerprints, the Cole family had to sit and hear the various ways Tim Cole was wronged. It has been nearly a quarter century since Cole's conviction, and the judge's decision brought long-awaited closure for both Mallin and Cole's family. "He never gave up, and I know he is smiling now," Session said. Over the last two days, the Innocence Project of Texas highlighted many mistakes made in the Lubbock case. The Innocence Project ofTexas is hoping to use this as an example of what is wrong with the criminal justice system to prevent future wrongful convictions.