photo by: Sara Shepherd/Journal-World File Photo

In this Journal-World file photo from Jan. 9, 2019, Albert N. Wilson takes the stand at his own trial in Douglas County District Court.

Albert Wilson claims he was wrongly convicted of rape in Douglas County — but does he need to be formally declared innocent in order for his lawsuit against the state to go forward?

That’s what a Douglas County District Court judge is now considering after hearing arguments from the state’s assistant attorney general and Wilson’s lawyer on Thursday afternoon. The state made a motion in March to dismiss Wilson’s suit outright, and Judge Carl Folsom said he will rule on it prior to Aug. 28, when a bench trial is scheduled in the case.

As the Journal-World has reported, Wilson, 27, of Wichita, was convicted of rape in January 2019, but that conviction was vacated on appeal due to ineffective counsel. A retrial was ordered, but Douglas County District Attorney Suzanne Valdez eventually declined to retry the case, and it was dismissed on Dec. 22, 2021.

Then, in April of 2022, Wilson filed a wrongful conviction and imprisonment suit against the state, seeking monetary relief; attorney fees; tuition assistance; the right to participate in the state health care benefits program; and a certificate of innocence expunging convictions and arrests in connection with the case. In total, Wilson spent about two years in jail and prison.

At Thursday’s hearing, Assistant Attorney General Shon Qualseth said the state’s key issue was that Valdez’s office never gave a legal reason for why Wilson’s rape case was dismissed. Qualseth argued that the state law governing wrongful imprisonment claims requires Wilson to establish “by a preponderance of evidence” not only that his conviction was vacated, but also that he “did not commit the crime or crimes for which (he) was convicted.”

Wilson’s attorney, Larry Michel, argued that Qualseth was misinterpreting the wrongful conviction statute. Michel said he believed that a formal finding of innocence was not required, and that the fact that Wilson’s charges were dismissed with prejudice, meaning they could not be refiled, was enough to demonstrate that Wilson did not commit the crime.

Folsom had questions about Qualseth’s interpretation — specifically, whether it was rooted in state case law or was merely Qualseth’s own interpretation of the statute. Qualseth said it was just his own interpretation, and that there weren’t any prior court rulings on the law to draw from.

But Qualseth also said he’d worked on a previous wrongful conviction case where a DA’s office was subpoenaed for testimony about why the case was dismissed. He said he thought the explanation from the DA in that case was sufficient to establish the person’s innocence.

Folsom also wondered why Qualseth was asking for Wilson’s case to be dismissed now when Wilson would have to prove his case at the upcoming bench trial anyway.

As the Journal-World has reported, the woman who accused Wilson of rape, 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 was convicted of rape for the incident at the house, but the jury hung on the incident at the bar. When District Court Judge Sally Pokorny ordered the retrial in 2021, she said defense counsel could have raised questions based on thousands of text messages, which had not been used as evidence in the trial, to influence the jury’s verdict.

If the suit does go forward, there’s another wrinkle that the attorneys discussed Thursday: how information should be gathered from Wilson’s accuser.

Michel has subpoenaed the woman to testify in the wrongful conviction suit, but Qualseth made a special request on the woman’s behalf: that Wilson be in a different room when that questioning takes place.

Qualseth said that the woman is afraid of being in the same room as Wilson, and that Wilson should be in a separate room and should communicate with his attorney electronically. Michel said that was an unusual request. He said that if he had to leave the room or use electronic messages to confer with Wilson, it would drag out the deposition and interrupt the flow of questioning.

Folsom said he was unfamiliar with this type of request, as well, but that he would give the woman the opportunity to make the argument herself. He said Qualseth would have 14 days to confer with the woman and her attorney and to contact the court if they needed to have a special hearing about the issue.