Douglas County prosecutors are not going to oppose the judge’s ruling that Albert Wilson should get a new trial, they said Tuesday.
Wilson, 25, appeared in court in his own clothes for the first time since he was remanded into custody following the jury’s verdict in January 2019.
District Attorney Suzanne Valdez said she did not believe that appealing the judge’s decision would be in the best interest of Wilson, the accuser or the state.
Valdez and Wilson’s appellate attorneys, Josh Dubin, of Dubin Research & Consulting, an innocence ambassador for the Innocence Project, and Wichita-based appellate defender Michael Whalen, agreed they are hopeful that the case can be resolved without a second trial. However, if they don’t have a resolution by the next court date of May 13, the case likely will be set for a jury trial.
Valdez took office in January, and the prosecutors who handled Wilson’s trial and the appeal had left the office prior to that. She said she thought 45 days would be enough time for her office to review the case and attempt to “resolve this in good faith.”
Wilson was convicted of rape and sentenced to more than 12 years in prison, but the Kansas Court of Appeals remanded the case to Douglas County District Court for evidentiary hearings to determine whether Wilson received competent legal representation.
Judge Sally Pokorny ruled last week that the jury could have come to a different decision in Wilson’s case if the jurors had known about certain evidence that Wilson’s attorney did not use, and if the state’s expert forensic psychologist had not bolstered the accuser’s credibility. She ruled that a retrial was necessary in the case.
County jail records indicate that sheriff’s deputies brought Wilson back to Douglas County from Hutchinson Correctional Facility on Friday, and he was granted pretrial release Saturday with a $100,000 own-recognizance bond, meaning he could sign himself out of jail with a pledge to appear for court.
Valdez asked the judge to order Wilson not to post on social media about the case or talk with any media about the case. She said Wilson didn’t have the ability to post about the case while he was incarcerated, but now that he was released she thought it was “more of a possibility.”
Pokorny agreed to that condition. She also lifted a bond condition so Wilson does not have to wear a GPS ankle monitor, and said she has no concerns about Wilson appearing for court when he is supposed to.
Outside the Judicial and Law Enforcement Center after the hearing, Wilson and his attorneys were met by a crowd of about 50 people and multiple TV news stations.
Dubin said he’d already had productive conversations with Valdez, and reiterated that “hopefully we can come to a resolution without there having to be another trial.”
“… I think that this has been a long, hard emotional fight for all parties involved. We’re grateful for the way the justice system is now working — now working,” Dubin emphasized.
Dubin said the many supporters kept Wilson going while he was away “and praying for this day.”
Whalen said they would have a brief meeting with the prosecutors that afternoon, lay some groundwork and go from there.
Here are some FAQs about the case, which has drawn national attention:
Q: How long was Wilson in custody?
Wilson spent about two years and two months behind bars after the jury trial.
Prior to that, he had spent about five weeks in custody of the Douglas County Jail before being released on $75,000 surety bond, according to documents in the case file.
Q: What happened in the case?
Wilson and the accuser met waiting outside the Boom Boom Room at The Hawk, a popular bar near the University of Kansas campus, the night of Sept. 10, 2016.
Both testified that they were kissing in the bar, and that Wilson had “fingered” her at the bar. The girl said she wasn’t expecting that and it surprised her. Under state law, any penetration is considered rape, but the jury did not convict Wilson of that count.
They left the bar for about 15 minutes, the video footage showed, and that’s where their accounts conflicted.
The accuser testified that she was drunk to the point that she was having trouble walking when she met Wilson at the bar, and that he led her back to his house, raped her and then walked her back to the bar.
Wilson testified that at the house, they were getting ready to have sex and he had kissed the girl’s chest, but he got a text message from a friend and got a bad feeling that he needed to go back to the bar.
A sex assault examination showed Wilson’s DNA on the girl’s chest, but nowhere else; however, an expert for the state testified that it was possible that sex could have occurred even though there was no seminal fluid detected in the kit, according to the trial transcript.
The case was filed against Wilson in October 2017, more than a year after that night.
