photo by: Mackenzie Clark

Albert Wilson, from left, and his attorneys, Josh Dubin and Michael Whalen, have a brief discussion during a hearing to determine whether Wilson will get a new trial, on Nov. 2, 2020, in Douglas County District Court.

A prosecutor and a defense attorney this week submitted their final written arguments and now await the judge’s decision on whether a man convicted in a Lawrence rape case will get a new trial.

Lawyers for the man, Albert N. Wilson, have argued that their client’s appointed defense attorney was so “constitutionally deficient” that Wilson’s trial was unfair. They introduced evidence that had not previously come out in court during two days of hearings on Nov. 2 and 3.

But the prosecutor — who chose to submit her arguments in writing rather than give oral closing arguments — wrote that the additional evidence might not even be admissible in a trial and that Wilson’s trial attorney had “properly considered and rejected certain trial strategies.”

A jury in January 2019 convicted Wilson, now 25, of one count of rape in connection with a Sept. 11, 2016, incident. Judge Sally Pokorny sentenced Wilson to about 12.5 years in prison, which was the minimum under Kansas law for the high-level felony conviction where the defendant has no criminal history.

As the Journal-World has reported, the victim in the case, a girl who was 17 at the time, met Wilson at The Hawk, a popular bar near the University of Kansas campus. She testified that she was drunk and that Wilson, then a 20-year-old KU student, lifted her skirt and assaulted her at the bar and then walked her to his house a couple of blocks away, raped her, then walked her back to the bar.

Wilson testified that they never had intercourse, though he admitted to penetrating the girl with his fingers before they left the bar. Wilson also said he kissed the girl’s chest, which was corroborated by DNA evidence. He said they had returned to the bar after a few minutes because his friend was looking for him. A sexual assault examination of the girl found no seminal fluid, but she had bruises on her thighs, according to court documents. Under Kansas rape law, any penetration by any body part or object constitutes rape.

Wilson was convicted of rape for the incident at the house, but the jury hung on the incident at the bar.

On appeal, Wilson has been represented by two attorneys, Michael Whalen and Josh Dubin. Based on Whalen’s motion, the Kansas Court of Appeals agreed on Feb. 6, 2020, to send the case back to Douglas County District Court for Judge Pokorny to decide whether Wilson should get a new trial.

Dubin and Whalen presented evidence that may have raised questions about the credibility of the victim, who was referred to as Jane Doe for purposes of the hearings that were being livestreamed on YouTube to an audience of hundreds. Although Dubin made a plea to the judge to rule from the bench at the end of the hearings, Kate Duncan Butler, assistant district attorney, chose to make her case to the judge in writing.

photo by: Mackenzie Clark

Assistant Douglas County District Attorney Kate Duncan Butler questions a witness during a hearing on Tuesday, Nov. 3, 2020, in Douglas County District Court to determine whether Albert Wilson should get a new trial based on ineffective assistance of counsel. Seated next to Butler is Deputy DA David Melton.

The conclusion of Dubin and Whalen’s final written argument was that the case came down to Doe’s credibility. That was key in a number of specific points they made, but one particular focus was on data from the girl’s phone. If Wilson’s appointed attorney, Forrest Lowry, had realized he had certain additional evidence, including some text messages and photos from the girl’s phone, he could have more effectively cross-examined her and others who testified, they wrote.

Butler, too, wrote that “The text messages discussed at the hearing seem to indicate that she (Doe) had a bit more experience with alcohol and mental-health treatment than she revealed to” the forensic psychologist who evaluated her and diagnosed her with post-traumatic stress disorder.

However, Butler questioned whether some of the messages would have even been admissible had Lowry attempted to use them during Wilson’s trial. The admission of messages about Doe’s personal life months before the incident “dramatically increases the likelihood of blaming and shaming her as the victim,” Butler wrote.

“It is also unclear how those messages are relevant now, except perhaps to paint Doe as dishonest,” she wrote.

It was likely that Lowry, an experienced attorney who has handled dozens of sexual assault cases, had simply forgotten in the time since the jury trial that he had reviewed the phone download, Butler wrote — “After all, neither the text messages nor the photographs demonstrate that Doe is totally unbelievable.”

Dubin and Whalen showed Lowry some photos during the evidentiary hearing that showed Doe at dances and other events with friends in the months after the incident, which contradicted testimony that she had withdrawn socially. Lowry said he was not familiar with the photos, but if he had seen them, he probably would have questioned Doe about them.

Butler wrote that Wilson was asking the judge for a new trial because evidence showed that Doe did not behave like a sexual assault victim suffering from PTSD; “There is, however, no one way for a victim to behave.”

“Beneath Wilson’s claims lurks the insidious implication that attending a school dance is entirely incompatible with PTSD– and, by extension, with being sexually assaulted,” Butler wrote. “These things are not mutually exclusive.

“Just because Doe posed and smiled with her friends does not mean she exaggerated or fabricated her symptoms,” she continued. “Doe explained this general concept in her testimony, saying, ‘I think a lot of people put pictures where they look happy on social media when they’re not happy in reality.'”

A judge for the Kansas Court of Appeals wrote in the Feb. 6 order remanding the case back to district court, “We ask the district court and the parties to expedite this remand as much as possible.”

However, there is no set time frame in which Pokorny must issue her ruling, Whalen and the district attorney’s office confirmed Wednesday.