Legal Racism: The System Kills Another Black Man

CNN reports on an important hearing in Austin, Texas, one that sought the

Creative Commons License photo credit: Biggunben

first posthumous exoneration of a wrongly convicted man in Texas history: a black Texas Tech student named Timothy Cole. Cole died in prison a decade ago after serving a long term for a rape, it has now been proven by DNA and other evidence, he did not commit. Numerous black Texans have been released in recent years because they were wrongfully convicted by the criminal injustice system.

His family successfuly sought to clear Timothy Cole’s name. Today they won that exoneration. Here is today’s report on the judge’s decision:

State District Judge Charlie Baird closed an extraordinary hearing today by finding that Timothy Cole, who died in prison in 1999, did not rape fellow Texas Tech student Michele Mallin in 1985. “I find to a 100 percent moral, factual and legal certainty that Timothy Cole did not sexually assault Michele Murray Mallin.” Baird, who took the case after a Lubbock case denied a joint request by Malin and Cole’s family to consider it, further stated that Timothy Cole’s reputation was wrongly injured, that his reputation must be restored and that his good name must be vindicated.”

CNN reports the very troubling story of likely institutional racism thus:

Cole was convicted and sentenced to 25 years in prison for the 1985 rape of 20-year-old Michele Mallin. He maintained his innocence, but it was not confirmed by DNA until years after his 1999 death, when another inmate confessed to the rape.

Mallin was a young student when raped and, to her great credit, once she found out the truth, has joined Cole’s family in this unprecedented exoneration effort, assisted by the Innocence Project of Texas, which has helped in several wrongful conviction cases. The actual rapist has confessed and is also expected to testify at the hearing. The Innocence Project has raised serious questions about the role of the criminal justice system is this wrongful conviction. CNN continues:

The next day, police investigators showed Mallin pictures of possible suspects. She chose a picture of Cole and said he was her attacker. She later identified him in a physical lineup, according to the Innocence Project of Texas…. But there was one detail: Mallin told police her attacker was a smoker. “He was smoking the entire time.” And Cole, who suffered from severe asthma, “was never a smoker,” Session [Cole’s Brother] said. “He took daily medications (for asthma) when he was younger.” “He was the sacrificial lamb. To them, my brother was the Tech rapist, there was no backtracking. It was the trial of the decade for Lubbock.”

The Austin American-Statesmen legal blog has a piece by Steven Kreytak that adds this point about witness misidentification and numerous exonerations in the Texas criminal justice system:

Cole’s case is not isolated. About 80 percent of the Texas cases where people were exonerated by DNA testing since 1994 involved some kind of witness misidentification, according to the Innocence Project of Texas. Gary Wells, an Iowa State University professor who is a leading authority on witness identification has written that their accuracy is frequently imperfect and often depends on the methods employed to obtain the identifications.

The Innocence Project became involved and DNA tests showed that Cole was not the rapist. But this should have been obvious to the police and prosecutor in Lubbock. Cole could not have been the smoking rapist, yet for some reason this very white criminal justice system could not see that reality. Do white officials often “see black” in many such cases? What role did the white racist framing of young “black man as rapist” play in this event? The conviction of course ruined Cole’s life, for he was a student at Texas Tech. CNN continues thus:

But his dreams of getting married and having children never materialized. He was arrested and charged with Mallin’s rape, declining a plea bargain offer that would have put him on probation. A jury convicted him and imposed a 25-year sentence. That night, “he hugged my mother, and he said, ‘Mother, why these people lie on me? Why they do this to me?’

He died in prison of heart complications linked to his bad asthma. Because of this wrongful conviction, he was “murdered” in effect by the criminal justice system, one of many black men in US history.

Indeed, the number of men of color who have been exonerated in recent years shows just how unjust our criminal justice system really is. In recent years there have been many exonerations of people in prison for felonies. The Innocence Project at Cardozo Law School reports that their 232 exoneration cases reveal that well over half (138) have been African Americans (my thanks to Kim Cook for these data links). For just death row exonerations (wrongful capital convictions) from DNA evidence and other evidence, 130 death row inmates have been exonerated: 50 are white, 66 African American, 12 Latino, 2 other (Native American and Asian). All but one are male. In these cases Some 16 were exonerated by means of DNA evidence. Well over half (62 percent) were men of color.

So much for the nonsense about a “post-racial America.”


  1. JacklynD

    The details of this case are beyond tragic. I don’t understand how anyone could be sentenced to death with so much contradictory evidence, particularly since he didn’t smoke.

    All death sentences should be abolished, particularly if there is no DNA evidence. It is well documented that eye witnesses are often wrong.

