Family of Dead Inmate Seeks Exoneration     06/30/08 By Christal Bennett SNYDER, TEXAS  --  Timothy Cole died in prison of an asthma attack, at the age of 38. He proclaimed his innocence until his final days. But he left this world a convicted rapist. "Timothy Cole is absolutely a victim," says Jerry Johnson. "And not only is Timothy Cole a victim, but his family's a victim too." Cole's loved ones never believed he kidnapped a fellow Texas Tech student from a church parking lot and raped her. They began to get confirmation a year ago, when they received a letter from Jerry Johnson, a man serving life in prison for two rape convictions. Johnson didn't know Cole, but was briefly housed near him in the Lubbock County Jail. "I just recall him in the cell talking to some other inmates and basically crying about that they had convicted him and he didn't do the crime," says Johnson. "It was hard not to say nothing." Johnson waited to come forward until 1995, when he knew the statute of limitations had passed and he couldn't be prosecuted for the crime. He says he wouldn't speak up sooner and risk adding time to his already lengthy sentence in TDCJ. "I'm sorry," says Johnson. "I think they know that. I'm just disturbed because I wish I'd stayed persistent with him." He says he sent multiple letters to County leaders for years, explaining Cole's wrongful conviction. It wasn't until the letter last spring that the District Attorney's office looked into his claims. "If a guy was innocent of the crime, even if we didn't have anything to do with it, we needed to find that out," says District Attorney Matt Powell. "I had a couple of investigators go talk with him. They took a DNA sample from him and tested it with some stuff we had in the property room from some 20-odd years ago." The results: Johnson, not Cole committed the attack. Judge Jim Darnell served as Lubbock County District Attorney in the early 1980's. "When Matt told me, I sort of felt like someone had kicked me in the stomach," says Darnell. He prosecuted this case. "I deal with a lot of cases, and I've dealt with cases where people have a murdered family member, that's extremely difficult," say Darnell. "I would say this is probably not much different from that." Judge Darnell remembers few details of Cole's trial 22 years ago. He was convicted primarily based on the victim's identification. Johnson was not in the lineup she viewed. "She was never given the opportunity to identify the correct perpetrator," says . "It's important for the citizens of the state of Texas to know exactly what went wrong here." The Innocence Project of Texas is working for Cole's family to formally clear his name. "We're stuck in an unusual legal situation because the normal avenues that would've been available to Timothy Cole are no longer available to him because he is not alive," says . D.A. Powell says this is unprecedented. "To my knowledge, we've never had a posthumous exoneration before and I've not seen one across the state of Texas, to my knowledge," says Powell. "So we're trying to figure that process out right now." A filing by the Innocence Project attorneys requests a formal court inquiry to proclaim, on the record, Cole's innocence and Johnson's guilt. "Through this intense process we can find out what went wrong, we can make sure it doesn't happen again in the future, and at the same time, we can get Timothy Cole's name back," says. Johnson says "there should be some more questions because others could be following Mr. Cole." Johnson puts much blame on the Lubbock legal system, even though he could've stopped this in the first place. If the court inquiry is granted, every step that failed Cole will be analyzed in open court. D.A. Powell says he never received any of Johnson's earlier letters. It's unclear who received them and what, if any action, was taken.

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