Monday, November 4, 2024

Part I: An arrest by a Wilmington police officer ended in a $500,000 settlement. What happened?

(Left) Wilmington Police Department Detective Peter Oehl and (right) James Bader on the day of the arrest. (Port City Daily photo / File)

[Editor’s note: This article contains potentially disturbing material, including alleged sexual assaults on a child. Reader discretion is advised.]

WILMINGTON — On March 15, 2015, James Bader was arrested by the Wilmington Police Department on charges of sexually assaulting and abusing his adopted daughter. Over a year later, the charges were dropped. Earlier this year, a federal civil suit by Bader against the officer who arrested him ended in a $500,000 settlement, paid out by the City of Wilmington’s insurance company.

This summer, WECT broke the story, but officials maintained there had been no wrongdoings: the Wilmington Police Department (WPD) and the District Attorney’s office both maintain that the case was handled appropriately and, since the settlement, no changes in policy or procedure have been instituted. While Bader considered the settlement at least a partial vindication, WPD Chief Ralph Evangelous called it a “business decision,” saying the department was confident probable cause existed to arrest Bader.

But a deeper review of the case — which began in the New Hanover County Department of Social Services (DSS) — leaves questions about Detective Peter Oehl, who pursued the case as one of his first child sexual abuse investigations. It also raises some questions about the length of time between Bader’s arrest and when the charges against him were dropped.

At the same time, the Bader case shows some of the pressures law enforcement officers are under, especially in sexual assault cases and particularly with young victims. Although the investigation and arrest predate the MeToo movement, similar concerns — including taking seriously the allegations made by young women –- play a prominent role. It’s worth noting that while a civil suit like Bader’s is bad press for any law enforcement agency, the media would likely look just as unkindly upon a police department that failed to pursue sexual assault charges.

The case also shows some of the tension between law enforcement and prosecutors. While WPD and the DA’s office often present a unified front, that’s not always completely the case. Testimony from Bader’s civil case, including depositions given by Detective Oehl and Assistant District Attorney Lance Oehrlein, show two different — and, in this case, conflicting — priorities. Part of that conflict includes whether or not exculpatory material, evidence suggesting Bader’s innocence, needed to be considered.

The details of Bader’s case illustrate why the city’s insurance carrier might have decided to settle with him, and why the DA’s office dropped the charges. But they also show the difficulty of investigating and prosecuting sexual assault charges.

Documentation for the following story comes from several sources, including depositions from Bader’s civil suit against Oehl, filed in the Eastern District of North Carolina, Southern Division, as well as the expert witness testimony on behalf of both Bader and Oehl, and Oehl’s correspondence with Bader’s ex-wife, submitted during discovery for the lawsuit. The Wilmington Police Department and District Attorney’s office both declined to comment.

Backstory

In 2004, Bader married his now ex-wife, who at the time had a young daughter and an 11-year-old son, who had been diagnosed on the autism spectrum. Bader would later adopt his stepdaughter and, two years later, the couple had a daughter together.

In 2008, Bader’s adopted daughter mentioned to a school official that she had been “inappropriately disciplined” by her step-father, which triggered a DSS investigation. That same month, DSS concluded there is no evidence to support child abuse, neglect, or dependency; just the same, the incident will later be used as evidence against Bader.

In late 2011, Bader’s wife requested a divorce and by January of 2012 child custody proceedings have started. It is a contentious proceeding, according to court records and expert testimony during Bader’s civil case.

In February, after the couple had formally separated, New Hanover County District Court Judge Jeffrey E. Noecker took the child custody case and presided over it until its conclusion several years later. Bader said was a stressful time for the entire family. Noecker orders joint custody of Bader and his wife’s biological child and initially grants custody of the older daughter to her mother; following court-ordered counseling sessions, Bader is granted visitation rights.

During this time, both DSS and law enforcement conducted home visits. According to court records, between April of 2008 and October of 2013, the older daughter spoke to spoke law enforcement on at least six occasions. At no point did she report sexual abuse by Bader. This includes a May 2012, visit that followed allegations that Bader had kissed the older daughter on the mouth and touched her inappropriately. It’s not clear from the court record who made these allegations, but records do show that a social worker met with the daughter privately and specifically asked her if she had been touched inappropriately; Bader’s step-daughter denied she had been touched sexually. Bader’s biological daughter also reported no inappropriate contact.