    I was once a victim in a robbery at a grocery store. Myself and the clerk gave the police very different descriptions. The only thing we agreed on was that he had a gun and was tall, thin and black. The rest , including clothing description and hair style were different.

  2. G.E

    It’s a little too late Miss Mallin. You falsely accused a young man who was innocent. Seeing your from Baytown i can understand any black man in a lineup would of been guilty to you. i feel sorry for you, and your not in power miss as you told Johnson, you are pathetic, these words are coming from a 58 yr old white man

  3. gary from Illinois

    It is just digusting that this man was screwed over like he was. But that’s Texas. I wonder how many innocent black men were excuted under George bush’s adminstration in texas. Texas is really a racist sick state.

  4. Jake

    The majority of violent crimes are committed by blacks. This isn’t racism, its just a statistical fact. I don’t see why websites like this say that the conviction of a black person is unjust even if they have murdered their fellow citizens.

  5. Larry Reina

    This is just tragic and terrible.
    A young man with a future to spend
    years in jail for something he didn’t
    do. Something is really wrong about
    Texas justice.
    I wonder how many agonizing nights
    Timothy Cole spent wondering why
    How barbaric way to treat a innocent
    I only wish those responsible have their day of reckoning, for no evil deed goes
    without punishment before God’s eyes.

  6. Matari

    Jake, that isn’t true. The following is an excerpt from a Tim Wise article, “How the Right Rationalizes Racial Inequity, Part Two (Criminal Justice)”
    In 2001, for example, for all violent crimes, including simple assault, blacks committed twenty-eight percent of the total, according to the Justice Department (9). Yet, African Americans comprised thirty-four percent of all persons arrested for those crimes that year, meaning that blacks were arrested at a rate that was twenty percent above their rate of offending (10). Indeed, if blacks and whites had been arrested for these violent crimes at a rate that was equal to their rate of committing them, tens of thousands fewer blacks, and tens of thousands more whites would have been arrested for violent crime in 2001. Comparing racial arrest data with racial offending data for 2001 reveals that for every 100 violent crimes committed by blacks, roughly thirty were arrested, while for every 100 violent crimes committed by whites, about 26 were arrested, meaning that white offenders were about fifteen percent more likely to get away with their offenses than black offenders (11).

    In addition to black arrest rates being higher than black offending rates would justify, there is also racial disparity in terms of who gets imprisoned and who doesn’t. In New York State, according to one recent study, if blacks arrested were treated the same as whites for the same crimes, with the same priors, in the same jurisdictions, one-third of all blacks in the state sent to jail or prison annually would have been spared such a sentence. This amounts to nearly 4500 blacks sent to jail or prison each year in New York who would not have been incarcerated had they merely been white (12). In Pennsylvania, even when prior records and severity of a given crime are the same, white male offenders between the ages of 18-29 are thirty-eight percent less likely to be imprisoned than similar black males (13).

    Not only are blacks more likely to be arrested and imprisoned than their crime rates would justify, but whites are much less likely to wind up in prison despite their share of serious crime. More than half of all violent crimes are committed by non-Hispanic whites, but only a quarter of today’s prison population is white, according to the Justice Department. Blacks, on the other hand, commit a little more than one-fourth of all violent crime (according to victim recollections), but comprise nearly half the jail and prison population (14).

  7. Joe Author

    And much serious crime by whites, like drug (cocaine) dealing by whites never gets caught or prosecuted, because the police are focused on crime by people of color.

  8. Matari

    Jake, here’s an excerpt from another Tim Wise article titled: “The Color of Deception: Race, Crime and Sloppy Social Science”
    Secondly, to claim that blacks are more dangerous than whites because of official crime rates, is to ignore that when it comes to everyday threats to personal well-being, whites far and away lead the pack in all kinds of destructive behaviors: corporate pollution, consumer fraud, violations of health and safety standards on the job, and launching wars on the basis of deceptive evidence, to name a few. Each year, far more people die because of corporate malfeasance, occupational health violations and pollution than all the street crime combined, let alone street crime committed by African Americans (2).
    What’s most interesting is that these white “white” collar – above the law – crooks seldom, if ever, are arrested and convicted. And if they do go to prison, it’s often a country club setting with lots of privileges. Mr. Madoff, the 50 billion dollar ripoff scam-artist and his Wall St. banksters and fraudsters cronies that are largely responsible for the current financial Armageddon won’t do jail time. Instead they’ll get even more taxpayer’s money that will stay in their pockets! The message? The bigger the crime and the higher (whiter) you are, the more it pays. Just ask Bush & Cheney, war criminals and profiteers who get to walk…
    So Jake, while you and your buddies are harping on the “violent” black people you should be allies with, the criminal white elitist class are taking us all to the cleaners, because they made you and your pals “believe in” being members of their “white” skinned social (race) club. Open your eyes and see …

