The Scourge of Judicial and Prosecutorial Immunity: The Prosecutorial and Police Destruction of the Life of Timothy Cole

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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.

Let me put this case another way; Mike Brown, Cole’s attorney, did a better job of investigating the case than did the Lubbock Police and Jim Bob Darnell. In fact, the official investigators failed in their efforts, and ultimately depended upon lies, bullying, and intimidation. The last thing they wanted was the truth getting in the way of a conviction, and that was what they got.

I am not interested in hearing how police simply "made a mistake." If Mike Brown could figure out the case, why were the police and prosecution so reluctant to do the same? There was another clue that perhaps they were mistaken, Cole’s response to a plea offer.

Darnell and the police had promised Cole that if he would plead to a lesser charge, he only would receive probation. Cole refused, saying he would not plead to something he did not do. When in prison, he was offered the chance to get out on parole if only he would admit to having committed the crime for which he was imprisoned. He refused.

In other words, Timothy Cole was a man of principle. Jim Bob Darnell, the man called "Your Honor" every day of his working life, is not a man of principle. He decided in 1986 that Cole was guilty, and that he would not let facts or the truth get in the way of securing a conviction.

As I have said before, the facts of the case did not point to Timothy Cole. They pointed, instead, to Terry Wayne Johnson, but neither the police nor Darnell were interested in what might have happened. They had their story, and they were going to stick to it.

But the sorry tale still was not over. In 1995, after the statute of limitations had run out, Johnson confessed to Mallin’s rape. The people running the "justice" show in Texas were not interested. Cole’s family did not give up trying to clear Timothy of this rape, and they tried and tried, even after Timothy was dead. Finally, and reluctantly, in 2008 the authorities finally got around to testing the DNA, and found a match with Johnson. As one might suspect, there was none with Timothy Cole, but it did not matter, for Cole had been dead for nearly a decade.

So, Jim Bob Darnell, now the Honorable Jim Bob Darnell essentially murdered Timothy Cole. He had the opportunity in 1986 to get at the truth, but took the easy way out, bullying his way to a conviction. If he truly were "honorable," he immediately would resign his judgeship and turn in his law license and offer to clean toilets in the Cole household for the rest of his life.

Instead, Darnell will continue in his career as a judge, passing sentence perhaps on other people wrongfully convicted, agreeing with prosecutors on plea bargains in cases where the truth never will be permitted to be known. He will be able to continue his comfortable and "respectable" life as though he never had killed Timothy Cole.

That is why I believe that we must get rid of judicial and prosecutorial immunity. Not only does immunity protect the Mike Nifongs of this world — people who openly lie in court and are protected in ways that one cannot imagine for others — but it also permits those people who have taken the lives of others to continue as though nothing had happened.

In the real world, people are supposed to take responsibility for what they do. If someone sells me a faulty product, I can take legal action against that person. If someone in his or her dealings with me in the world of private enterprise lies or shades the truth, I have some recourse.

However, if a prosecutor lies or a judge permits a travesty of justice to occur in his courtroom, it is business as usual. There might be discipline for that person, but generally speaking, the prosecutor gives an excuse, the judge hides behind immunity, and everyone else whose life was shattered is expected to "pick up the pieces and move on."

If I or Lew Rockwell or most people reading this article were responsible for the death of another human being, there would be a price to pay. Our futures possibly would hold prison or perhaps execution. At the very least, we would be expected to compensate the wronged party with our own resources.

Jim Bob Darnell does not have to worry about that. He had immunity, he has immunity, and he can do what he damn well pleases. Not only will he never have to face justice for killing another human being, but he won’t even be inconvenienced. No, he did not have to make the trip to Austin when the courts finally exonerated Cole, and did not show his face in the courtroom; he was and is immune.

No system of justice can be perfect in a world of imperfect people. It is true that most people brought into the criminal justice system are guilty as charged, or have been involved in criminal activity. Furthermore, I also realize that plenty of "jailhouse lawyers" would use their time to file "frivolous" lawsuits against prosecutors, police and judges if given the chance.

Yet, I believe there could be a mechanism developed to deal with that problem. Certainly, the courts do not see a problem with, say, Microsoft facing a bevy of lawsuits because Bill Gates believes that the company should have lots of cash on hand. Judges certainly don’t worry about the plaintiffs’ bar destroying the ability of companies to function just because there is money to be made.

But my point is that a system in which the proverbial foxes guard the henhouse is no system of justice at all. It is an open invitation for lies and abuse, and the blood of Timothy Cole cries out every day because of it.

February 9, 2009

William L. Anderson, Ph.D. [send him mail], teaches economics at Frostburg State University in Maryland, and is an adjunct scholar of the Ludwig von Mises Institute. He also is a consultant with American Economic Services.

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