In 1986, a Texas court convicted Timothy Brian Cole, a black man, of raping Michele Mallin, then a 24-year-old white coed at Texas Tech University in Lubbock. Cole, 26, was sentenced to 25 years in prison. An Army veteran who had returned to college to finish a business degree, Cole was also a student at Texas Tech. He and Mallin did not know each other.
According to records obtained in 2008 by the local paper, Mallin had identified Cole as her attacker during a line-up. "I walked into the room and I immediately saw the person who raped me," she swore in an affidavit, according to a three-part series in the Lubbock Avalanche-Journal. "I am positive of my identification and there is no doubt in my mind." Cole maintained his innocence throughout, and while imprisoned, refused parole in exchange for admitting guilt.
In 1999, Cole, a lifelong asthmatic, died in prison. A decade later, and more than 15 years after the true assailant initially confessed to Mallin’s rape in a series of letters to court officials and prosecutors, Cole became the first man in Texas history to receive a posthumous exoneration based on DNA evidence. Because of lobbying by Cole’s family, the state also passed the Timothy Cole Act to provide wrongfully convicted people with $80,000 for each year of their incarceration plus reentry services. It also set up an investigative panel, the Timothy Cole Advisory Panel on Wrongful Convictions. For its part, Texas Tech established a scholarship in his name for future law students. And now the city of Lubbock, Tex., is going even further this fall: In a state that is first in the nation for the number and pace of its death penalty executions, the city will unveil a life-sized bronze statue of Tim Cole and rededicate a park in his memory, establishing perhaps the first public memorial in the United States to a wrongfully convicted man.
"It was most important that the city of Lubbock do something," says Cole’s youngest brother, Cory Session, by phone. "In 2008 when the DNA test first came back, a reporter asked my mom, How much was she was going to sue for? What do you want?"
"And she said, I want them never to forget," Session says.
Lubbock in a 2005 national survey ranked as the second most conservative city in the nation–after Provo, Utah. It’s named after Texas Ranger and Civil War veteran, Thomas S. Lubbock, who fought to expand slave-holding into the West. Today, Lubbock is known for producing one-third of the country’s cotton, Texas Tech, birthing Buddy Holly and its Republican politics. But Lubbock, like the rest of the country, is slowly changing.
Non-Hispanic whites now comprise half the city, down from nearly 80 percent in 1970. Much of that growth is attributed to Latinos, now one third of the county, with black Americans comprising seven percent. Even smaller was the ratio of black students at Texas Tech in the mid-80s. At the time of Cole’s prosecution, there were 500 black students on a public university campus of 23,000. With an intense manhunt underway for a serial rapist identified by young white female victims as a black male, it made for tense moments in the city and on campus.
While speaking to the local paper in 2008, Reggie Kennard another of Cole’s younger brothers, a Tech sophomore at the time of the manhunt, recalled an old joke: "If you walked campus at night, you were going to get stopped," he said, "[and] one of the black students would say, ‘Hey, you look like the Tech rapist.’"
His brother became the joke’s punchline.
Cole died 13 years into a 25-year sentence but his family–his parents and six younger siblings–served all of it. For Session, the statue claims a particular victory for his mother, Ruby Cole Session.
"It is physical. It will be in the annals of history. You can see it. It is one of those things where people will stop and ask, What is that? Let’s stop and see. You can enlighten people," Session says of the statue, which will stand at the corner of a main thoroughfare at 19th Street and University Avenue.
And that teaching intention, art historian Erika Doss says, sets Cole’s statue apart from other public memorials. Doss is the author of "Memorial Mania," a survey of modern memorials in the United States, and an American Studies professor at the University of Notre Dame.
"This is huge," she says of the statue. Its body faces in the direction of the parking lot where Mallin was initially assaulted; Cole’s face looks towards the Texas Tech Law School. "This kid was wrongfully convicted and then died in prison as a result. Lots of communities would bury that."
The statue was Lubbock city councilman Todd Klein’s idea. He describes the memorial as a "teachable moment."
"Anytime government makes a mistake, particularly when that results in taking someone’s liberty or life," Klein says, "we must as the very least acknowledge the miscarriage of justice and do everything possible to try to make the family whole and, ensure it doesn’t happen again."
Session tells a story about his eldest brother, known for writing long letters to his younger siblings while in prison. His sister, Karen Kennard, then the only African-American woman at Texas Tech’s law school, had threatened to leave because of her brother’s mishandled prosecution and conviction. Cole wrote to her, Session says, "Do not leave Texas Tech because I still believe in the justice system even though it does not believe in me." Those words, beginning with ‘I still believe,’ will be emblazoned on a plaque next to the statue. For new visitors to Lubbock, and future generations, additional text will explain the circumstances leading up to the statue.
The pardon was a start in repairing the harm, Klein says, particularly in clearing Cole’s name. But the statue, especially his accompanying quote, goes further in speaking to his life and the extraordinary man that Tim Cole was.
"Cole was not bitter," Session says. "I visited him once in prison and he was smiling and I couldn’t figure out where this happiness was coming from. He said, ‘There’re a lot of people in prison that’re innocent. Some of ’em don’t have family. And some of these guys will be homeless when they leave. So, he said, I’m thankful for a roof and every piece of bread they give me.’"
"This from a man who didn’t do anything–but he’s thankful to be in prison and have shelter," Session says, sounding as though he still can’t believe it."
Although it’s common for communities to recognize wronged individuals and create memorials that "bear witness" to the past, Doss can’t think of a memorial in the country quite like Cole’s. The closest, she says, may be Duluth, Minnesota’s 2003 memorial to three African-American men lynched in 1920 after being falsely accused of raping a young white woman.
"These are ‘shaming’ memorials," she says. "And shame should be attached to what happened to [Cole]. But shame can also be a productive social force when people are forced to think about righting wrongs and moving forward to the future."
Michele Mallin, who was attacked in her car all those years ago, publicly recanted. According to the Innocence Project, she speaks and writes about the Tim Cole case to raise awareness about misidentifications and police misconduct in wrongful convictions. And Cole’s younger sister, Karen Kennard, whom he urged in a letter from prison not to leave Texas Tech’s law school, is now Austin’s city attorney.