Following two days of evidentiary hearings regarding a possible retrial of Albert Wilson’s 2019 case, Douglas County District Court Judge Sally Pokorny asked that facts, findings, and conclusions of law from both sides be submitted by December 21, 2020. Pokorny did not indicate when she might give her ruling.

Wilson, a Black man who is now 24, was convicted by an all-white jury on one count of rape in January 2019, after he had been accused of raping a 17-year-old girl he met at the Hawk, a bar near the University of Kansas campus, in 2016.

The girl, referred to throughout proceedings as Jane Doe, said she was intoxicated during the incident, and that Wilson took her back to his home, where he raped her. She said she suffered significant mental and emotional effects after the incident.

However, Wilson’s current attorney, Michael Whalen, is arguing for a retrial on the grounds that substantial evidence was not considered during Wilson’s initial case. Arguing alongside Whalen was Josh Dubin of the Innocence Project. Assistant Douglas County District Attorney Kate Duncan Butler is arguing on behalf of the county.

Case for Retrial

Whalen argued that Forrest Lowry, who was initially appointed to represent Wilson in 2019, had failed to pursue multiple evidentiary and legal options in the defense, resulting in prejudice against Wilson in the decision. Whalen said in his opening remarks on Monday that Lowry’s failure in providing counsel resulted in a violation of Wilson’s sixth amendment rights.

Whalen raised several main issues with Lowry’s defense of Wilson, including: an overstep of expert testimony, a failure of Doe and her mother to report relevant information regarding personal and medical history, a failure to utilize sufficient expertise regarding rape kit results, and a failure to use all available surveillance footage to verify witness testimony.

In his closing remarks on Tuesday, after cross-examining the state’s expert witness, psychologist Dr. Christy Blanchard, Whalen said: “There is systemic racism in our society, and there are false reports of alleged assaults by white victims accusing Black men of assault and Dr. Blanchard, the state’s own expert, finally conceded that today.”

Whelan stressed throughout the two days of the evidentiary hearing that this was a question of credibility—of whose account of the incident and the after effects was truthful—and was not an attempt to attack Doe’s character.

"It's not about her character. It's all about whether or not she was being truthful,” he said in his opening remarks on Monday. In his closing statement on Tuesday, he reiterated: “This was indeed essentially a credibility contest.”

Missing Data in Psychologist Evaluation

Blanchard reviewed the initial trial’s reports from John Spiridigliozzi, a forensic psychologist. Spiridigliozzi evaluated Doe a year and a half after the alleged incident and indicated that she reported developing symptoms typical of PTSD after the incident.

Spiridigliozzi said during examination on Monday that both Doe and her mother reported that Doe’s symptoms started after the incident involving Wilson. However, Whalen provided texts as evidence that Doe was taking Prozac, a medication generally prescribed as an antidepressant, well before meeting Wilson. Medications such as Prozac can also interact with alcohol.

Spiridigliozzi said this information was not provided to him and would have been relevant to his initial evaluation. He also said he tried to request previous mental health records and was not able to get them at the time.

“One can’t fathom a more important fact in this case where it was a credibility contest,” Whelan said about Spiridigliozzi’s testimony in his closing comments. “He essentially, in this courtroom, your honor, he undid his trial testimony. He admitted that this was all important.”

Lowry said he did not pursue a secondary evaluation of Doe in Wilson’s initial case because he was concerned such a strategy could backfire. He was also not aware of Doe’s previous mental health history.

Doe also self-reported having no experience with alcohol before the night of the incident. However, Whalen provided over 2000 pages of texts documenting Doe purchasing alcohol, becoming inebriated, getting into fights while inebriated and not remembering events afterward. The texts also call into question her claim that she had only had one sexual encounter previous to the event involving Wilson, Whalen explained. Lowry and Spiridigliozzi were also unaware of this history.

Doe also self-reported being extremely intoxicated and stumbling when she left the bar to go to Wilson’s residence. Video surveillance data contradicts her report, but Spiridigliozzi said he was not made aware of this footage, either.

Whalen questioned Spiridigliozzi about how his evaluation might have differed had he been aware of this context, including questions about whether malingering was a possible concern.

Claims to Failure of Counsel

Ultimately, Whalen argued, Lowry’s failure to pursue relevant bodies of evidence led to Wilson being discriminated against in the decision. Lowry also failed to challenge the all-white jury that heard Wilson’s case.

Whalen also pointed out that Lowry had not sufficiently examined rape kit and DNA data, including data that indicated that while Wilson’s DNA had been found on Doe’s chest, for example, no evidence consistent with a claim of rape had been found.

Whalen also cited emails from Nicole Robinson, whom he referred to as like a mother to Wilson, from during Wilson’s initial case. The emails contained requests for meetings, updates, and strategizing from Lowry, even requesting specific motions to be filed. The emails were unanswered, Whalen said.

“Here is a layperson who makes a desperate cry in the night to his lawyer, and is able to surmise much of what we proved here today, and he ignores it?” he said of Lowry in his closing remarks.

“(Wilson) just couldn’t have a stronger case,” Whalen said in his closing remarks. “I would ask you, your honor, to please let this man, let this man say ‘I didn’t do it, I am not guilty,’ and be fairly represented and have effective assistance of council so that he can put this awful nightmare behind him.”

“I’ve gotten to know him as a promising young man that does have a bright future, and I ask you to help him realize that, and it begins by granting this motion and granting him a new trial,” he added.