By Joe Johnson
The case of an Oconee County high school student charged with sexually assaulting another student three years ago ended with a mistrial on Thursday due to prosecutorial misconduct.
The defendant’s attorney, Morris “Mo” 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.
“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. “I have never had one of our prosecutors commit misconduct that required the court to declare a mistrial in a serious felony case. That is something that just never happens. What these prosecutors did in this case is an outrage. All of us that live here in Athens and Oconee County deserve much better than this from our district attorney.”
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” and then adjourned the trial.
Western Judicial Circuit District Attorney Deborah Gonzalez, whose office prosecuted the case issued the following statement: “I cannot comment on the merits of a pending case, as this matter still is. 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.”
The case is only technically pending, however, and the two involved prosecutors – assistant district attorneys Robert Schollmeyer and Kyle Bowland -- face possible sanctions up to and including disbarment after an anticipated complaint is filed with the State Bar of Georgia.
Before the judge can dismiss the case, he will have to hold a “plea in bar” hearing in which the defense will set out reasons why the case can no longer proceed.
The case at issue is that of a young man 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 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 police detective, and on Sept. 6, 2018 the OCHS honors student and 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 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 week, 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 prosecutor 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,” 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.
“Since it was caused by the prosecutor’s willful misconduct, and it was done to induce the defense to move for a mistrial, the case is over and they will not be allowed to retry the defendant,” Wiltshire said.
Wiltshire said a complaint of prosecutorial misconduct will be filed with the state bar, but when and by whom had yet to be decided.
“The role of the prosecutor is to be a minister of justice,” he said. “The public prosecutor is required to be fair, forthright, honest and worthy of public trust. When prosecutors cheat, withhold evidence, and deprive people of their constitutional right to a fair trial, the entire community suffers. This includes not only the tax-paying citizens that live here, the jurors sworn to fairly decide cases according to the law, law enforcement serving the community, victims of crime that count on the prosecutor to do justice, and all of our citizen-accused that find themselves facing charges brought by the prosecutor. Each and every person that lives in this circuit has an absolute right to expect fairness in our court system.”
Schollmeyer, who is chief deputy assistant district attorney for Athens-Clarke and Oconee counties, formerly was a prosecutor in Fulton County and served for 17 years as an associate circuit judge in Missouri.
Wiltshire said that any bar complaint would definitely name him, but it remained to be seen if any action would be taken against Bowland.
“He didn’t make any explicit misrepresentations to the court on the record, but it’s an open question how long he’s known about the effort to suppress this evidence and he’s likely going to be called to give an account of what he knew and when he knew it,” the defense attorney said.
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 plea in bar hearing to dismiss the case.
And once a prosecutorial misconduct complaint is filed, the state bar’s disciplinary committee will have to conduct an investigation.