For Timothy Brian Cole, it would have been a great present for his 48th birthday.

For 14 years Cole denied being the rapist who terrorized the Texas Tech University campus in the mid-1980s. When he was offered probation before his trial, when he was offered parole in prison, Cole refused to be freed if it meant confessing to a crime he didn’t commit.

Now, almost nine years after his death while serving a 25-year sentence as the infamous Tech rapist, Cole’s name is finally being cleared in what could be the first posthumous exoneration of a Texas prison inmate through DNA testing.

The Lubbock County district attorney’s office recently conducted post-conviction DNA tests on biological material left at the crime scene showing that another man, one already serving time in prison on other sexual assault charges, actually committed the rape.

"He would be 48 years old today," said Cory Session, one of Cole’s brothers. "What a birthday present we can give him. He won’t be here in an earthly sense, but we know he is looking down on us and smiling about the whole thing."

The Innocence Project of Texas has filed a request for a court of inquiry to not only officially clear Cole’s name, but also to rule that the other inmate, Jerry Johnson, committed the crime. They also want the prosecutor’s office to investigate how this miscarriage of justice occurred.

Besides Cole falling prey to poorly done eyewitness identification by the local police, Johnson started confessing to the crime 13 years ago, only to have his efforts dismissed by the local courts without ever being appointed an attorney or having a hearing in court.

"This case shows how the system has broken down and how we need to fix it by creating a process that allows innocent people to get their cases into court," said Jeff Blackburn, chief counsel for the Innocence Project of Texas. "Looking at paperwork is not enough."

Lubbock County Criminal District Attorney Matt Powell did not return phone calls seeking comment.

Picked from a lineup

No one in Cole’s family ever believed that he was guilty of rape.

A 26-year-old Army veteran, he decided to join younger brother Reginald Kennard at Texas Tech in January 1985 after leaving the service.

He had been on campus only a few months when the police went to the apartment he and his brother shared.

Cole voluntarily went with police to be questioned about a series of rapes because, his family said, he hadn’t done anything wrong.

While other women could not identify Cole as their attacker, one woman did and he was charged with her rape.

During his 1986 trial, Cole was convicted primarily on the victim’s identification. Police collected other physical and biological evidence, but tests performed then were primitive and inconclusive.

During his years in prison, Cole continued to profess his innocence. In December 1999, after serving about 13 years, he died after his heart was weakened by an asthmatic condition. His family thinks that inadequate medical care contributed to his death.

He was 39.

Confessions ignored

In 1995, Johnson admitted to committing the rape in Cole’s case.

He offered details about the crime that only the attacker would know, Blackburn said. But he waited until the statute of limitations had expired, meaning he couldn’t be convicted for the crime.

Johnson was already serving two consecutive life sentences for other sexual assaults in Lubbock in 1985.

But his letters changed nothing.

"Cole is telling folks he is innocent, Johnson is telling people he is guilty, and no one is listening to him. For God’s sake, as early as 1995, he is writing letters," Blackburn said.

A year ago, Johnson finally sent a letter to Cole at his mother’s house in southeast Fort Worth and to the Innocence Project. The Lubbock prosecutor tested the available DNA evidence, and the results they received in May confirmed that Johnson was the attacker, Blackburn said.

But Blackburn said their inquiry also revealed that other parts of the investigation were flawed, including the crucial photo lineup where Cole’s picture — a Polaroid — was drastically different than the others that were used, making it stand out.

"This thing is an instructional manual on how you do a suggestive lineup to pick out the wrong person," he said.

Court of inquiry

Ruby Session, 71, said such a violent crime was not in her child’s nature.

"Never in this world. I never doubted it," said Session, a retired schoolteacher whose husband died while her son was in prison. "And after [Tim] was convicted my husband and I, our prayers were that whoever did this" would finally come forward.

Cory Session, 39, said they knew when they got Johnson’s letter a year ago that they were finally close to seeing the end to this sad family chapter.

Cole’s family looks forward to a court of inquiry. They hope, if nothing else, that it will reveal problems within the system and prevent another family from going through the same ordeal.

A district judge will decide whether Blackburn’s request will be granted.

"There is nothing we could have done to change it. It is a wound that began to heal last year" after getting the letter from Johnson, said Cory Session. "The stitching is there; it got stitched and it began to heal and eventually it will be just a little scar that we will remember.

"There is nothing we can do to bring him back, and there’s nothing we can do to change what happened, except it will hopefully keep something else from happening."