Texas: DNA exoneration comes too late

Mistaken eyewitness ID again

Ruby told Tim all about the letter. A man named Jerry Wayne Johnson was promising to confess to the rape that kept her eldest son behind bars for 13 years. There was a lot of work still to do, Ruby told her son. They'd have to prove Johnson's claims, somehow, and no one knew if that was possible. But there was hope enough for the 71-year-old woman.

Eight years had passed since prison dust and Tim's asthma killed him. For the first time since his death, his family really believed there was a chance to clear his name. "When you have a child, there are commitments you make to them, promises," she said later. "And we try to keep every last one of them." Her small frame paused as she pushed up from the ground next to Tim's headstone. Ruby's voice barely carried past her lips. "It's going to be OK," she told her son.

Six years had passed since 2001, when a judge dismissed Johnson's attempted confession to the crime that imprisoned Tim. Only five had passed since legislators granted Texas prisoners access to post-conviction DNA testing. Johnson tried again, from his cell near Snyder, to alert Tim Cole to his confession. He figured Tim would be out of jail on parole now. Johnson's mother found an address for Ruby, and the prisoner wrote a letter addressed to Tim Cole on May 11, 2007.

"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," Johnson wrote. "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." Tim's brother Rodney thought the letter was a sick joke when he first saw the envelope in the mailbox. Then he began reading and shouting for his mother.

"My husband left this earth with the same prayer that I've had all these years," Ruby said. "That one day, maybe somebody would own up to it. Now that's what this said in this boy's letter."

But the confession posed its own problems. Johnson's word was not enough to overturn a jury verdict; that required hard evidence, like a DNA test. No one knew if testable material existed from a 23-year-old case.

There was another problem. If the claim was true, then Lubbock was about to enter untested legal waters. Lubbock County has performed half a dozen post-conviction DNA tests, District Attorney Matt Powell said. All were on living prisoners, and all confirmed the original verdict. Experts are aware of no posthumous DNA exoneration in the state of Texas. State law offers no clear instructions as to how to handle such a problem. Because there was no one to free, the county was under no obligation do anything regarding the case.

From the stands of a Little League baseball game last spring, Powell promised to find the truth behind the letter. If there was a way to prove Johnson was lying or honest, the office would find an answer, he said. "If one innocent person is put in the pen, that's a travesty of justice," Powell said....

Tim's family knew well by the summer of 2007 the speed of justice. They said, over and over, Johnson's letter was proof enough to them Tim had not committed the crime. But they knew they needed stronger proof to clear Tim's name for everyone else.

Lubbock's district attorney's office first pulled records to see if it was even possible that Johnson could have done the crime. George White, a detective on the original case and now administrator for the district attorney's office, helped with the investigation. The Innocence Project of Texas, a non-profit firm of students and attorneys that work on wrongful conviction claims, interviewed Johnson and checked his background to rule out any connection to Tim's family. Both groups warned the family and reporters that many inmates make unfounded claims. Both continued to follow the case.

DNA evidence has exonerated 33 inmates so far in Texas, more than any other state. The Dallas area has cleared 19 since 2001. Tim's family watched relieved and happy innocent men on the nightly news in Dallas, where most of the wrongful convictions have been overturned. Many of the cases hinged on the same problems alleged in Tim's case - faulty identification or forensics problems.

Months piled up without news. Updates from the district attorney's office trickled out. Johnson wrote that he'd stopped hearing from Innocence Project staff. To have hope revived and then delayed again renewed two decades of frustration. The family worried Tim's case had stalled again. "I know he's deceased," Cory said in February. "That's why it's just more and more important to us. Everybody wants to hear about someone who got out of prison and they're moving on with their lives. Well, we want to hear about someone who didn't deserve to go to prison."

The DNA test. Johnson met with the Avalanche-Journal a few weeks after his letter came to light. He discussed his memory of the rape and of Tim in a deliberate, matter-of-fact tone. Johnson was critical of the attorneys appointed to handle his own appeals and DNA requests. He has not explained why he committed the rapes. The girl, he said during an interview at the Price Daniel Unit last June, just happened to be the first to pull into that cold church parking lot in March 1985.

Johnson chuckled when asked what he was doing in the parking lot in the first place. He was working for a rental car company and on sick leave at the time of the attack. He lived and worked nowhere near campus. "Why?" he asked from behind the thick blue bars of the Price Daniel visiting room. "C'mon, man. I just told you."

But Tim's death and the family's pain troubled him. He wanted to know his discussion of the crime with the media would help the family. He passed along apologies to Tim's mother and to the victim....

Lubbock investigators found evidence from Tim's case gathering dust in the county archives last fall. The Department of Public Safety's crime lab confirmed the material could be tested. They took two samples, more than needed, from Johnson in April. In May, they quietly received the results of the DNA testing. Johnson raped the Tech student.

Cases so heavily based on eyewitness testimony became more rare since the 1970s and 1980s, he said. DNA evidence, though not always available, helped reduce but not eliminate chances of another wrongful conviction.

Powell, Lubbock's current district attorney, was proud his office had determined the truth behind the rapes and frustrated he could not charge Johnson with the crime. "He's not stupid," Powell said. "Everyone wants to paint him as a good guy, but he's far from it. "If I could prosecute him, I guarantee that would happen. If I had any legal recourse against him he'd already be indicted."

Texas Innocence Project attorney Jeff Blackburn requested on Friday a court of inquiry be held on Tim's case. The process would use a rarely tapped power allowing a Texas district judge to start an investigation into violation of state laws. "If we're going to live in a society where the court system operates in a fair way, then it's got to do it across the board," Blackburn said. "They have a right to have a court of record tell them that their son was innocent."

Tim's family learned the news confirming what they had long known on a Thursday morning in late June. They filled Ruby's southeast Fort Worth living room with friends and family members who could make the sudden trip to hear the results of the DNA test. There was quiet relief at first; the satisfaction of knowing that finally, everyone would admit what the family knew about Tim. But there was a bitterness to the news, too, and echoes of how the family struggled with Tim's death. With the truth out, memories of the trial and Lubbock media coverage of their son and brother, of the investigation that snared Tim, and of the way the case was presented in court bubbled back up.

More here




(And don't forget your ration of Wicked Thoughts for today)