The drawing: Allegations, investigation, child abuse hearing

The drawing(s) produced by the autistic son of James Bader's now ex-wife; these drawing launched the DSS and then criminal investigations. (Port City Daily photo / File)
The drawing(s) produced by the autistic son of James Bader’s now ex-wife; these drawing launched the DSS and then criminal investigations. (Port City Daily photo / File)

On January 10, 2014, Bader’s ex-wife was notified by a staff member from her son’s autism support facility that he had made a line figure drawing; according to a DSS report, the staff member said the drawing depicted sexual abuse possibly involving Bader’s step-daughter.

According to a DSS case report, two days later Bader’s ex-wife approached her older daughter with the drawing, describing it as showing “a penis drawn between” the two figures. The daughter initially denied any sexual abuse. The mother asked again, telling her daughter that “you know your brother doesn’t draw things that haven’t really happened.” According to the DSS report, the daughter then told her mother that Bader had raped her twice, in the third and sixth grade, and had also forced her to touch his genitals on at least two occasions.

At that point, the DSS case became a ‘child protective services incident report’ delivered to WPD detective Peter Oehl, who initiated a criminal investigation.

In early February 2014, Oehl obtained a search warrant to seize Bader’s cell phones, computers, and data-storage devices. One computer was issued by New Hanover Regional Medical Center, where Bader worked at the time. A month later, in early March, Oehl obtained a second search warrant and removed part of the older daughter’s mattress for DNA testing.

While Oehl conducted his investigation, DSS filed a juvenile petition in late March — essentially putting Bader on trial for abuse and neglect of both daughters. From late July to early August of 2014, there was a hearing in front of Judge Noecker.

After reviewing evidence and testimony, including Oehl’s, Judge Noecker dismissed the petition in its entirety. Noecker found that the older daughter’s allegations were not credible and that Bader’s denial of those accusations was credible.

In February 2015, Noecker granted joint custody of both the older and younger daughter to Bader and his ex-wife. The older daughter, who was then 16, was put in her mother’s primary custody; primary physical custody of the younger daughter went to Bader.

Problematic evidence

Bader consistently maintained his innocence and passed a battery of polygraph questions about the allegations against him. Still, it’s clear from Detective Oehl’s October 2018 deposition in Bader’s civil suit against him that he found the evidence against Bader to be compelling.

Judge Noecker did not seem to agree. As Bader’s civil suit showed, much of the evidence was not clear-cut.

As Oehl testified, the central piece of evidence that started the investigation were two drawings produced by the autistic son. But, because the son was non-verbal, it was difficult to determine what, exactly, the drawings were supposed to represent.

DSS and Oehl believed the drawing represented Bader sexually assaulting the older daughter. Bader told the court the drawing represented him putting the son in a restraint hold and lowering him to the ground, a common technique used to safely calm and autistic children experiencing emotional outbursts.

The writing on the drawing — the words “pop” and “May” — are also unclear. Oehl believed “May” was a variation of “Mimi,” the son’s nickname for his sister. Bader disputed that, saying the son’s fixation on time likely means “May” was a date, not a name. In Noecker’s ruling, he wrote that the court found Bader’s interpretation of the drawings was accurate.

The issue is further complicated because Oehl appears to have written on the original drawing before it was logged into evidence. During his deposition, Oehl acknowledges he wrote several questions on the drawing in an attempt to get the son to clarify what the drawing was representing. Oehl also stated that a social worker may have written the word “May.”

Oehl was also unable to produce any physical evidence.

During the DSS hearing in the summer of 2014, Oehl testified that the DNA evidence had not come back yet. However, this wasn’t true — in fact, there was no semen or sperm identified on the mattress clippings, and thus nothing to test. Oehl appears to have been notified of this prior to his testimony but didn’t mention it, according to former DSS attorney Dean Hollandsworth, who gave a deposition in Bader’s civil suit. While Oehl was testifying on behalf of DSS, Hollandsworth noted that he had to correct Oehl’s testimony during the juvenile petition hearing because, “I’m not going to hide crap from anyone.”

Oehl would continue to refer to the tests as “inconclusive,” including in his interrogation of Bader and his deposition during Bader’s civil suit — these were also inaccurate, as no test was ever performed.

No pornographic or otherwise incriminating material was found on Bader’s electronic devices. Multiple depositions state that it’s not clear when forensic analysis was complete, but tend to agree that while it may not have been completed during the juvenile hearing it was mostly complete before Bader’s arrest.

