PASSAGE OF THE DAY: "Prior to trial, the state had turned over to Lowry 2,000 pages of text messages and photos from Z.L.’s phone. Lowry would later acknowledge he failed to review this evidence, which contradicted Z.L.’s testimony and undermined the testimony of Spiridigliozzi. The text messages indicated that Z.L. was a frequent drinker, despite her age and testimony, and that she was sexually experienced at the time of the attack. Generally, courts do not allow a victim’s sexual history to be used by defendants, but Z.L. had reported to Spiridigliozzi that she had only had sex one time prior to the alleged attack, and he would later acknowledge the falsehood went to a question of honesty in her self-reporting. In addition, her text messages indicated that she continued to socialize with large groups of people, rather than withdraw from friends because of her trauma. The messages also showed that Z.L. was taking anti-depressants before the incident on September 10, 2016. Z.L. and her mother had not disclosed this information to Spiridigliozzi. Separately, the state had given Lowry a redacted version of Spiridigliozzi’s report. Lowry didn’t ask for the unredacted version, which mentioned Z.L.’s present use of anti-depressants and her previous mental-health treatments. The motion argued that having this information would have allowed Lowry to more effectively cross-examine Spiridigliozzi and Z.L. about whether Z.L.’s alleged PTSD was connected to the incident with Wilson or was related to earlier events in her life. A two-day hearing was held on November 2-3, 2020. It revealed additional problems with Lowry’s representation and the credibility of the state’s evidence. Spiridigliozzi wrote in his report that he had used a video from the Jayhawk bar in his research. But he hadn’t, because the state never gave it to him. Instead, he relied on still photos. The videos were at odds with Z.L.’s testimony. She had said that she was unsteady on her feet and that Wilson had picked her up and carried her. The video showed the two walking “at a rather brisk pace,” with no evidence of “disorientation,” Spiridigliozzi said at the hearing. He said that the video was not “consistent” with Z.L.’s self-reporting."
ENTRY: National Registry of exonerations; By Ken Otterbourg; Last updated on March 21, 2022. Contributing factors: False or misleading forensic evidence; Perjury or false accusation; inadequate legal defence;
GIST: On September 11, 2016, a 17-year-old girl known in court records as Z.L. went to a hospital in Lawrence, Kansas, and requested a sexual-assault examination. She said that the night before, she had met 20-year-old Albert Wilson at the Jayhawk Café, a popular bar near the University of Kansas, where Wilson was a student.
Police arrested Wilson on October 11, 2017, after a swab from Z.L.’s chest showed DNA consistent with his genetic profile. He was charged with sexual assault and rape by force of fear. The assault charge was tied to the alleged incident at the bar; the rape charge was tied to the alleged incident at the apartment.
Prior to the trial’s start in Douglas County District Court, the state hired Dr. John Spiridigliozzi, a psychologist, to perform an evaluation of Z.L. He met with Z.L. several times in March 2018 and issued a report on May 10, 2018, that said Z.L. had post-traumatic stress disorder (PTSD). Most of his findings were based on responses that Z.L. and her mother had given to his questions. He had asked the women for Z.L.’s medical records, but they did not provide him with this information.
Wilson, who was from Wichita, Kansas, had no criminal record. He was represented by Forrest Lowry, who was being paid half his customary rate through the state’s Board of Indigent Defense Service. Lowry would later say: “My theory was that this was a case of consent and that it was a case of buyer’s remorse from a young woman whose family pressured her into pressing charges in this case.”
At trial, Z.L. testified about the events of September 10, 2016. She said that she had gotten drunk at the bar and as an inexperienced drinker: “I’d only really had beer like, once or twice sort of thing.” She also testified that the sexual assault left her with panic attacks, and that she was afraid of crowds and being around people.
Spiridigliozzi shored up Z.L.’s testimony, lending credibility to her accounts of PTSD and how the assault had damaged her life. He said: “She lost friends. At school she would hide because she couldn’t stand being around larger groups of people.” He also testified that he had vouched for the accuracy of Z.L.’s self-reporting. “Everything here has more than one source that I have reported,” Spiridigliozzi said.
Based on Z.L.’s statements, Spiridigliozzi testified that she had a blood-alcohol content of 0.25 at the time of the alleged attack. Although not a medical doctor, Spiridigliozzi told the jurors the effects of that level of intoxication and used a chart to illustrate the issue.
He also testified that Z.L. had superior intelligence. This was not based on the administration of an IQ test, but rather Z.L.’s acceptance as a National Merit Scholar and her enrollment in “gifted programs” at school.
The trial judge had told Spiridigliozzi that he could not say Z.L. had been raped; that was an issue for the jury. But in his testimony about her disassociation from the alleged attack, Spiridigliozzi said: “After the rape, she said that he had removed or pulled down her undergarments, and she was lying with her legs off of the bed …” Lowry did not object. Later, he would say, “I guess I just missed it.” He made little attempt to cross-examine Spiridigliozzi and probe how he arrived at his findings.
Rachel Hunt, a forensic scientist in the biology section of the Kansas Bureau of Investigation, testified that a swab from Z.L.’s chest found a “partial foreign DNA profile” was “consistent with the known DNA profile of Albert Wilson.” She also said there was no evidence of DNA from Wilson anywhere else on Z.L.’s body.
