TEXAS INJUSTICE: THE TRAGEDY OF TIMOTHY COLE

Within its borders arguably resides the most corrupt legal system in the United States, if not the world: at one time, to increase the prospect of winning convictions, “training” manuals were circulated in some prosecutors’ offices explaining how to exclude racial minorities from juries; one prosecutor who sent an innocent man to prison later joked about this injustice by boasting, “Anybody can convict a guilty man. It takes talent to convict an innocent one”; an African-American activist was sentenced to thirty years in prison for allegedly passing one marijuana “joint” to an undercover police officer; by contrast, a white, high-school football hero only received probation for killing a “punk rocker” by first striking him with his car, then backing over him; one single county has had more wrongful convictions than entire states; its legal “system” executed a man even though the United States Supreme Court had agreed to review his case; this “system” may also have executed two innocent men, Carlos DeLuna and Ruben Cantu; George W. Bush, while governor of this state, routinely denied thirty-day reprieves to death row inmates requesting DNA testing, even though such testing could potentially have exonerated them; during his murderous reign, this “pro-life” governor executed over one hundred and fifty people, then arrogantly bragged that no innocent person had been executed “under his watch.” This claim was an easy one to make since all evidence was routinely destroyed after an execution, making posthumous DNA testing impossible.

Still, even in the State of Texas, tyrants occasionally forget to cover their tracks, and such was the case when posthumous DNA testing recently exonerated Timothy Cole. In 1985, Cole was convicted of rape and sentenced to twenty-five years in prison. At the age of thirty-nine, he died there—another victim of Texas injustice.

The tragedy of Timothy Cole’s case is a litany of everything that is wrong with Texas and America’s criminal justice “systems.”

Anybody familiar with the “day care molestation” hysterias of the 1980s, and the injustices it sired, are easily reminded that, more often than not, wrongful convictions occur whenever police and/or prosecutors are on a crusade, or, perhaps more accurately, a vendetta. In such cases, instead of following the scientific method—which dictates that objective analysis of the evidence should lead to a conclusion—investigators, far too often, simply assume that a crime has been committed and/or who the perpetrators are. This, in turn, often compels them to ignore, withhold or conceal evidence that contradicts their predetermined conclusions, and, in some cases, even causes them to fabricate or plant evidence to support these conclusions.

According to articles from CNN and The Associated Press [AP], this practice of ignoring contradictory evidence was present in Timothy Cole’s case. The victim had informed police that her attacker had smoked throughout much of her ordeal, something a person who suffered from severe asthma, as Cole did, would never have been able to do.

A second problem in the Cole case is the flawed methodology that was used (and in many places continues to be used) when dealing with eyewitness identifications. THE INNOCENCE PROJECT reports that many, if not most, wrongful convictions result from faulty eyewitness identifications—a problem that Iowa State University professor Gary Wells has spent years examining.

In 2001, I attended a seminar that included Wells as one of the guest speakers. He began by showing the audience a video reenactment of a crime. During the course of this video, audience members were able to get at least three good looks at the perpetrator.

After the video ended, Wells projected six photographs onto the screen, and asked the audience to identify the perpetrator. He also cautioned the audience that the perpetrator’s photo might not actually be in this line-up. Despite this warning, roughly eighty-nine percent of the audience identified one photograph as the man they saw in the video.

Wells then projected the photograph of the man who was actually in the video next to the one the majority of the audience had chosen. While there were some similarities between the two, this side-by-side comparison clearly established that the audience was looking at two different men.

Wells then explained that whenever the actual perpetrator is absent from a photographic line-up, and even when eyewitnesses are advised that this might be the case, people have a tendency to select the photograph that most closely resembles the perpetrator, simply because they convince themselves that the police would not be showing them the line-up unless they included a photograph of the actual perpetrator.

Wells further stated that erroneous eyewitness identifications are often validated by police officers, either through their body language or actual comments. In Timothy Cole’s case, for example, the victim stated that after she identified him as her attacker, the police reinforced her selection by describing Cole as “a violent criminal and a thug.”

A third issue in the Cole case is the penalty one pays for refusing to accept a plea-bargain, which outside of the legal arena would probably be labeled extortion.

