By Joe Johnson
A rape case in Oconee County that has been marred by controversy has been reassigned to a district attorney in another judicial circuit.
The case of the State of Georgia vs. Rahul Joseph Das came to a halt on Sept. 2 when the judge granted a mistrial on a claim by the defense of prosecutorial misconduct and the defense subsequently filed a motion to dismiss the case.
A hearing on the motion to dismiss had been scheduled for Friday, but that hearing was continued indefinitely with the case changing hands from the DA for the Western Judicial Circuit, which includes Athens-Clarke and Oconee counties to the DA for the Augusta Judicial Circuit that includes Richmond and Burke counties.
“Nothing is going to go forward on Friday, nothing is going to go forward next week,” defense attorney Morris “Mo” Wiltshire said. “As soon as I learn which particular assistant district attorney within the Augusta Circuit District Attorney's office has been assigned to the case, I will certainly want to discuss the case with them and expect them to do the right thing and dismiss the case.
“I am certain that whoever the new prosecutor is they will want some time to get up to speed on this very involved situation and I stand ready to do everything that I can to help them get a good handle on things,” the defense attorney said. “It's unfortunate that the effort of the Western Circuit district attorney to have her office removed from the case was not pursued more diligently and also was not disclosed more promptly. As a result, the clerk of court, the judge's office and of course my team has been put to a lot of time and trouble getting ready for a hearing that now must be continued.”
When asked for comment from Western Judicial Circuit DA Deborah Gonzalez, her spokesperson, David Lyle replied instead, saying, “This action was taken because the District Attorney determined it was in the interest of justice” to have the case reassigned to another DA.
Wiltshire said when he spoke Wednesday with state Attorney General’s office, he was told that Gonzalez requested that the rape case be reassigned due to “a conflict of interest, which must mean she decided to try to continue to employ Robert Schollmeyer,” the prosecutor who caused the mistral by not disclosing possible exculpatory evidence to the defense.
Superior Court Judge Lawton Stephens declared the mistrial when he learned the prosecution team, headed by Schollmeyer, violated Das’ right to a fair trial by not providing his attorney with information that the alleged rape victim told investigators that she had sex with another person after the alleged assault and prior to a forensic exam that determined that DNA recovered from her genitals were from “several individuals, but not the defendant,” according to Wiltshire.
The Sept. 2 motion to dismiss stated, “The prosecution adamantly sought to exclude evidence of other-male DNA found on (the victim) and her clothing, and following the Court’s denial (to exclude the evidence) on the eve of trial, the prosecution was unprepared to proceed.
“Without any physical evidence of penetration of (the victim) except by persons other than the Defendant, the prosecution decided to goad the defense into moving for a mistrial, which would give the State time to complete the investigation it neglected to do over the last three years,” according to the motion.
The motion argues, “The prosecution methodically revealed a Brady violation, which included lying to the Court and voluntarily exposing the lie shortly thereafter. The lead prosecutor’s actions exhibited such a lack of knowledge for prosecutorial conduct in a courtroom that the Court can only attribute his actions to an attempt to bring about a mistrial.”
Schollmeyer, who at the time of the mistrial was chief deputy assistant DA who had extensive knowledge of court proceedings from his previous position as a prosecutor in Fulton County and serving 17 years on the bench as an associate circuit judge in Missouri.
The case at issue is that of Rahul Das 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 Das 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 police detective, and on Sept. 6, 2018 Das 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 her underwear contained genetic material of at least three male individuals, one of whom was alleged to have been the defendant.
When interviewed by an investigator, the girl said the shared the underwear with her mother and she did not know if they had been washed, according to a transcript of the interview.
After the case finally went to trial last month, the complaining witness testified that she had engaged in consensual sex the day after she claimed she was assaulted by Das, 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 prior to trial.
It was at that point, Wiltshire said that he asked for and was granted a mistrial “with prejudice” due to prosecutors deliberately withholding evidence that was favorable to his client and that they were required by law to disclose, thereby depriving him of a fair trial.
“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,” the defense attorney said.
The judge then 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, 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 that he was required to disclose to enable the defendant to have a fair trial, I made a motion for mistrial with prejudice,” Wiltshire said. “I asked the judge to find that the prosecutor had committed misconduct and had sought to and actually deprived the defendant of his ability to have a fair trial by intentionally withholding this evidence, that jeopardy had attached as we were already in the middle of a trial, and that a continuance would not provide sufficient remedy to rectify the misdeeds of the prosecutor.”
Stephens granted the motion, finding that the prosecutor had willfully committed prosecutorial misconduct by withholding material evidence that was necessary for the defendant to receive a fair trial, and that this violation required a mistrial.