Wilson testified in his own defense. He denied sexually assaulting Z.L. and said they didn’t have sex. Blacks are approximately 4 percent of Douglas County’s population, and Wilson was tried before an all-white, mostly female jury. The jury hung on the sexual-assault charge but convicted Wilson of the rape charge on January 10, 2019. Wilson was later sentenced to 12 years and three months in prison.
Wilson appealed. His new attorney, Michael Whelan, filed a motion on January 13, 2020, for a hearing on whether Lowry provided ineffective assistance of counsel.
First, Whelan said, Lowry had done only a cursory investigation on Wilson’s behalf. Lowry hired a private investigator, but he didn’t locate any witnesses from the bar. And neither Lowry nor the investigator ever interviewed the five other persons who lived with Wilson, which would have “revealed character and community evidence that was strongly supportive of Mr. Wilson.”
Prior to trial, the state had turned over to Lowry 2,000 pages of text messages and photos from Z.L.’s phone. Lowry would later acknowledge he failed to review this evidence, which contradicted Z.L.’s testimony and undermined the testimony of Spiridigliozzi.
The text messages indicated that Z.L. was a frequent drinker, despite her age and testimony, and that she was sexually experienced at the time of the attack. Generally, courts do not allow a victim’s sexual history to be used by defendants, but Z.L. had reported to Spiridigliozzi that she had only had sex one time prior to the alleged attack, and he would later acknowledge the falsehood went to a question of honesty in her self-reporting. In addition, her text messages indicated that she continued to socialize with large groups of people, rather than withdraw from friends because of her trauma.
The messages also showed that Z.L. was taking anti-depressants before the incident on September 10, 2016. Z.L. and her mother had not disclosed this information to Spiridigliozzi.
Separately, the state had given Lowry a redacted version of Spiridigliozzi’s report. Lowry didn’t ask for the unredacted version, which mentioned Z.L.’s present use of anti-depressants and her previous mental-health treatments. The motion argued that having this information would have allowed Lowry to more effectively cross-examine Spiridigliozzi and Z.L. about whether Z.L.’s alleged PTSD was connected to the incident with Wilson or was related to earlier events in her life.
A two-day hearing was held on November 2-3, 2020. It revealed additional problems with Lowry’s representation and the credibility of the state’s evidence.
Spiridigliozzi wrote in his report that he had used a video from the Jayhawk bar in his research. But he hadn’t, because the state never gave it to him. Instead, he relied on still photos. The videos were at odds with Z.L.’s testimony. She had said that she was unsteady on her feet and that Wilson had picked her up and carried her. The video showed the two walking “at a rather brisk pace,” with no evidence of “disorientation,” Spiridigliozzi said at the hearing. He said that the video was not “consistent” with Z.L.’s self-reporting.
Lowry admitted at the hearing that he should have requested the unredacted report.
In a pleading filed on December 20, 2021, Whalen and attorney Josh Dubin, who had joined Wilson’s defense, wrote: “Once Mr. Lowry was made aware that these same documents were in his possession the whole time, he acknowledged that he would have used them and they could have affected the outcome of the trial. There is no act more basic to an attorney representing a client than to review the discovery given to them by the State. That is simply how criminal defense works.”
Judge Sally Pokorny of Douglas County District Court vacated Wilson’s conviction on March 16, 2021. Wilson was released from prison on March 23, 2021.
“The court’s confidence in the jury’s verdict is undermined by Mr. Lowry’s failure to review text messages,” Pokorny said. She also said the text messages undermined Spiridigliozzi’s testimony. “It is my firm belief that if a jury knew the information contained in the 2,000 text messages taken from the victim’s phone, there is a substantial likelihood the outcome of this case would have been different.”
By now, Wilson’s case – which involved a young Black man being convicted by an all-white jury of a sexual assault of a white girl – had drawn national attention. In an attempt to avoid a retrial, the Douglas County District Attorney’s Office offered Wilson a plea deal, but he refused to accept it.
On December 22, 2021, the case was dismissed after a motion by District Attorney Suzanne Valdez. She said in a statement that prosecutors and Wilson’s attorneys worked to resolve the case through mediation and a commitment to restorative justice. In this case, she said, Z.L. wanted “to address Mr. Wilson directly and to convey to him the impact this entire experience has had on her.”
Wilson agreed to the meeting, and the two parties met with Retired District Judge Kevin Moriarty serving as the mediator.
“Justice comes in different forms, and there is no ‘one size fits all’ approach when it comes to resolving delicate, difficult matters,” Valdez said. “By and large, justice is dictated by the unique intricacies of each individual case and the objectives and expectations of the parties. The unique intricacies of this case led the parties to a resolution by way of restorative justice.”
The entire entry can be read at:
https://www.law.umich.edu/special/exoneration/Pages/casedetail.aspx?caseid=6181
PUBLISHER'S NOTE: I am monitoring this case/issue. Keep your eye on the Charles Smith Blog for reports on developments. The Toronto Star, my previous employer for more than twenty incredible years, has put considerable effort into exposing the harm caused by Dr. Charles Smith and his protectors - and into pushing for reform of Ontario's forensic pediatric pathology system. The Star has a "topic" section which focuses on recent stories related to Dr. Charles Smith. It can be found at: http://www.thestar.com/topic/charlessmith. Information on "The Charles Smith Blog Award"- and its nomination process - can be found at: http://smithforensic.blogspot.com/2011/05/charles-smith-blog-award-nominations.html Please send any comments or information on other cases and issues of interest to the readers of this blog to: hlevy15@gmail.com. Harold Levy: Publisher: The Charles Smith Blog;