  9. philstudent

    This article reminds me of other articles that have stated that the majority of racism in America today is the more subtle systematic racism as opposed to the more conscious bigoted racism of previous eras. There are several studies that suggest many people have “unconscious” racist leanings. (Harvard did one online–I can’t remember the link.)
    If something like this is what’s affecting our judicial system, then I think it’s misplaced to try to blame some*one* for this wrong conviction. (The smoking issue suggests this case could be otherwise, but insofar as this case represents wrongful convictions of black men, I think the point can still stand.)
    I’ll admit that I’m not sure how to reverse unspoken, unconscious racist leanings, but one article I read suggested that we should stop identifying people as racist and instead identify racist actions. People should be blamed/praised for their conscious actions–but their unconscious ones?
    In short, I think this article is pointing to an issue which is more complex than there being malicious bigots in Texas.

  10. Terry

    Could the American prison system be a subtle form of ethnocide for African Americans by targeting black males to slowly neutralize the race? I went to a lecture about Afro Mexicans, and Mexico did commit ethnocide to make a state where it is majority Mexican and white. It still has a 2% indigenous and Afro Mexican minority that is barely holding on. From the view on a college campus, black males are rare, but black females are prevalent.

  11. to jake:

    “In 2000, 22 percent of those in federal and state prisons were convicted on drug charges”. – human rights watch

    from this we can deduce that the most convicted-for offenses are drug related. but


    According to the Federal Household Survey, there were “an estimated 9.9 million whites (72 percent of all users), 2.0 million blacks (15 percent), and 1.4 million Hispanics (10 percent) who were current illicit drug users in 1998.”

    Despite those figures, Blacks constitute 36.8 percent of those arrested for drug violations and over 42 percent of those in federal prisons for drug violations. African-Americans comprise almost 58 percent of those in state prisons for drug felonies.

    how anyone can say that the disproportionate number of african americans in prison is just, is way beyond my comprehension.

  12. Matari

    “Could the American prison system be a subtle form of ethnocide for African Americans ..”
    YES Terry! It’s a hidden in plain view “400 year old war” against black people (and other people of color) but it isn’t at all “subtle” to some of us. We can see that constructing more jails are preferred more than building better lives through rehab and education. Follow the money. If one is alert, the killing of two or more birds with one stone can be seen. Caging black and other “non-white” people under the guise of the War on Drugs – (and the 3 strikes you get LIFE law) which are both a refined form of Jim Crow and slavery. It is a very PROFITABLE business (literally SLAVE labor) for private corporations. The ever growing prison industrial complex provides economic vitality and renewal for depressed towns and communities. There’s also the added benefit of increasing the community’s political head count in census statistics, thereby increasing the amount of tax revenues – windfall – from the fed back to the state, city, county or municipality. The lives of those incarcerated, their children, significant others, siblings, parents and communities they lived in before their conviction are socially, economically and spiritually adversely affected and broken..a ripple unbroken 400 year cycle of racism – white supremacy.

  13. Seattle in Texas

    On the death penalty in Texas–House Bill 682 (a bill to abolish the death penalty in Texas) will be reviewed in the near future. In the past Bills to abolish the death penalty in Texas have not even made it to this point. Does this mean we should be optimistic that it will pass? The non-partisan Texan progressives are hopeful. It’s still a significant uphill battle as anybody can imagine. Non-partisan progressives from other states have been assisting in supporting the Texans against the death penalty in this endeavor. One of the ways anybody can help support these most incredible Texans is to write letters to the Texas House of Representatives, House Committee for Criminal Jurisprudence at:

    Each member has their own address at the capital and it is recommended that a separate letter is sent to each. Anybody, from anywhere, can do this. They review many, many bills. Sending letters before they review Bill 682 lets them know it is important to the voters and general public, among other things. Voices are important.

    If you are in Texas, you can head to the state capitol on Tuesday, March 10, 2009 from 10:00-3:00 for a lobby day.

    Other ways you can get involved regardless of where you may be may be found at:

    Anybody interested in an important documentary on the death penalty, please see:

    Somebody who should be nominated for the Noble Peace Prize? Without question, Reverend Carol J. Pickett.

    Best of luck on this endeavor progressive Texans! Many throughout the nation stand behind you.

    And what next after the death penalty is abolish??? Prison reform!!! And much more…everywhere…eihyeihyeih….