Medically, a physical examination of the older daughter came back negative, although because the allegations were several years old, medical experts noted this did not exclude the possibility that she was raped or assaulted. Oehl did not request older medical records, according to his investigative notes.

The other evidence included an angry letter — referred to in court as the “f—ing retarded letter” — which was allegedly written by Bader to the older daughter. However, Bader told the court the letter was written to him by his brother (who has similar handwriting), not his adopted daughter.

Then there was the book: “A Legacy of Masks,” by Sallie Bissell, which Bader gave his stepdaughter to read.

The murder mystery, set in North Carolina, features a child-rapist and murderer named Deke Keener. The character is a local ‘paragon of virtue’ — a church deacon, softball coach, and successful businessman.

In addition to scenes of child abuse, DSS and Oehl were struck by passages in which Keener contemplates using intimidation and violence to silence his victims:

Of course, Bethany was not the first to threaten him. There had been many, over the years. Most he’d easily scared into silence, reminding them of how hard their lies would be to prove, and what sorrows accusing a prominent man with well-placed friends would bring down upon their heads. That usually shut them up pretty fast, but a few had remained stubborn. Those he’d had to deal with differently. It hadn’t been pretty or pleasant, but he’d taken care of them in such a way that they never bothered anybody again.

Oehl believed the book to be a thinly-veiled threat. Assistant District Attorney Oehrlein made the connection explicit in his deposition.

“There’s evidence of grooming; that [Bader] gave his 12-year-old child a book about a well-respected man in his community who sexually abused children and then kills them; and the protagonist — I mean, at the beginning of the book two women — who approach the rapist and say I’m going to out you — he kills within a week. That is classic grooming and coercion to keep a child quiet. There’s no other reason that an adult would give a 10, 11, or 12-year-old that book except for to keep them quiet,” Oehrlein said, adding later that if the daughter was slightly older it was still an “inappropriate” book.

Bader, on the other hand, said that he read the book casually and skipped some of the more unsettling portions. Bader said that the older daughter was an avid reader and when he mentioned to her that he was proud of himself for finishing a book, she asked to read it. He also noted that the Keener character is killed by an apparently magical bear — not a ‘realistic’ ending by his estimation.

Child abuse testimony

Setting aside the other evidence, which Oehrlein acknowledged was circumstantial, there remained the older daughter’s testimony. While Judge Noecker did not find her allegations credible, DSS workers, staff at the Carousel Center (where she was interviewed), and Oehl did.

The testimony of an alleged victim, who was 16 years of age, about events that occurred when she was as young as 8 or 9, is difficult to deal with.

On the one hand, there’s the argument presented by David F. Cloutier, a former North Carolina Department of Justice instructor and an expert witness who testified on Bader’s behalf during his civil trial. Cloutier noted several studies on false allegations that note a “large majority occurred in the context of divorce and child-custody battles” and that often they are put forward by a parent vindictively. Cloutier also noted more than once that the daughter had multiple opportunities to disclose her alleged abuse but did not.

According to Bader, shortly before the daughter disclosed her allegations, the courts had considered a move to order her relocated to a facility away from both Bader and and his ex-wife. Bader said he believed his ex-wife fabricated the accusations and pressured the daughter into swearing to them.

Cloutier noted in his report that Oehl started with the Juvenile Crimes Section of the WPD in September 2013, just three months before DSS referred the Bader case to him. According to Oehl’s deposition, as of October 2018, he had still not received any training on child abuse allegations arising out of contentious custody cases. Cloutier notes that in that deposition Oehl was unfamiliar with the meaning of the word “contentious” in the context of custody cases.

On the other hand, as Oehl and Oehrlein both stated, it is not uncommon for children to remain silent about sexual abuse for years — if not decades — owing to a host of psychological and social factors (this was the motive behind the new North Carolina law, giving victims until the age of 28 to file civil suits over childhood abuse).

Both Oehl and Oehrlein disagreed with Noecker’s decision — Oehrlein testified that while he found Noecker to a “fair” and “good” judge, that he “disagreed with just about everything Judge Noecker said” in Bader’s DSS hearing. Both men also found the daughter’s testimony to be credible.

According to expert testimony provided on behalf of Oehl and WPD by Joe D. Kennedy, a former NCIS special agent and executive vice-president of BlueLine Training Group, LLC., the older daughter was professionally interviewed by both DSS and the Carousel Center.

