You remember Timothy Cole, the wrongly-convicted man who died in prison ten years ago and has since been exonerated in a court of inquiry. The Lege passed a bill named for him to increase compensation to those who have been freed after a wrongful conviction, which Governor Perry signed. Legislation to put a constitutional amendment that would allow for a posthumous pardon of Cole failed to pass, however, and Governor Perry has said he does not have the authority to issue such a pardon, based on an old AG opinion. Sen. Rodney Ellis, who was one of the movers behind the Cole legislation, has now asked for a new opinion to see if that constitutional amendment was required, or if the Governor does in fact have the authority. As Grits noted, the Texas Legislative Council thinks he has the power. We’ll see if the AG ultimately agrees, since it’s clear Perry will not take any action without an AG opinion. The DMN comes down on the side of acting now.
While the state’s courts have not answered this question definitively, the legislative council points to precedents in other states, as well as U.S. Supreme Court rulings, and suggests that Perry may not need any additional constitutional powers to pardon Cole.
Only a legal challenge to such a pardon could threaten to derail the governor’s decision. And as Ellis, who has been a vocal advocate for Cole, has posited: Who on earth would challenge a pardon for a dead, innocent man?
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The decision to issue a pardon should be an easy one. Clearing Cole’s name would not threaten the tough-on-crime image Perry cultivates. But the governor’s office seems to be seeking an escape hatch, hanging their rejection on a 1965 AG opinion instead of proactively seeking a solution.
The judge who exonerated Cole called this “the saddest case I’ve seen.”
No, the state can’t right this egregious error. But by issuing a pardon, Perry could give an innocent man’s family some measure of peace.
For what it’s worth, I can actually imagine someone challenging this. Never underestimate the will of a crank. Be that as it may, I agree with the DMN. It’s worth it in this case to go forward now rather than wait on the AG. If it results in a lawsuit, getting the question answered once and for all will be worth it.
UPDATE: State Rep. Ruth Jones McClendon released the following statement today in support of pardoning Tim Cole:
The loss of a child is widely considered to be the greatest sorrow a mother can bear. Many mothers never recover from the emotional scar such a loss leaves permanently etched on the heart. In the case of Timothy Cole, the facts show that this loss could have been avoided. Timothy Cole was a Texas Tech University student at the time of his arrest, and was honorably discharged as a veteran after serving his country in the Army. Wrongfully convicted in 1986, he died after serving thirteen years in prison because of faulty evidence, and because the true assailant knew and withheld the truth which would have allowed Timothy to have been released from his prison cell and walk free. Timothy Cole died of asthma while incarcerated in 1999, never knowing he would be exonerated later and declared an innocent man.
For the rest of her life, Ruby Sessions will spend every Mother’s Day and every other important holiday and family event without her son. No one can ever bring her innocent son back from the grave, but it is possible to restore his good name and grant his family some peace of mind. To honor this request and issue a posthumous pardon, Governor Perry would be granting his mother the greatest act of kindness and respect that could ever be offered, by pardoning her son, Timothy.
It is a fundamental principle of living that when one has the choice of being right, or being kind, the better choice — and the one that produces no regrets — is to be kind. When, as in the case of Timothy Cole, it is possible to do both, then it only makes sense to do both. Based on the reasoning of a recent legal interpretation by the Legislative Council, an advisory department serving state officials and the Legislature, there is support for a posthumous pardon of Timothy Cole, based on a 1927 U. S. Supreme Court decision later affirmed in 1974. Texas attorneys know that an opinion by the highest court in the land carries more weight in precedence than a 44-year old opinion by the Texas Attorney General, as cited by the Governor, which does not have the authority of a court decision. Texas attorneys also know that an opinion by the Texas Attorney General is advisory only, does not have the authority of a court decision, and is ordinarily cited when there is no other established precedent. Surely, granting the pardon is the morally right course of action, and no legal challenge could be expected as a consequence of this act of kindness toward a veteran of our armed forces and his surviving family.
Clearly, a gubernatorial pardon is something to be considered carefully, and would be bestowed only in the most limited of circumstances. Such is the heart-rending case of Timothy Cole. Consequently, with the stroke of a pen, Governor Perry could ease the sorrow felt by Ruby Sessions, and issue a full and unconditional pardon for Timothy Cole now.
It’s all up to the Governor.