Plea-bargaining occurs whenever prosecutors offer criminal defendants reduced charges and/or prearranged punishments in exchange for pleading guilty. Critics of this practice argue that it often treats the guilty too leniently, while supporters contend that the legal system would collapse if every criminal defendant demanded to be placed on trial.

The primary problem with plea-bargaining, however, is that innocent people, to avoid the prospect of spending years in prison, might feel compelled to admit to crimes they did not commit.

Attorneys, who have no illusions about the system, often call going to trial “rolling the dice” because the bias of the presiding judge, the evidence this judge admits or excludes, the race or gender of the victim and/or defendant, the predispositions of the jury, and the competency of the attorneys, or the lack thereof, can all serve to mask the truth.

Calvin Burdine learned this the hard way. After being convicted of capital murder and sentenced to death, he appealed on the grounds that his defense attorney had occasionally dozed off during portions of the trial.

Commonsense would dictate that Burdine received “ineffective assistance of counsel.” After all, it does not require a stretch of the imagination to realize that any juror watching this slumbering lawyer would presume Burdine was guilty, since even his own attorney showed so little interest in defending him.

But this trial occurred in the execution-crazed state of Texas, and Texas justice decreed that Burdine’s conviction should stand, because he could not prove that his attorney had slept through any “relevant” testimony.

This was the system that Timothy Cole placed his faith it. Turning down a plea-bargain offer to plead guilty in exchange for probation, he chose to exercise his constitutional rights and go to trial. Unfortunately such a choice often makes vindictiveness the order of the day. Instead of probation, he was sentenced to twenty-five years in prison.

But, just as there is an “innocence penalty” that can get you into prison, there is an “innocence penalty” that can prevent you from getting out. Timothy Cole remained in prison until his death because he refused to admit to a crime he did not commit.

This happened because, in most states, people cannot receive parole unless they are willing to “take responsibility” for their crimes, which means that the wrongfully convicted have to lie in order to become “honest citizens.” This is how the legal system, not unlike Pontius Pilate, endeavors to wash its hands of innocent blood and maintain its pretense of “infallibility.”

Many supporters of America’s criminal justice system will undoubtedly argue that while no humanly created system is perfect, Timothy Cole’s case is an aberration since most wrongfully convicted people are not only eventually released, but even receive financial compensation for their years of wrongful imprisonment.

But tell that to Richard Alexander. In 1998, Alexander was sentenced to seventy years for a series of sexual assaults that occurred in South Bend, Indiana.

After spending almost five years in jail and prison, Alexander was released after DNA evidence pointed to another perpetrator. He subsequently sued members of the police department and the City of South Bend to obtain financial compensation for his years of wrongful incarceration.

During the course of his lawsuit, details of the “investigation” that led to his conviction emerged: one victim had described her attacker as a “well-muscled” African-American man, so Alexander was placed in a line-up wearing a skintight T-shirt, while others in the same line-up wore loose fitting coveralls; DNA evidence excluded him in one of the attacks he was charged with, and three other attacks occurred while he was in custody; in one of those cases, the victim identified Alexander as her assailant, even though he was in jail awaiting trial when this attack occurred.

In 1997, a mixed-race jury failed to reach a verdict. So, a year later, prosecutors, taking a page from the Texas “training” manual, convicted Alexander with the aid of an all-white jury.

Still, despite all the machinations that led to this wrongful conviction, a federal magistrate dismissed Alexander’s lawsuit, claiming that Alexander had failed to prove he had been prosecuted “in bad faith.”

It doesn’t take a legal genius to recognize the absurdity of this “bad faith” standard. Apparently before wrongfully accused people can receive financial compensation they have to possess the psychic ability to read the minds of the very people working to convict them.

In fact, in Alexander’s case, many of the people who profited were the same people responsible for his wrongful conviction. The judge who sentenced him later accepted a lucrative position at a prestigious law firm, the Chief Prosecutor was appointed to an appeals court, and the Deputy Prosecutor who actually tried the two cases became Chief Judge of the Superior Court.

Tragically, this pattern of rewarding purveyors of injustice has been repeated, and continues to be repeated, throughout America’s criminal justice system. Many, if not most, prosecutors go on to become elected officials or judges, or find high paying positions in the private sector. Meanwhile those they wrongfully put away languish in prison, losing days they can never gain back. And even when an injustice is exposed, oftentimes the reactions of these former prosecutors are disdainful indifference or, as in the case of the recently released Joshua Kezer, a refusal to even concede a mistake may have been made.