“There was nothing in the NHC DSS investigative file or the WPD investigative file to suggest she was being untruthful. There is no indication that the allegations were false and that [the daughter] was not raped and sexually abuse,” Kennedy wrote, adding, “The interviews were relevant and accomplished in a professional manner. More importantly, none of the aforementioned professionals believed the allegations were false and/or coached.”

The issue wasn’t whether or not authorities and officials believed the daughter — but whether it was enough to warrant (literally and figuratively) an arrest.

The relationship between WPD and the DA’s office

In theory, only law enforcement can decide if they have probable cause to arrest someone. Only a judge — or, more commonly, a magistrate — can approve a warrant for that arrest. And only the DA’s office can bring charges in criminal court against a suspect once they’re arrested. That’s the division of law and order, in theory.

But in reality, that relationship is a little more complicated.

Oehrlein, and other prosecutors, frequently consult with law enforcement on cases before an arrest is made. In his deposition, Oehrlein noted he consulting on a wide range of issues, from setting up “plausible” scenarios to record phone calls with suspects to making sure that when “officers are in the early part of their careers” in Crimes Against Children Unit that they remember to collect certain types of evidence, to more general issues of probable cause.

Oehrlein also said he consulted with officers to share his perspective on a case’s chance in court, where there’s a much heavier burden of proof than for an arrest.

“When I’m talking to law enforcement officers I’m talking to them about how strong their case is for me to prove in court beyond a reasonable doubt. That’s usually where the difference is, you know, because there’s such a dichotomy of what the level of probable cause is; which is, like, less than 50 percent just by its own definition and beyond a reasonable double, which is obviously much higher,” Oehrlein testified.

According to court documents, Oehrlein met with Oehl in person at the DA’s office at least twice to discuss the Bader case. According to Oehl’s deposition, he didn’t document the time or date of either meeting but stated the first conference was between January and late July of 2014 – after the daughter’s allegations but before the DSS hearing. Oehl noted that he was new to child sex crimes and wanted to make sure he was “doing everything correctly.” Apparently, during the first meeting, Oehrlein advised Oehl not to make an arrest without waiting for forensic evidence reports, and Oehl said he “was good with that.”

According to Oehrlein, the second meeting was before Bader’s arrest in March of 2015 — although it’s less clear what was said during that conference.

According to Oehl, “from what I remember is [Oehrlein] established that I had probable cause, but it was just a tough case.”

Oehrlein confirmed he told Oehl it would be a ‘tough case.’ And, while Oehrlein said he believed there was adequate evidence to arrest Bader, he also denied confirming Oehl had probable cause.

Asked if he did ‘probable cause reviews’ with Oehl, Oehrlein said, “So yes and no. I am not allowed to substitute his judgment for whether or not he — a law enforcement officer has probable cause to make an arrest. So I’ll sometimes give my opinion, but I’ll never tell an officer, yes, I think you have probable cause to arrest someone, or no, I don’t think you have probable cause. That’s up to them.”

And, while Oehrlein made it clear that he could only offer his opinion, it appears Oehl felt he had been ordered not to arrest Bader. According to court records, WPD Lieutenant Thomas Tilmon testified that in the weeks leading up to Bader’s arrest Oehl came to him asked him to overrule a decision by Oehrlein “declining to authorize charges against Bader.”

In Oehl’s deposition, he used the same phrase he used to describe Oerhlein’s opinion, saying Tilmon “determined I had probable cause, but it was a tough case.”

Whether or not Oehrlein explicitly told Oehl not to arrest Bader, Oehl seems to have felt Oehrlein was against the move. It’s not the first time there have been claims that the DA’s office has “not allowed” the Wilmington Police Department to arrest when perhaps officers would like to, most notably in the Allison Foy case. However, District Attorney Ben David has always denied exercising that kind of control over law enforcement.

In this case, the DA’s office did not control Oehl, because shortly after his meetings with Oehrlein and Tilmon, he went to the magistrate’s office to get arrest warrants for Bader.

Stay tuned for Part II, tomorrow, dealing with what came next, and the isssues that led to the federal lawsuit against Oehl (and by extension the city).


Send comments and tips to Benjamin Schachtman at ben@localvoicemedia.com, @pcdben on Twitter, and (910) 538-2001

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