Albert Wilson, convicted in Lawrence rape case, could get a new trial
photo by: Sara Shepherd/Journal-World File Photo
A man who some have argued was wrongly convicted in a Lawrence rape case could see a new trial.
The Kansas Court of Appeals has remanded the case to Douglas County District Court for a hearing to determine whether Albert N. Wilson was deprived of effective counsel.
Wilson, now 24, was sentenced to more than 12 years in prison on April 3, 2019, after a jury found him guilty of raping a then-17-year-old girl he met at a bar near the University of Kansas campus.
Wilson, of Wichita, was a full-time KU student at the time. According to previous Journal-World reports and documents in the case file, Wilson met the girl at the Jayhawk Cafe, aka the Hawk, late on Sept. 10, 2016. The two started kissing in the club, went together to his nearby home for a few minutes, and then returned to the bar.
The all-white and mostly female jury heard drastically different accounts of what happened in those few minutes from the young white girl and from Wilson, who is black. Many of Wilson’s supporters — who have launched a website and social media campaign using the hashtag #FreeAlbertWilson — believe the makeup of the jury was a dooming factor for the defendant.
Michael Whalen, a Wichita-based appellate attorney, is representing Wilson now. Whalen filed a motion for what’s known as a Van Cleave hearing on Jan. 13.
Elizabeth Cateforis, a clinical professor with the Paul E. Wilson Project for Innocence and Postconviction Remedies at KU, has had no involvement with Wilson’s case. However, she explained the purpose of a Van Cleave hearing, which takes its name from a 1986 Kansas Supreme Court case. It is done during the direct appeal process, Cateforis said, rather than waiting to see whether an appeal is successful.
“Instead of waiting and doing something after the appeal is over, this is a mechanism to get what appellate counsel often think are obvious issues of ineffective assistance of counsel back into the district court sooner,” she said.
Appellate counsel must make a showing, factually and legally, that there is a legitimate claim of ineffective assistance of counsel, Cateforis said.
“So getting over that hurdle, it doesn’t guarantee a good outcome (for the defendant-appellant), but it at least means the appellate court thought there was something that the district court should consider,” she said.
Whalen’s motion lists a number of issues with the testimony of forensic psychologist John Spiridigliozzi, who evaluated the girl’s mental health and testified for the prosecution. It notes that the results of an assessment he administered, for instance, were found to be “valid for cautious interpretation of the data,” though his testimony relied heavily upon that report.
The psychologist also testified about how the girl had withdrawn from her friends and focused extensively on her schoolwork, yet according to Whalen’s motion, exculpatory evidence from her phone showed more than 100 photos of her at a school dance with friends within a week of the reported rape, plus thousands of messages that showed regular interactions with peers.
Whalen wrote that Wilson’s appointed defense attorney, Forrest Lowry, never filed any pretrial motions, nor objected to Spiridigliozzi’s testimony during trial, despite what Whalen points to as the psychologist speculating at times and stating allegations as facts at others.
The girl went to the hospital for a sexual assault examination the morning after the reported rape, but Wilson’s DNA was only found on her chest, where he had admitted to kissing her. Though she said he raped her, he said they never had sex. The rape kit found no pubic hair or other bodily secretions; yet, Whalen wrote, Lowry didn’t consult a DNA expert who could have testified that the evidence did not support the elements of rape.
Wilson had originally been charged with two counts of rape, but the jury was hung on one of them. It was “not a case of overwhelming evidence,” Whalen wrote.
“The jury rejected one count of rape and a letter was received by the judge and the parties that two of the jurors did not believe there was force or fear and that (the girl) was in fear because of the decisions she made,” Whalen wrote in the motion. Still, though, Lowry did not request to recall the jury.
In a 21-page motion filed Feb. 3 and accompanied by several other appeals court opinions, Assistant Douglas County District Attorney Kate Duncan Butler argued against the motion for a Van Cleave hearing. Butler wrote that the allegations against Wilson’s trial attorney were without evidentiary or legal support.
Butler wrote that many of the “barebones” allegations the motion raised did not rise to the level of ineffective assistance of counsel, and that the motion failed to reference case law or the underlying case file to back its points.
Referencing the evidence from the girl’s phone that Whalen mentioned, Butler wrote that “It is possible for someone’s relationships to deteriorate while they also attend social events or send text messages. Put simply, it is unclear how these photographs and messages — which, again, are neither in the record or supplied by Wilson — relate to the ultimate question of whether he assaulted” the girl.
Presiding Judge Kim R. Schroeder did not elaborate in the Feb. 6 Kansas Court of Appeals ruling about why the court was remanding the case to the district court. The ruling simply asks the parties to expedite the request as much as possible and asks for an update on the status no later than March 9.
Wilson’s case is set for a status conference in Douglas County District Court on Wednesday, Feb. 26.
Cheryl Wright Kunard, assistant to Douglas County District Attorney Charles Branson, said the DA’s office must decline to comment on the remand since a hearing is pending in Douglas County District Court.
The Journal-World has reached out to Whalen, Lowry, and a group that is pushing for Wilson’s exoneration but was unable to reach any of them as of early Friday evening.
Wilson is currently an inmate of Hutchinson Correctional Facility, Kansas Department of Corrections records show. His earliest possible release date as his case stands currently is May 1, 2029.
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