photo by: Mackenzie Clark

Defense attorney Josh Dubin, standing at center, questions a witness during a Van Cleave hearing in the case of his client, Albert Wilson, seated at left, on Nov. 2, 2020 in Douglas County District Court. Wilson's other appellate attorney, Michael Whalen, is seated at right.

Updated at 7:11 p.m. Monday:

A defense attorney and a forensic psychologist both testified Monday that if they’d known about additional evidence, they would have handled a Lawrence rape case differently.

In January 2019, Albert Wilson, now 24, was convicted of one count of rape in connection with an incident from Sept. 11, 2016, and the jury hung on a second count. The Kansas Court of Appeals sent the case back to Douglas County District Court for Judge Sally Pokorny to determine whether Wilson’s attorney provided him with adequate representation, and ultimately whether he should get a new trial.

Wilson met the victim, a 17-year-old girl, at the Hawk, a Lawrence bar near the University of Kansas campus, late on Sept. 10, 2016. The girl said she was very intoxicated and that Wilson, then 20, had led her back to his home nearby and assaulted her.

Michael Whalen, who is representing Wilson for his appeal along with Josh Dubin, of the Innocence Project, found evidence in discovery that Wilson’s appointed counsel for his trial, Forrest Lowry, never used. Forensic psychologist John Spiridigliozzi, who evaluated the girl prior to Wilson’s trial, said that other evidence that contradicted what the girl had told him would have been good to know prior to coming to his diagnosis and writing his report for the case.

photo by: Mackenzie Clark

Attorney Forrest Lowry reads an exhibit during a hearing to determine whether his former client, Albert Wilson, will get a new trial, Nov. 2, 2020.

“Many of the facts were missing,” Spiridigliozzi testified Monday.

The psychologist had testified at the trial that he believed the girl suffered from post-traumatic stress disorder. He said that the girl, her mother and the girl’s friend had told him the symptoms had begun after that night.

However, text messages taken from the girl’s phone showed that the girl had actually discussed her Prozac prescription with her mother about a month prior to September 2016. Prozac is generally prescribed as an antidepressant.

The evaluation was completed in March 2018, about a year and a half later. Spiridigliozzi said Monday that starting Prozac after that night “definitely” could have indicated a severity level, “if indeed something happened.” It also could have indicated whether her symptoms had a rapid onset, as she had reported. But he testified that he had requested earlier treatment records from the girl but never received them, so he was not sure when she had begun taking the drug.

Spiridigliozzi had also never seen surveillance video from the bar, which — from the short clips he was shown Monday — he testified was not consistent with the girl’s self-report that she was extremely intoxicated, stumbling and struggling to stand up as she left the bar with Wilson. He had only seen still images, he said.

Whalen questioned Lowry about 17 photos found in data from the girl’s phone that showed her out with friends at dances in the weeks and month or so following Sept. 11, 2016, though she had told Spiridigliozzi that she couldn’t stand being out in crowds anymore.

photo by: Mackenzie Clark

Attorney Josh Dubin, kneeling at center, shows video surveillance footage from The Hawk to forensic psychologist John Spiridigliozzi during a hearing to determine whether Dubin’s client, Albert Wilson, should get a new trial, Monday, Nov. 2, 2020 in Douglas County District Court. At left is Assistant Douglas County District Attorney Kate Duncan Butler, and at right is court reporter Mary Kaye Howe.

The video was not played for the court and the photos were not shown based on an agreed order not to use the girl’s real name or real initials but to instead refer to her as Jane Doe.

Lowry said the case was “close,” and evidence that could have helped him question the girl’s credibility would have been helpful. He also said that after the trial, he, the prosecutor and the judge had received a “lengthy” email from a juror who said she believed she had voted the wrong way and believed Wilson was not actually guilty.

Spiridigliozzi also testified Monday that the girl had told him that before that night, the most alcohol she’d ever had was one beer; however, there were also multiple texts in her phone in which she had told someone she was drunk in a video she’d posted, and that she had whiskey in August 2016 if a friend wanted to “pregame.”

Dubin said there were other text messages that suggested that the girl had a more extensive sexual history than what she’d told the psychologist, but details of those messages were not shared in court. He entered those into evidence for Pokorny to review.

All of that evidence was included in the original case file, but Lowry did not use any of it during the trial in cross-examination of the girl or Spiridigliozzi.

Whalen also asked Lowry about Spiridigliozzi’s report, which the prosecutor, Amy McGowan, had redacted. Lowry — looking at the redacted version and the complete version side by side on the witness stand — said he thought some paragraphs in the complete report looked familiar, but he didn’t have anything in his records to affirm that he had ever received a copy or read it.

The redacted portions were about the girl’s experience with the antidepressant prescription and some counseling sessions back when she was in middle school — information that Lowry said also would have been helpful. Spiridigliozzi testified that he did not ask for his report to be redacted.

Wilson’s team had also asked a criminal defense attorney who had about 10 years of experience to testify as an expert about legal issues with Wilson’s case. Pokorny asked how his knowledge was greater than that of a presiding judge with 42 years of experience. Whalen recalled the witness shortly thereafter.

The hearing will continue through the day Tuesday, beginning with cross-examination of Lowry. Both parties told the judge they were optimistic that they could finish the remaining witnesses within the two full days for which the hearing was initially scheduled.

Pokorny said she did not yet know whether she’d want to rule from the bench Tuesday, but she said she generally does not do so in ineffective assistance of counsel cases.

photo by: Mackenzie Clark

A group of people gather in support of Albert Wilson, a man who was convicted in a Lawrence rape case in January 2019, on Monday, Nov. 2, 2020, outside the Douglas County Judicial and Law Enforcement Center. Wilson’s case was sent back to Douglas County District Court to determine whether he should get a new trial.

photo by: Mackenzie Clark

Michael Whalen, right, addresses a group of people gathered in support of Whalen’s client, Albert Wilson, on Monday, Nov. 2, 2020, outside the Douglas County Judicial and Law Enforcement Center.