photo by: Chris Conde/Journal-World

From left to right, Dionte Brown, Tiger Smiley, Murphy Theodore and Malachi Thomas are pictured at their preliminary hearing on June 27, 2023.

The rape trial for two men that was set to begin this week was put on hold at the 11th hour over the alleged victim’s continuing noncooperation in the case.

The woman had accused four men of brutally raping her over several days in March of 2023 while she was on drugs and in and out of consciousness and of videotaping the assaults. The woman testified at the men’s preliminary hearing in June of 2023, when she was cross-examined by four different defense attorneys, but after that she moved to Arizona, where she evidently became a transient, was in and out of legal trouble and the hospital and had no reliable way of being contacted.

Because she did not show up to give testimony at the trial of two of the men in July — Malachi Thomas and Dionte Brown — those two cases were dismissed.

The other two men — Tiger Smiley and Murphy Theodore — were scheduled for trial this week, but that trial was put on hold Tuesday as the state appeals an adverse ruling by Judge Sally Pokorny, who said the state had not exercised sufficient diligence in getting the woman back to Kansas.

Because the woman hasn’t been participating in the proceedings, the state is seeking to use her testimony from the preliminary hearing as evidence against Smiley and Theodore at trial, but in order to use that testimony it had to convince Pokorny that the woman was personally unavailable as a witness, which it failed to do Tuesday.

The state, represented by David Greenwald, called four witnesses to testify about efforts to subpoena the woman in Arizona: a Lawrence police detective, plus an investigator, a trial assistant and a victim-witness coordinator from the Douglas County District Attorney’s Office. Greenwald argued that the state had made good faith efforts to secure the woman’s appearance at trial and had done enough “for this court to find her unavailable,” enabling the use of the prior testimony at trial. He said that the woman had a Douglas County warrant for an extraditable offense that Maricopa County, Arizona, essentially ignored when releasing her from its own jail on a misdemeanor drug offense.

“She is transient; she lives out of state,” Greenwald told Pokorny, in trying to make the case that the DA’s office could not have done anything more in its effort to secure the woman’s appearance.

Attorneys for the two men, John Kerns and Branden Smith, argued that the woman was “not off the grid” and had been in custody multiple times in Maricopa County but that there were “no meaningful steps” by the state to serve the woman, including failing to inquire why no receipt had been returned for certified mail sent to Arizona officials by the Douglas County DA’s Office.

In her ruling Tuesday, Pokorny said the state knew early on that the woman was a reluctant witness who was unlikely “to voluntarily appear for anything” and that efforts should have begun much earlier, as far back as May rather than September, to serve her in Arizona.

Because she found due diligence had not been met, Pokorny was unwilling to declare the woman unavailable, meaning her prior testimony would not be admitted.

Pokorny then asked Greenwald how he wanted to proceed, saying that she would be ready for jury selection Wednesday morning. But without the woman’s testimony, Greenwald said he wasn’t going to proceed to trial and would instead appeal Pokorny’s decision to the Kansas Court of Appeals.

Smiley is currently out of custody on a $50,000 bond, and Theodore is being held at the Douglas County Jail on a $200,000 bond and has an additional charge of breach of privacy.