The Associated Press State & Local Wire
BYLINE: By JEFF CARLTON, Associated Press Writer
Dallas, TX
Attorneys for a man who died in prison after he was wrongly convicted of rape have filed for a pardon with the Texas Board of Pardons and Paroles.
Tim Cole’s pardon application was mailed this week to Austin by The Innocence Project of Texas.
Cole, an Army veteran, died behind bars in 1999 at age 39. He was convicted of a 1985 rape of a Texas Tech student in Lubbock. A 2008 DNA test cleared Cole and implicated convicted rapist Jerry Wayne Johnson, who confessed in several letters to court officials that date back to 1995.
Cole’s family has been asking for a pardon from Gov. Rick Perry, who was sympathetic but maintained he legally could not issue a posthumous pardon. Last month, Attorney General Greg Abbott ruled that the Texas constitution limits pardon power only in cases of treason or impeachment.
The pardons board will make a recommendation to Perry, who then will decide whether to issue the pardon. Perry has indicated he will do so.
Last year, Perry signed into law the Tim Cole Act, which made Texas the most generous state in compensating the wrongly convicted. It went from paying the wrongly convicted $50,000 for each year of incarceration to $80,000 per year, plus a lifetime $80,000 annuity that varies based on life expectancy and other factors.
Cole’s family is eligible to collect the lump sum, but has not filed a claim.
Cole is the first Texas man to be posthumously cleared by DNA testing. Last year, state district Judge Charles Baird in Austin pronounced Cole innocent during an exoneration hearing. Baird said mistaken witness identification, questionable suspect lineups and a faulty police investigation led to Cole’s wrongful conviction. Lubbock Police Chief Dale Holton has acknowledged Cole’s innocence and supported the pardon application that was dated Monday.
As a Texas Tech University student, Cole became the target of the investigation of a serial rapist in Lubbock after asking out a female undercover officer who was posing as a student to attract the rapist.
He was sentenced to 25 years and maintained his innocence until his death from complications of asthma.
Johnson, who was serving life in prison for a series of other rapes, mailed a confession to Cole’s home address in 2007 not knowing Cole had been dead for eight years. Cole’s mother received the letter, and along with the Innocence Project of Texas, she pressed for DNA testing.
A 2008 test cleared Cole and linked Johnson to the rape. He wrote several confessions to Lubbock County prosecutors and judges beginning in 1995 when Cole was still alive. But his letters were ignored.
Johnson cannot be prosecuted for the rape that sent Cole to prison because the statute of limitations has expired.
The Cole case is now the subject of a federal lawsuit brought by his family. It specifically seeks discovery from a Texas Tech police officer and four Lubbock police officers, including the undercover officer.
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