  14. A “SINGLE VOICE PROJECT” is the official name of the petition sponsored by: The National Public Service Council To Abolish Private Prisons (NPSCTAPP)


    The National Public Service Council To Abolish Private Prisons (NPSCTAPP) is a grass roots organization driven by a single objective. We want the United States government to reclaim sole authority for state and federal prisons on US soil.
    We want the United States Congress to immediately rescind all state and federal contracts that permit private prisons “for profit” to exist in the United States, or any place subject to its jurisdiction. We understand that the problems that currently plague our government, its criminal justice system and in particular, the state & federal bureau of prisons (and most correctional and rehabilitation facilities) are massive. However, it is our solemn belief that the solutions for prison reform will remain unattainable and virtually impossible as long as private prisons for profit are permitted to operate in America.

    Prior to the past month, and the fiasco of Fannie Mae, Freddie Mac, AIG, Lehman Brothers, and now the “Big Three” American Automobile manufacturers, the NPSCTAPP has always felt compelled to highlight the “moral Bottom line” when it comes to corrections and privatization. Although, we remain confounded by the reality that our government has allowed our justice system to be operated by private interests. The NPSCTAPP philosophy has always been “justice” should not be for sale at any price. It is our belief that the inherent and most fundamental responsibility of the criminal justice system should not be shirked, or “jobbed-out.” This is not the same as privatizing the post office or some trash pick up service in the community. There has to be a loss of meaning and purpose when an inmate looks at a guard’s uniform and instead of seeing an emblem that reads State Department of Corrections or Federal Bureau of Prisons, he sees one that says: “Atlas Prison Corporation.”

    Let’s assume that the real danger of privatization is not some innate inhumanity on the part of its practitioners but rather the added financial incentives that reward inhumanity. The same logic that motivates companies to operate prisons more efficiently also encourages them to cut corners at the expense of workers, prisoners and the public. Every penny they do not spend on food, medical care or training for guards is a dime they can pocket. What happens when the pennies pocketed are not enough for the shareholders? Who will bailout the private prison industry when they hold the government and the American people hostage with the threat of financial failure…“bankruptcy?” What was unimaginable a month ago merits serious consideration today. State and Federal prison programs originate from government design, and therefore, need to be maintained by the government. It’s time to restore the principles and the vacated promise of our judicial system.

    John F. Kennedy said, “The time to repair the roof is while the sun is shinning”. Well the sun may not be shinning but, it’s not a bad time to begin repair on a dangerous roof that is certain to fall…. because, “Incarcerating people for profit is, in a word WRONG”

    There is an urgent need for the good people of this country to emerge from the shadows of cynicism, indifference, apathy and those other dark places that we migrate to when we are overwhelmed by frustration and the loss of hope.
    It is our hope that you will support the NPSCTAPP with a show of solidarity by signing our petition. We intend to assemble a collection of one million signatures, which will subsequently be attached to a proposition for consideration. This proposition will be presented to both, the Speaker Of The House Of Representatives (Nancy Pelosi) and the United States Congress.

    Please Help Us. We Need Your Support. Help Us Spread The Word About This Monumental And Courageous Challenge To Create Positive Change. Place The Link To The Petition On Your Website! Pass It On!

    The SINGLE VOICE PETITION and the effort to abolish private “for profit” prisons is the sole intent of NPSCTAPP. Our project does not contain any additional agendas. We have no solutions or suggestions regarding prison reform. However, we are unyielding in our belief that the answers to the many problems which currently plague this nation’s criminal justice system and its penal system in particular, cannot and will not be found within or assisted by the private “for profit” prison business. The private “for profit” prison business has a stranglehold on our criminal justice system. Its vice-like grip continues to choke the possibility of justice, fairness, and responsibility from both state and federal systems.
    These new slave plantations are not the answer!

    For more information please visit: or email:
    To sign the petition please visit:


    William Thomas
    National Community Outreach Facilitator
    The National Public Service Council To Abolish Private Prisons
    P.O. Box 156423
    San Francisco, California 94115

  15. Danielle

    This story has been absolutely heartbreaking.

    This past weekend I met a mother who is trying to save her son from being executed on Texas’ death row currently:

    Terry: “Could the American prison system be a subtle form of ethnocide for African Americans ..”

    Absolutely. I think others might say this is not so much “subtle” as it is just an updated form of previous practices…

    A quick review if you’d like to read further:

    Loïc Wacquant’s Deadly Symbiosis (2001):

    Angela Davis’ Are Prisons Obsolete (2003):

    João Costa Vargas’ Never Meant to Survive: Genocide and Utopias in Black Diaspora Communities (2008)


  1. Those generous Democrats... - Page 12 - Political Forum
  2. Those generous Democrats... - Page 13 - Political Forum
  3. Sharpton vs. NYT Political Cartoon - Page 21 - Political Forum

Leave a Reply