Fort Worth

An innocent man died in prison. How his legacy helps the wrongly convicted in Texas

DNA exonerated Tim Cole posthumously

Cory Session remembers his brother Tim Cole, convicted and sent to prison for a rape he didn't commit. Cole died in prison in 1999 before he could be exonerated, the first posthumous DNA exoneration in Texas history.
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Cory Session remembers his brother Tim Cole, convicted and sent to prison for a rape he didn't commit. Cole died in prison in 1999 before he could be exonerated, the first posthumous DNA exoneration in Texas history.

Cory Session will take one flower — a bird of paradise — with him Saturday when he heads to the cemetery.

There, at Mount Olivet, he will pay tribute at the graveside of his parents and place the flower, one of his mother's favorites, on the grave of his older brother, Tim Cole.

Saturday marks a decade since officials formally learned what Session and his family have always known: DNA evidence proved that Cole, who died in prison from an asthma attack in 1999, had been unjustly convicted of rape more than a decade earlier.

"We knew (he) was innocent," Session said. "We had to wait for the world to know it."

In past years, Session said, his mother — Ruby Cole Session, who died in 2013 — would cook a special meal every May 19, and then the family would head to the cemetery.

This year, he and family members will go before his 18-year-old daughter heads out to her senior prom.

There, not far from Cole's tombstone, they'll see the historical marker that tells the story of how the Fort Worth man went to prison for a crime he didn't commit and, years later after the true rapist confessed to the crime, ended up receiving the state's first — and only — posthumous pardon.

Session's mother called May 19 "the day we made history."

Since then, largely because of the efforts of Cole's family, Texas has been recognized as a leader in helping those who were wrongfully convicted.

On Saturday, when he places the bird of paradise on Cole's grave, Session will remember his mother's comment when his brother was buried: "She said, 'My first bird has gone on to paradise.' "

Convicted and sentenced

Cole's family never gave up in their quest to prove that the former Texas Tech student and Army veteran was wrongly accused and wrongly convicted.

A fellow Tech student, Michelle Mallin, identified him as her rapist from a photograph in 1985, and the case went to trial in Lubbock.

During the trial, Cole's attorneys said they believed Jerry Wayne Johnson — the man who confessed to the crime more than a decade later — was the actual rapist.

Cole repeatedly proclaimed his innocence, even turning down a plea bargain that would have put him on probation, saying he would wait to "see how the justice system will work out," media reports showed.

In less than a week, he was convicted and sentenced to 25 years in prison.

A few days after that, Session said, he remembers his mother pacing up and down the hallway in their home about 2 a.m., while the rest of the family slept.

Almost in a trance, she was screaming, swinging her arms, and calling out: "God, you know he didn't do this. Why did they convict?"

"I saw a pain in my mother that I'd never seen in my life," Session recalled. "And I knew, this can't be it."

That often gave him the strength to keep fighting to prove his brother's innocence.

Even after being in prison for several years, Cole rejected an offer of parole because it would have required him to admit guilt.

"His greatest wish was to be exonerated and completely vindicated," his mother once told television news.

'Let go and let God'

Session could hardly believe the phone call he received from his brother in December 1999.

As his mother screamed and cried in the background, Session learned that Cole, at 39, had died in prison on Dec. 2 from complications of his asthma.

He served 13 years of his sentence.

Heartbroken, the family buried Cole but remained committed to proving his innocence and clearing his name.

Then one day, Ruby Cole Session received a letter from Johnson, which was similar to other letters the inmate had been writing to Lubbock leaders for years.

It was intended for Cole, since Johnson didn't know he had died.

In it, Johnson confessed to the rape that landed Cole behind bars.

It was the answer to a prayer Ruby Cole Session offered up every night, asking for the person who committed the crime to confess during her lifetime.

"When you let go and let God, that's when things happen," Session recalled his mother saying.

Soon, as family members continued pressing for a declaration of Cole's innocence, the family received another key piece of news: The rape kit collected from the 1985 crime had been found — and Lubbock officials had agreed to run the results.

"We had a party that day," Session said. "We were just celebrating. ... We were home free."

On May 19, 2008, Lubbock officials received the DNA evidence that showed Cole was innocent of the rape.

'Sacrificial lamb'

A Travis County judge soon cleared Cole of the charges, saying he "suffered the greatest miscarriage of justice imaginable in our criminal justice system."

The Texas Legislature also took action, in 2009 passing the Timothy Cole Act, which gives exonerees $80,000 for each year of wrongful imprisonment plus a monthly annuity payment. Since then, 59 exonerees have received lump sum payments totaling $68 million through the end of 2017, according to data from the Texas Comptroller's Office.

State lawmakers also created the Timothy Cole Advisory Panel on Wrongful Convictions to study wrongful convictions and recommend how to prevent such convictions, and they passed more legislation, including a package of bills ensuring the timely testing of DNA evidence and overhauling eyewitness practices by law enforcers.

In 2010, then-Gov. Rick Perry formally signed a pardon for Cole.

"I have been looking forward to the day I could tell Tim Cole's mother that her son's name has been cleared for a crime he did not commit," Perry said in a statement at the time. "The state of Texas cannot give back the time he spent in prison away from his loved ones, but today I was finally able to tell her we have cleared his name, and hope this brings a measure of peace to his family."

Two years later, a state historical marker honoring Cole as the first and, so far, only person posthumously exonerated in Texas was erected in Mount Olivet Cemetery.

Ruby Session died in 2013 and didn't get to see the statue of Cole as a college student that was erected and dedicated near Texas Tech University, although she did see drawings and renderings.

And she didn't get to see the Texas Tech law school in 2015 issue an honorary degree in Cole's name.

"For a long time, my mom would tell people when they asked how she felt that they got the wrong one ... (that) they got the right one when they got Tim," Session said.

Not because he committed the crime, which he didn't.

But because the family would fight for him so hard that their efforts ended up helping other people across the state who also were wrongly convicted of crimes.

"He wanted to live the American dream," Session said of his brother. "But he lived the American nightmare."

"He was the sacrificial lamb."

Anna Tinsley: 817-390-7610, @annatinsley
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