“Tim Cole did not rape you.”
That was the message that greeted Michelle Murray when she checked her voicemail one Wednesday in 2008.
It had been left by a police detective in Lubbock, Texas. Murray had been raped at knifepoint more than two decades earlier and her eye-witness testimony had helped nab the wrong man.
The details of Murray and Cole’s case are presented in a fascinating piece by Paul Kix in this week’s print edition of The New Yorker.
Murray was raped when she was a sophomore at Texas Tech University in 1985. She reported the rape immediately, and the police commissioned a composite sketch based on her description of the assailant: a young, skinny black man with short hair.
Her description was similar to those of other women who had recently been raped in the area in a similar fashion.
The police then attempted a sting operation in the area where Murray had been approached by her assailant. They found Cole, a 24-year-old Texas Tech student and Army vet, who had stopped his car briefly to chat with a white woman before driving off. He wasn’t doing anything illegal. But he fit the description of the assailant, and he became the primary suspect.
Investigators took a mugshot of Cole and showed it and five other photos to Murray, who said of Cole, “I think that’s him.”
“Are you positive?” she was asked.
“Yes. I’m positive that’s him.”
The police found some of the items Murray had described her assailant wearing — a yellow shirt, a gold ring — as well as a pocket knife in his apartment. Eventually, Cole was arrested and hauled into the police station to take part in a police line-up, where Murray identified him in person.
Cole went on trial for aggravated sexual assault, turning down a plea bargain. Even though four witnesses testified that he had been with them the entire evening of the alleged rape, he was found guilty and sentenced to 25 years in prison. The conviction was based almost entirely on Murray’s eye-witness testimony.
As Kix points out, eyewitness identification is notoriously unreliable, a fact backed up by dozens of academic articles. Since 1989, 280 people have been exonerated or sexual assault charges in the U.S. Among them, close to 75 percent were convicted at least in part on mistaken eyewitness identification.
While in prison, Cole died of respiratory failure at the age of 39.
In 2007, another prisoner serving a life sentence confessed to raping Murray, which a DNA test confirmed.
After finding out that Cole was not her assailant, Murray worked with Cole’s family to try to get him exonerated posthumously. He eventually became the first posthumous pardon in Texas history.
In 2001, Texas passed a law giving inmates the chance to request DNA evidence pertaining to their convictions. This has helped lead to more than 40 exonerations in Texas, the most in the nation.
Cole’s case has prompted several reforms, including passage of the Tim Cole Act aimed at preventing wrongful convictions. It requires police departments to reform their identification practices, including encouraging the use of sequential line ups (instead of displaying all the suspects at once). It establishes an advisory panel on the prevention of wrongful convictions and increases the amount of money given to exonerees.
And last May, Gov. Greg Abbott signed the Tim Cole Exoneration Review Commission into law. The commission will review previous exonerations and advise the Texas Legislature on criminal justice reforms.
During his incarceration, Cole tried to stay upbeat. When his sister wanted to leave Texas Tech’s Law School because of his arrest, he urged her to continue, writing, “I still believe in the justice system, even though it doesn’t believe in me.”
Thanks to Cole’s legacy, the people of Texas now have a criminal justice system they can believe in a little bit more.
Daniel Allott is deputy commentary editor for the Washington Examiner