The jury convicted Wilson of one count of rape in January 2019. A second count of rape had been added after the alleged victim — who was 17 when she met Wilson, then 20 — testified at his preliminary hearing, but the jury hung on the second count, and former Chief Assistant DA Amy McGowan did not retry Wilson.
The Kansas Court of Appeals remanded the case back to Douglas County District Court in February 2020, but the COVID-19 pandemic delayed Wilson’s post-trial proceedings until November 2020. The attorneys submitted their findings of fact and conclusions of law to the judge in December.
Q: Why a new trial?
The case has drawn national attention because many believed that Wilson, a young Black man, was wrongly convicted by a mostly white jury in a decision that was symptomatic of larger issues of systemic racism.
Activists held protests in Wilson’s hometown of Wichita, and thousands used #FreeAlbertWilson on social media to voice their thoughts on the case. Those voices grew louder after the evidentiary hearings in November, when it was revealed that Wilson’s attorney during his trial, Forrest Lowry, failed to review text messages that potentially could have been used to make jurors question the accuser’s testimony.
In addition, the state’s forensic psychologist, John Spiridigliozzi, had testified at the trial about diagnosing the girl with post-traumatic stress disorder. He said he had confirmed everything the girl told him with multiple sources.
At the post-trial hearings, however, Spiridigliozzi said he never saw surveillance footage from the bar, only still images. The video was not played to the whole courtroom in order to protect the girl’s identity, but it apparently showed her walking without much trouble, except where she tripped over part of the sidewalk going down the hill on 14th Street.
Text messages also revealed that the girl had been taking an antidepressant prior to September 2016, though testimony made it sound as though her mental health symptoms had onset after that night.
Pokorny said Spiridigliozzi was acting as the state’s “lie detector,” he had testified beyond his expertise, and that his testimony had bolstered the accuser’s credibility for the jury, but Lowry had lodged no objections.
In addition, evidence at the post-trial hearings in November showed that McGowan had redacted part of Spiridgliozzi’s report that could have led Lowry to discover the girl had previously been treated with psychotropic drugs.
“What is amazing is that the state redacted the report, not Dr. Spiridigliozzi,” Pokorny said, making her ruling last week.
She said that the psychologist knew about the girl’s medication history but failed to let the jury know, and Lowry had never requested the unredacted report, so he was unable to cross-examine any witnesses about it.
Lowry in November testified that he thought some of the redacted information seemed familiar, but he believed he would have handled the case differently if he’d had the unredacted report, and the redactions were “self-serving” for the prosecution.
In the defense team’s final arguments submitted to the judge, Whalen and Dubin wrote, “Mr. Lowry’s failings were exacerbated by the impropriety of the State’s redactions. The suppression by the prosecution of material exculpatory evidence—which goes directly to Ms. Doe’s credibility—is an independent Brady violation.” The statement references the landmark 1963 U.S. Supreme Court ruling in Brady v. Maryland, which held that prosecutors were in violation of defendants’ constitutional rights if they withheld exculpatory evidence.
Q: Where does the case stand now?
Wilson is on pretrial release, as if the jury trial and conviction had never happened. But he was in jail or prison from the time his bond was revoked and he was taken into custody on Jan. 10, 2019. He has the presumption of innocence under the law.
The case could resolve with a plea deal or a dismissal, or it could go to a second trial.
McGowan had offered Wilson a plea prior to the start of the first trial, according to court transcripts:
“The defendant is charged with rape, which is a level one person felony, presumptive prison offense, and we had offered aggravated battery, an amended charge, a level 7 person felony. Based on the lack of his criminal record, he would be presumptive probation and we would request on that the sentence of 13 months on the grid, and he would have probation for a term of 24 months. We did ask, however, that if that amended charge was plead to, that it be found to be sexually motivated, which would then trigger registration for a period of 15 years, and that Mr. Lowry told me that that plea was rejected.”
– Amy McGowan, during a hearing Dec. 20, 2018, per court transcripts
Lowry confirmed to the judge that he had discussed the possible outcomes with Wilson and the “worst case scenario” versus the plea offer, and Wilson said he was comfortable with his decision not to take the plea.