By BETSY BLANEY
Associated Press Writer
LUBBOCK, Texas — A Texas man's family will return to a courtroom this week with the hope that they'll be able to clear his rape conviction from more than two decades ago, giving the state its first posthumous DNA exoneration.
Tim Cole was sentenced to 25 years in prison on charges that he raped a Texas Tech student in 1985, but DNA from the crime scene showed last year that a convicted rapist, not Cole, had committed the crime.
The vindication is bittersweet: Cole died in prison of an asthma-induced heart attack in 1999. He was 38 years old.
Still, his family will ask an Austin judge on Thursday to overturn the conviction, paving the way for a pardon by the governor and, eventually, expunging Cole's record.
"That's vindication," said Cory Session, Cole's brother. "We need exoneration. We are extremely hopeful that this process will actually get him cleared."
The case against Cole relied primarily on identification by Michele Mallin, the victim in the attack. The Associated Press does not identify rape victims, but Mallin has come forth publicly to help clear Cole's name.
Attorney Jeff Blackburn of the Innocence Project of Texas along with others working on Cole's behalf allege the photo lineup used in 1985 was flawed. Mallin picked Cole out of a photo array of standard jail mug shots except for Cole's photo, which was a Polaroid.
Blackburn said Mallin planned to attend Thursday's hearing, and so will Jerry Wayne Johnson, the man that the DNA test indicated was Mallin's actual attacker.
Johnson, who is serving time in a Snyder prison for two other rapes during the 1980s, has been trying for more than a decade to convince authorities that he raped Mallin. In 2007, he eventually sent a letter to Cole addressed to his mother's home in Fort Worth, admitting to the rape and offering to help prove Cole's innocence.
"If this letter reaches you, please contact me by writing so that we can arrange to take the steps to get the process started," wrote Johnson. "Whatever it takes, I will do it."
Cole's family received the letter and contacted both a reporter and the Innocence Project.
"We're anxious to hear what (Johnson) has to say," Session said. "It'll be a very emotional court hearing, and it will take us all back."
Lubbock County prosecutors have acknowledged the DNA test shows Cole was not the rapist. No one is expected to oppose the effort to overturn Cole's conviction, Blackburn said.
Blackburn has petitioned to establish a Court of Inquiry, an obscure and rarely used legal procedure that allows a judge to look into a case where a mistake is alleged, since the state has no simple legal channel to formally exonerate someone who has died.
The hearing Thursday in the 299th District Court in Austin is the first step in the process.
For now, Session said, the family is just concerned with having Cole's name cleared. However, he did not rule out pursuing civil damages for his brother's wrongful conviction.
"There's not one remedy that will bring Tim back," Session said. "That is a pain I still do not know how my mother deals with."
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