The Militant Libertarian

I'm pissed off and I'm a libertarian. What else you wanna know?

Friday, February 13, 2009

The Scourge of Judicial and Prosecutorial Immunity

The Prosecutorial and Police Destruction of the Life of Timothy Cole
by William L. Anderson

Although my recent column urging that immunity for police, prosecutors, and judges be eliminated received a lot of positive response, nonetheless some lawyers and others wrote to complain that if this actually were done, then those same officers of the court would face endless litigation from unscrupulous criminals. I understand that point well and even am sympathetic to it, but in the end believe that if the rest of us are subject to endless lawsuits from unscrupulous people, then everyone should be put in the same situation, if there is to be equal justice for all.

The problem is that many of the unscrupulous people are the officers of the court. Furthermore, there really are few remedies available for people to take when it turns out that the prosecutors, police, and judges have been reckless with the truth and gained a wrongful conviction. Instead, we are told that it is something with which we have to live.

With those points in mind, I would like to present the case of Timothy Cole, wrongfully convicted in 1986 for a rape he never committed. Even after another person confessed to the rape, and even after DNA testing had confirmed that Cole did not rape Texas Tech sophomore Michelle Mallin in 1985, it did no good. Timothy Cole died in prison in 1999 from complications from asthma.

Cole went to prison because Mallin identified him in court as the rapist. Forget that so-called eyewitness identification is notoriously inaccurate, and forget that Cole’s defense already had alerted police and prosecutor Jim Bob Darnell had been given ample evidence of Cole’s innocence. None of that mattered to any of the government employees seeking a conviction, and a compliant jury rendered its verdict after about six hours of discussion.

Today, Darnell is the "Honorable Jim Bob Darnell," a state judge in Texas. Yet, his actions in the Cole case were anything but honorable, for an honorable man seeks for truth, not scalps, and there were lots of holes in Darnell’s case in 1986. First, Mallin noted that the man smoked heavily throughout the ordeal. Cole, who suffered from asthma, did not smoke and, indeed, would have had a severe reaction from smoking.

Second, Cole’s fingerprints were not found anywhere on or in Mallin’s car, despite the fact that Mallin testified that the man was not wearing gloves. Third, Cole had an alibi, as friends testified in court that he was with them when the alleged rape occurred. Darnell would have none of that. Even though it was clear that there was a serial rapist on the loose, and that Mallin’s rapist had engaged in similar patterns in other attacks, all of that information was suppressed, thanks to Darnell’s insistence and the judge’s compliance:

By then police had backed away from Tim as a suspect in multiple rapes. No physical evidence connected Tim to the crimes, and victims had not recognized him in the lineups.

But Darnell blocked near any mention of that in front of jurors. Police on the stand who more than a year earlier had hunted for a serial rapist made little comment on any connection to other rapes.

Again and again, Darnell hammered on how the witness had picked Tim out of the lineup…. And when Reggie and friends testified to Tim's focus on school, to his presence at a party at his duplex the night of the attack, Darnell shredded the alibi apart by casting doubt on the memories and motives of the witnesses.

Tim's defense attorney, Mike Brown, pushed back. Didn't a victim confuse Tim for Terry Lee Clark? he asked the detectives. Didn't police fail to find any physical evidence that this victim recognized? Didn't the rapes in vacant fields by knifepoint continue after Tim's arrest, like the ones committed by a violent offender, Jerry Wayne Johnson?

Darnell: "Are we going to try every rape that occurs in Lubbock County over a six month or one year period of time involving black males?"

There was still more reason to doubt, Brown said. Didn't this victim fail to describe some of Tim's more obvious features? Tim removed his shirt for the jury, showing his mottled back and arm, birthmarks that covered his upper body.

Darnell: "Is that person going to be embracing that individual and remembering everything about that person's back when they are being sexually assaulted and their soul is being taken from them?" he asked days later in closing as the victim burst into tears.

In fact, one of the reasons that Mallin was so sure of her identification was that police investigators insisted that Cole was the man and, in effect, confirmed for her the identification she had made. Yet, today, we know that the defense was right; it was Terry Wayne Johnson who committed that and other rapes around Lubbock. Terry Wayne Johnson, a heavy smoker. Terry Wayne Johnson, whose DNA would be a match when checked many years later.

Read the rest: The Prosecutorial and Police Destruction of the Life of Timothy Cole

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