By Joe Johnson
An attorney whose misconduct last year caused the mistrial of an Oconee County high school student charged with sexually assaulting another student in 2018 is no longer employed by the Western Judicial Circuit.
Robert Schollmeyer, former deputy chief assistant district attorney for the judicial circuit that includes Athens-Clarke and Oconee counties, reportedly left the DA’s office last week, but District Attorney Deborah Gonzalez is not saying whether she fired Schollmeyer, he left on his own accord, or he is gone for another reason.
Gonzalez did not respond to emails from Classic City News seeking answers to those questions, but instead her spokesperson, David Lyle, replied on Monday, “The office has no comment.”
The former rape defendant’s attorney, Morris “Mo” Wiltshire, said that the local DA’s office is better off without a prosecutor that does not follow the law.
“Any prosecutor that willfully hides evidence from the defense and then intentionally attempts to mislead the judge about it is so lacking in the necessary ethics that he has absolutely no business serving as a prosecutor,” Wiltshire said.
”Mr. Schollmeyer’s departure from our D.A.’s office is long overdue.” he said.
The defense attorney said that he asked for and was granted a mistrial “with prejudice” due to the prosecution deliberately withholding evidence that was favorable to his client and was required by law to be disclosed, thereby depriving him of a fair trial.
“I’ve served for over 25 years as a prosecutor and defense attorney in this judicial circuit, and I take very seriously my duty to oppose government abuse,” Wiltshire said.
The trial was held in Oconee County Superior Court and was presided over by Judge Lawton Stephens who, according to Wiltshire, explained to the jury “that he had been forced to declare a mistrial due to prosecutorial misconduct.”
The case at issue was that of a young man who, when a 17-year-old senior at Oconee County High School, attended a house party where alcohol was consumed on Aug. 26, 2018 along with other schoolmates, including one who two days after the party accused the student of raping and sodomizing her.
The alleged victim underwent a forensic examination provided by Athens-Clarke County Sexual Assault Nurse Examiners, Inc. (SANE), during which she said she had no other sex within five days of the alleged assault, Wiltshire said.
The alleged victim was also interviewed by a detective, and on Sept. 6, 2018 the OCHS honors student, who at the time was student body president, was arrested on charges of rape and aggravated sodomy.
In the meantime, it was determined at the Georgia Bureau of Investigation’s State Crime Lab that DNA samples collected from the victim during the SANE exam had come from “several different individuals, but none from the defendant,” Wiltshire said.
The defense attorney said that DNA evidence recovered from the complaining witness’ shorts contained genetic material of at least three male individuals, one of whom was alleged to have been the defendant.
After the case finally went to trial in September, the alleged victim testified that she had engaged in consensual sex the day after she claimed she was assaulted by the defendant, which Wiltshire said would have been a point in time preceding the day she had the SANE exam.
“This information directly contradicted the testimony of the SANE nurse examiner who had testified that she had questioned the complaining witness about consensual sex partners and had been told there were none,” Wiltshire said. “It was also not contained in her forensic interview that was conducted with investigators on August 29, 2018, nor was it in the written statement that she prepared for investigators dated August 30, 2018.”
During her testimony, the alleged victim identified by name the person she claimed to have had consensual sex with, Wiltshire said, and during cross-examination she revealed that she had shared the name of that person with Schollmeyer.
“At this point it was clear we had to address an issue of prosecutorial misconduct,” Wiltshire said. “This information was not revealed to the defendant prior to trial as required by law, including Brady v. Maryland and its progeny, which requires prosecutors to share with defendants evidence that is or may be exculpatory. “The prosecutor’s failure to disclose this information prevented the defendant from having an opportunity to identify, interview, test or subpoena this person and supposed source of the DNA that is so much at issue in this case,” Wiltshire said.
It was at this point that the judge removed the jury from the courtroom to hold a hearing on when prosecutors learned of this information.
“During the course of this hearing, prosecutor Robert Schollmeyer misled the court when he denied having been told the information by the witness and then, shortly thereafter, reversed himself when it was pointed out to him that as the witness had just testified that she told him the name and if that was false, it would mean that his witness had just fabricated her testimony,” Wiltshire said. “Schollmeyer then admitted he had indeed heard the name, but maintained he had only heard the first name and not the full name. He also claimed that he had never asked the witness for the name of the person. He admitted he had learned of this information well before trial, roughly 10 days before trial, and had failed to make diligent inquiry into the matter and to disclose it to the defense as required.
“When it was revealed that the prosecutor had deliberately concealed information he was required to disclose to enable the defendant to have a fair trial, I made a motion for mistrial with prejudice.”
After the judge declared a mistrial, Gonzalez declined comment, but said, “My office has requested the transcript so I can review it to determine exactly what occurred. My office takes all matters regarding constitutional rights very seriously.”