Albert Wilson will be given a bench trial to prove his innocence in wrongful conviction case, judge rules

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Case ‘cannot be proven by the face of the pleadings or by any admitted facts,’ judge writes

A judge has ruled that he needs to hear the evidence to determine whether Albert Wilson was wrongly convicted of rape and should be entitled to damages, so the case will proceed to a bench trial.

Wilson was 23 years old when he was sentenced to more than 12 years in prison after a Douglas County jury found him guilty of rape in January 2019. The case made headlines across the country because many people believed that Wilson, a young Black man, was wrongly convicted by a jury of mostly white women, symptomatic of larger issues of systemic racism.

Wilson’s conviction was overturned in March 2021. Douglas County District Court Judge Sally Pokorny ruled that the jury could have come to a different verdict 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. Pokorny ruled that a retrial was necessary. Wilson was released from prison days later, and his case was set for a retrial that would have begun in February 2022. But just before Christmas 2021, the district attorney’s office dismissed the case, saying that the matter had been resolved through a restorative justice session.

Wilson, now 27, filed a lawsuit against the state in April 2022, seeking monetary relief allowed under the state’s wrongful conviction law. In total, damages sought come to $195,000 plus attorney fees, according to a pretrial conference order. He also seeks a certificate of innocence.

The state attorney general’s office had asked Douglas County District Court Judge Carl Folsom III to make a decision on the case based on attorneys’ legal arguments. In particular, they argued that Wilson’s conviction had not been overturned because he was proved innocent — rather, the judge had ruled that Wilson’s trial attorney had provided him ineffective assistance.

Kansas’ law on wrongful conviction civil cases (K.S.A. 60-5004) is not written to require a criminal defendant-turned-plaintiff to have had their conviction overturned because of actual innocence in order to pursue a wrongful conviction lawsuit against the state.

“The Court rejects the State’s argument that Mr. Wilson must prove that the reversal or vacation of the conviction was because he did not commit the crime; that he was innocent. The Court also rejects the State’s alternative argument — that Mr. Wilson must prove that his criminal case was dismissed because he did not commit the crime,” and neither position was consistent with the statute, Folsom wrote.

Wilson asserted throughout the duration of the criminal case, filed in 2017, his jury trial, his appeal and his present case that he did not rape “Jane Doe.” He testified that they had some sexual contact, but he has consistently denied that he raped Doe at his home. Prosecutors and attorneys for the state have never indicated that they believe Wilson was not guilty.

Because the elements of the statute are part of a factual dispute between Wilson and the state, the case “cannot be proven by the face of the pleadings or by any admitted facts,” Folsom wrote in denying the state’s motion for summary judgment based on the court filings.


In other words, the case must proceed to a trial in order to determine whether Wilson was indeed wrongly convicted.

“The State’s argument requires the Court to read language into the statute that is simply not there,” Folsom wrote in his order. “… The Court declines the State’s invitation to essentially rewrite the statute.”

Protective order for deposition denied

The judge also denied the state’s motion for a protective order to prevent Wilson from being in the same room as Doe, who originally reported in 2017 that Wilson had raped her, for a deposition.

Assistant Attorney General Shon Qualseth had argued that Doe was traumatized by the incident, and Wilson could view her deposition from the next room.

Wilson’s attorney, Larry Michel, argued that there was no way that Wilson would be able to communicate with him in real time during the deposition if he was confined to another room.


Folsom agreed with Michel, writing that Wilson has the burden of proof at the trial in this case, and he has the statutory right to be present during any deposition. “Although the due-process rights at a deposition are not parallel to the constitutional protections of a criminal trial, parties are permitted to attend depositions” under state law, Folsom wrote.

Even if Wilson were watching via videoconference or other electronic means, being confined to another room would limit his ability to provide Michel with real-time input, Folsom wrote.

The case is currently set for a five-day bench trial to begin Aug. 28.

Folsom will hear the evidence and determine whether Wilson is able to prove through a preponderance of the evidence that he did not commit the crime for which he was convicted.

“Preponderance of the evidence” is a lower standard than the “beyond a reasonable doubt” standard the state must meet to convict someone in a criminal case.

Also under the statute, Wilson must prove to the judge that he was convicted of a felony crime and subsequently imprisoned; that his conviction was vacated and the charges were dismissed; and that he did not commit perjury or fabricate evidence to cause his own conviction.

Read more about this case in the articles linked below.

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Mackenzie Clark (she/her), reporter/founder of The Lawrence Times, can be reached at mclark (at) lawrencekstimes (dot) com. Read more of her work for the Times here. Check out her staff bio here.

More coverage: Albert Wilson case

Albert Wilson will be given a bench trial to prove his innocence in wrongful conviction case, judge rules

Share this post or save for later

A judge says he needs to hear the evidence to determine whether Albert Wilson was wrongly convicted of rape, so the case will go to a bench trial rather than be decided based on attorneys’ arguments.


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