This week, Timothy Cole became the first person in Texas to be exonerated and fully pardoned posthumously as a result of DNA testing. The heartbreaking case begs the question: How many others are there, and how can they be prevented?
DNA testing more than two decades after Cole’s wrongful conviction finally cleared him in 2008 and pointed to convicted rapist Jerry Wayne Johnson, who had already confessed to the crime in letters to court officials, as well as other rapes dating back several years.
A year ago, in an unprecedented legal move, Cole’s family and lawyers appeared in an Austin courtroom in pursuit of a posthumous ruling to clear his name. According to advocates for the wrongfully convicted, the strategy was unique in Texas and rare in the U.S. The Innocence Project served as co-counsel with the Innocence Project of Texas in that hearing. A judge declared Cole innocent, and he was exonerated.
On March 1, 2009 Texas Governor Rick Perry fully pardoned Cole. The development gives comfort to his family, but it is also a painful reminder of an innocent man’s life lost.
Cole’s mother said the pardon was a long time coming.
“I am so happy,” Ruby Session, Cole’s mother, said from her home in Burleson. “I just know that Tim is up there smiling.”
The Texas Board of Pardons and Paroles voted unanimously to recommend the posthumous pardon for innocence.
Under state law, Perry had to wait for the board’s recommendation before he could sign the pardon.”There was overwhelming evidence. It was very clear that he was wrongly imprisoned,” Perry said after a campaign event in San Antonio.
He called Session to tell her the news.
“It was really awesome,” the governor said, adding that he and Session have formed a warm relationship over the past year or so.
Cole’s family is eligible for state recompense, which amounts to just over $1 million based on his 13 years of wrongful incarceration
Texas leads the country with 40 wrongful convictions that have been overturned by DNA testing—only half of the exonerated in Texas received compensation for time spent behind bars.
Eyewitness misidentification, which contributed to Cole’s wrongful conviction, is the single greatest cause of wrongful convictions nationwide, playing a role in more than 75% of convictions overturned through DNA testing. Faulty forensic science also played a role in Cole’s wrongful conviction. Eyewitness misidentification was a factor in 33 of Texas’s cases and unvalidated or improper forensic science contributed to 17 of the wrongful convictions.
A growing number of Texas legislators, led by State Senator Rodney Ellis (who also serves as chairman of the Innocence Project Board of Directors) are determined to improve the state’s criminal justice system to prevent more wrongful convictions.
Ellis said more work remains to be done to guard against similar situations, such as pushing to require every law enforcement agency in Texas to have written eyewitness identification procedures based on best practices.
“While this is the first posthumous pardon in Texas,” Ellis said in a statement, “we have a long way to go if we are going to make sure it is the last.”
Cole’s family said they will continue working to make sure other people don’t suffer the same injustice he did.
During the 2009 Legislature, Cole’s prom night picture was posted at legislative committee hearings as relatives traveled repeatedly to Austin on behalf of bills designed to correct flaws in the state’s criminal justice system. Even amid her euphoria over the pardon announcement, Ruby Session said there is still much to do.
“We will be doing this work as long as I’m able,” said Session, who is scheduled to undergo surgery this week for an arterial aneurysm. “We’re on the forefront of a new day in the criminal justice system.”
Coverage of Cole’s pardon:
Fort Worth Star Telegram