By Joe Johnson
A Superior Court judge on Monday filed an order declaring a mistrial in an Oconee County rape case due to prosecutorial misconduct.
The order put in writing what Judge Lawton Stephens said in court on Thursday, the third day of the trial when he learned that the prosecution failed to provide the defendant with information that was favorable to his defense.
That information was 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 defense attorney Morris “Mo” Wiltshire.
The case at issue is that of a then-17-year-old senior and honors student at OCHS who 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, according to Wiltshire.
The alleged victim was also interviewed by a police detective, and on Sept. 6, 2018 the student 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,” said Wiltshire.
On Thursday the alleged victim reportedly testified that she had engaged in consensual sex the day after she claimed she was allegedly assaulted by the defendant and prior to 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 one of the prosecutors, Western Judicial Circuit Assistant District Attorney Robert 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...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,” the defense attorney 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,” 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, withheld material evidence that was necessary for the defendant to receive a fair trial, and that this violation required a mistrial.
The judge reportedly was visibly angry when Schollmeyer asked if he should worry about losing his license to practice law, to which Stephens said he should be concerned.
In his written ruling the judge said, “The Court finds that the State failed to comply with the discovery requirements...because the State had an affirmative duty to ascertain the identity of the witness and timely provide that information who the Defendant’s counsel.
“Further,” Stephens wrote, “the State intentionally misrepresented to the Court as to when the State was advised of the identity of the witness.
“The Court deemed it impracticable to hold the jury and continue the case on the off chance that the witness could be located, questioned and, if necessary, subpoena (the witness) to come to court within a reasonable amount of time.
“Accordingly, pursuant to (state law), the Court deems it just and necessary to declare a mistrial,” Stephens wrote in his order.
It could take weeks or even months to finalize the criminal case because of the amount of time it takes to prepare trial transcripts that are necessary for the planned hearing in which Wiltshire will ask the judge to dismiss all charges against his client.
Wiltshire said that he expects that a complaint concerning Schollmeyer’s misconduct will be filed with the State Bar of Georgia, but it remained to be seen if a complaint will be filed against the prosecutor’s co-counsel, Assistant District Attorney Kyle Bowland
Once a prosecutorial misconduct complaint is filed, the state bar’s disciplinary committee will have to conduct an investigation that could result in Schollmeyer being exonerated to being disbarred.