In fact, any argument that the legal system does not reward unethical behavior should be forever silenced by the recent appointment of Roland Burris to the United States Senate.

According to an AP article, while Burris was serving as Attorney General of the State of Illinois during the 1990s, his assistant Mary Hayes expressed concerns about the conviction of Rolando Cruz, who was on death row for the murder of a ten-year-old girl. Yet, instead of listening to these concerns, Burris refused to see Hayes, compelling her to resign in protest.

In explaining her position, Hayes demonstrated that she, not Burris, truly understood the ethical duty of prosecutors: “It wasn’t our job to simply rubber-stamp every jury’s verdict. It was our job to analyze whether the trials had been fair, and I could not in good conscience argue that this had been a fair trial or that any of the mistakes that had been made were harmless beyond a reasonable doubt.”

Yet it was Burris, and not Hayes, who was elevated to the United States Senate.

Still, perhaps it is fitting that Burris was appointed by a disgraced, and now impeached, Illinois governor. Also, in what may be called “a case of karma,” it appears that Burris’s interpretation of “ethics” might be returning to haunt him. Questions about the way he obtained this Senate seat have recently arisen, prompting demands for investigations and calls for his resignation.

According to a CNN article, the current district attorney of Dallas County, Texas, Craig Watkins, is working on ways to reduce the potential for wrongful convictions. One proposal—inspired by the case of James Woodward, who was wrongfully imprisoned for twenty-seven years because prosecutors withheld evidence they were legally obligated to give to Woodward’s attorneys—is to criminally prosecute prosecutors who “knowingly hide or suppress evidence that could help a defendant.”

Predictably Watkins’s proposal has caused an uproar in a criminal justice system that rewards injustices perpetuated by those who serve it. Their principal argument is that nobody will want to be a prosecutor “because they’d be afraid an honest mistake could cost them their careers or even jail.”

But is this not a better alternative than the current situation where dishonest misconduct launches lucrative careers and sends innocent people to jail? In actuality all this proposed law will do is ensure that prosecutors err on the side of caution.

It must be remembered that nobody requires the assistance of a defense attorney until they have been criminally charged, or risk being criminally charged. Prosecutors are the gatekeepers, and their decisions can cost individuals thousands of dollars in legal fees, and cause them to lose their freedom and, in capital cases, their very lives. Is it too much to ask that laws be created to ensure that these gates are opened cautiously and responsibly?

But how effective would such laws really be? Perhaps the answer can be found in the aforementioned case of Rolando Cruz. He and a co-defendant were found to be innocent after it was discovered that police and prosecutors had engaged in perjury and other deliberate misconduct to obtain their convictions. These revelations resulted in the police and prosecutors being criminally charged themselves.

What was the result?

Well, for a preview, remember that this trial occurred in the Chicagoland area, where dishonesty and corruption have been a way of life for decades. The city that wants to host the 2016 Summer Olympics is the city where seven police officers were acquitted after participating in what many described as a “police riot” during the 1968 Democratic Convention; where a federal grand jury refused to indict the police officers who extrajudicially executed Black Panther leaders Fred Hampton and Mark Clark during a “raid” in December of 1969; where county prosecutors have used every conceivable excuse to avoid prosecuting former police detective Jon Burge, even though officers under Burge’s command allegedly used torture to extract false confessions and send innocent men to prison; where, by contrast, these same prosecutors have used every conceivable excuse to harass Hampton’s son, Fred Hampton Jr.; and where judges often accepted bribes to return “not guilty” verdicts in cases involving organized crime figures.

So it was not surprising when a “good-old-boy” Chicagoland jury not only acquitted the police officers and prosecutors who handled the Cruz case, they even celebrated with them afterwards.

There is a saying, “If it ain’t broke, don’t fix it.” Well the legal system in America is broken, perhaps irreparably so. But far too many people profit from the system the way it is, so they aren’t about to fix it.

Unfortunately this means there will be more injustices—like the tragedy of Timothy Cole.

David R. Hoffman, Legal Editor of Pravda.Ru