photo by: Chris Conde/Journal-World

Albert Wilson appears at a hearing on Jan. 29, 2024, in Douglas County District Court.

Two sides in a man’s wrongful conviction and incarceration suit made their final arguments before a Douglas County judge on Tuesday — and clashed about an alleged rape victim’s credibility and whether certain pieces of evidence that hadn’t come out in the man’s original trial should be weighed at all.

In the civil trial in Douglas County District Court, Albert Wilson, 28, of Wichita, and his attorney, Laurel Driskell, of Salina, are trying to prove to a judge that Wilson was wrongfully convicted of rape in January 2019 in Douglas County District Court.

Wilson was accused of raping a then-17-year-old girl in 2016 after meeting her at a bar near the University of Kansas campus. He was convicted of rape by force or fear in January of 2019 and spent about two years in prison, but on appeal he was granted a new trial in March of 2021 after it was determined that his trial attorney, Forrest Lowry, had provided ineffective assistance of counsel. Douglas County District Attorney Suzanne Valdez later dismissed the case with prejudice, meaning it could not be retried, as the Journal-World reported.

In his lawsuit, which was filed in 2023, Wilson is seeking an award of $65,000 for each year he was incarcerated, attorney fees and a certificate of innocence.

photo by: Chris Conde/Journal-World

Laurel Driskell, who represents Albert Wilson, appears at a hearing on Jan. 30, 2024, in Douglas County District Court.

The trial, which began Monday, is a bench trial. That means Judge Carl Folsom III will be the one making the final decision in the case. Unlike in a criminal trial, where the state is required to prove its case beyond a reasonable doubt, this trial requires Wilson to show by a preponderance of the evidence — a lower standard of proof than in a criminal case — that he did not commit the crime.

The alleged incident occurred on the night of Sept. 10, 2016, when the then 17-year-old girl met Wilson at the Jayhawk Cafe, 1340 Ohio St. Wilson was accused of leading the girl, who claimed to be very drunk, back to his apartment nearby and raping her, then walking back to the bar with her, as the Journal-World reported.

Driskell, in her final remarks on Tuesday, pointed to Wilson’s denial that he had sex with the girl, as well as to videos of the two at the Jayhawk Cafe that night that Driskell said showed the girl was not afraid of Wilson.

She also claimed that the girl’s sexual assault exam was lacking in physical evidence; the exam found Wilson’s DNA on the woman’s chest but nowhere else, as well as some bruises which the state had argued were a result of rape.

On Tuesday, Driskell also extensively questioned Wilson’s appellate attorney, Michael Whalen — but much of that line of questioning was objected to by Assistant Kansas Attorney General Shon Qualseth, who was representing the state.

Whalen testified that Wilson was granted a new trial in part because Lowry had failed to bring up text messages from the girl’s phone that appeared to contradict testimony at the 2019 trial. Whalen said the texts, which the alleged victim sent to her friends, were inconsistent not only with her trial testimony, but also with a psychological evaluation that she underwent earlier in the case. The jurors might have come to a different conclusion in 2019 if they had seen this evidence, Whalen said.

The text messages themselves were not read in court on Tuesday. But Driskell did address some of the texts on Monday, when she read from a transcript of a deposition where one of Wilson’s previous attorneys, Larry Michel, of Salina, had questioned the woman.

In the transcript, Michel confronted the woman about messages where she had told friends about being drunk. The woman said that she hadn’t claimed she never drank before the night of the incident; she did say that she hadn’t been drunk to that degree before. Michel also questioned the woman about texts involving her sexual experiences; the woman said she didn’t deny having had sexual encounters in the past, but that her experience with sexual activity at that time in her life was limited.

Whalen testified Tuesday that in the 2019 trial, the woman presented herself as having little to no experience with alcohol and sex. He also spoke about another piece of evidence that wasn’t presented then — the full report from the woman’s psychological exam.

In 2019, Whalen said, the forensic psychologist who did the exam, John Spiridigliozzi, did not mention any prior mental illness diagnoses or prescriptions that the girl had before the incident. However, when Whalen received Spiridigliozzi’s full report during the appeal process, Whalen said it showed that the girl did have a diagnosis before the incident and had been prescribed drugs for anxiety and depression — information that was not presented at Wilson’s trial.

photo by: Chris Conde/Journal-World

Albert Wilson appears at a hearing on Jan. 30, 2024, in Douglas County District Court.

photo by: Chris Conde/Journal-World

Assistant Kansas Attorney General Shon Qualseth appears for the state in the Albert Wilson case on Monday, Jan. 29, 2024, in Douglas County District Court.

Qualseth consistently pushed back against the arguments related to Lowry’s performance and to the evidence that did not come out in the 2019 trial. Those arguments had to do with what the jury might have done differently if it had heard that evidence, he said, and they were therefore appropriate during the appeal. However, he said, none of that evidence was directly related to whether or not Wilson was innocent.

According to Kansas law, Wilson must show four elements for his case to be successful: that he was convicted and imprisoned; that the conviction was reversed or vacated and dismissed; that he did not commit the crime; and that he did not do anything during the case that resulted in his conviction.

In his closing argument, Qualseth pointed to earlier in the trial when Wilson had said he “hadn’t done anything wrong” the night of the incident; Qualseth asked, rhetorically, why Wilson didn’t say that he didn’t do anything at all. Qualseth also said Driskell focused on her assertion that the girl, in the videos, did not appear to be afraid of Wilson. He said it seemed like Driskell was arguing that Wilson did do something that night but didn’t force himself on the girl.

“Jane Doe did not make this up,” Qualseth said. He reminded the court of the woman’s tearful video deposition and said that she had nothing to gain by continuing to involve herself in the legal process.

photo by: Chris Conde/Journal-World

Albert Wilson, right, appears with his attorneys Laurel Driskell, left, and Alex Driskell, at a hearing on Jan. 30, 2024, in Douglas County District Court.

Qualseth and Driskell also differed about the 15-minute timeline of the incident — Driskell said it wasn’t realistic, while Qualseth said it was possible, and that it would have taken just five minutes each way for Wilson and the girl to walk to and from the apartment. Qualseth also said that it didn’t make sense that Wilson would take the girl back to his apartment to have sex with her, but then decide not to after his friend sent him a text message asking him to come back to the bar. He mentioned a text message from Wilson to his friends about how women “cant come to the crib unless they [expletive for having sex] or helping,” which he said showed the intent that Wilson had when inviting a woman home.

He also said the woman had testified that the incident felt rehearsed, as if Wilson had done it numerous times before. And he pointed to testimony from her cousin and Wilson’s friend, who both said that her demeanor had changed. Qualseth said that even Wilson had testified on Monday that her demeanor changed.

In addition, Qualseth asserted that throughout this week’s trial, Wilson had failed to present any evidence that proved he did not commit the crime.

“He has not tipped the scale in his favor,” Qualseth said.

Qualseth even filed a motion for the case to be dismissed, claiming that Wilson had failed to present any evidence that would prove his innocence. Folsom said he had previously ruled against a similar motion and asked if the new motion was any different; Qualseth said it was. He argued that now that the evidence had been presented at the trial, he thought Wilson had nothing to show.

After the arguments, Folsom took the case under advisement. He gave the parties until March 1 to present any additional findings of fact or conclusions of law that they wish the court to consider, and said he would issue his ruling in writing sometime after that.

photo by: Chris Conde/Journal-World

Judge Carl Folsom III presides over the Albert Wilson trial for wrongful conviction on Jan. 30, 2024, in Douglas County District Court.