By Joe Johnson
An attorney for a former Oconee County High School student accused of raping another student three years ago has filed a motion requesting that the case be dismissed due to prosecutorial misconduct.
Misconduct by the prosecution headed by Western Judicial Circuit Assistant District Attorney Robert Schollmeyer, was cited when the defense attorney for Rahul Joseph Das on Sept. 2 requested and received an order to declare a mistrial from Superior Court Judge Lawton Stephens when the judge learned that the prosecution violated Das’s right to failed to follow the law by not providing Das with information that was favorable to his defense, thereby denying his right to a fair trial.
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.
In the motion to dismiss that was filed Thursday in Oconee County Superior Court, Wiltshire elaborated on the prosecution’s alleged misconduct.
“The prosecution adamantly sought to exclude evidence of other-male DNA found on (the victim) and her clothing,” the motion states. “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.
Continuing, 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 for the Western Circuit 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 a Rahul Das who, when a 17-year-old senior at OCHS, 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 (Sexual Assault Nurse Examiner) exam had come from “several different individuals, but none from the defendant,” Wiltshire said.
The defense attorney said that DNA evidence recovered from her 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 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 prosecutor Schollmeyer prior to trial.
Wiltshire, said 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.
Western Judicial Circuit District Attorney Deborah Gonzalez, whose office is prosecuting Das, has said she could not comment on a pending case.
“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, 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 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.
"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.
The judge has scheduled for Friday morning a hearing on the motion to dismiss the case.