On March 24, 1985, a young Texas Tech student named Michele Malin was parking her car in a church parking lot when she was approached by a man. He said he was looking for jumper cables for his car. When Malin told him she had none the assailant reached into her car and unlocked the door. Malin was forced at knifepoint to lie in her vehicle while he drove her to a secluded location where he assaulted and raped her.
Malin described her attacker as an African American male, wearing a yellow shirt and sandals. Malin stated he smoked cigarettes during the assault. Beyond that, her details were scarce. Based on this, police officials attributed her attack to the work of a serial rapist known as the “Tech Rapist” and they distributed sketches based on those victim’s descriptions.
Two weeks after the assault, Timothy Brian Cole, another Texas Tech student, visited a pizza restaurant near Lubbock and encountered a detective with whom he spoke. This detective went to Cole’s home and took a picture of him. This polaroid was of Cole head-on and was shown to Malin with a group of standard mug-shots of other suspect’s profiles. Malin made her identification of Cole from this photographic evidence. A line-up was conducted with Malin and she again identified Cole. The victims of the “Tech Rapist” did not and Cole was charged solely with the rape of Malin.
Forensics in Malin’s case were questionable. There were similarities but no irrefutable empirical evidence. Pubic hairs were similar in texture but an unreliable match. Both Malin and Cole were Type A blood, so the secretions found in the rape kit were also inconclusive. The analyst even asserted the hairs were prejudicial and lacked sufficient value. The prosecution continued and so did attacks on female students near the Texas Tech campus. Despite fingerprint evidence in one such case that did not match Cole, the judge did not allow Coles defense to share these facts with the jury. Cole was convicted on September 17, 1986.
Even with opportunities for parole, Cole refused to confess to raping Michele Malin and maintained his innocence. He died in prison thirteen years later from a massive heart attack brought on by his asthma. He was thirty-nine years old. Unbeknownst to Cole, the real assailant in Michele Malin’s attack had reached out ten years later. Jerry Wayne Johnson, arrested three days after Cole for another assault, wrote to Cole, police officials, and the prosecutor’s in Lubbock to no avail. It wasn’t until his letters reached the Innocence Project that Johnson’s confession was heard.
Jeff Blackburn, of the Innocence Project, petitioned for and received posthumous DNA testing of the evidence from Malin’s rape-kit. The evidence conclusively exonerated Cole and confirmed Johnson as the rapist. On April 7, 2009, Timothy Brian Cole became the first person to be posthumously exonerated by DNA evidence in Texas. His family was given his official pardon by Gov. Rick Perry on March 1, 2010. Following Coles exoneration, Texas passed the Timothy Cole Act which set compensation for exonerees to $80,000 per year incarcerated. The Timothy Cole Advisory Panel on Wrongful Convictions was established in 2009 to study the prevention of wrongful conviction in Texas.
In 2014, a bronze statue of Timothy Cole was erected outside of Texas Tech Law School. The statue of Cole carries two books. One of the bindings reads, “Lest We Forget” and the bottom of the sculpture reads, “And Justice For All”. Regents at Texas Tech voted to honor Cole with a posthumous degree in law and social justice in March of 2015.