 Fredrick Earl Bain with Steve Wax (left), Oregon Innocence Project legal director, and Brittney Plesser, Project attorney
The claim of sexual abuse first surfaced on October 18, 2008, more than a year after Bain and his wife were divorced and Bain was awarded custody of both of their daughters. At the time of the divorce, in September 2007, the older girl was about to turn seven and the younger girl was five years old. According to the older daughter, the sexual abuse occurred when she was about seven years old.
The couple had married in 2000. Three years later, Bain enlisted in the U.S. Army National Guard. In February 2006, Bain was deployed to Afghanistan. About a month later, his wife began a series of sexual affairs and began sending Bain images of herself having sex with other people.
Bain was distraught, but he completed his tour of duty and returned to Fort Hood in Texas in February 2007. He was placed on a medical hold and ultimately was deemed 30 percent disabled due to knee and back problems. He also suffered from post-traumatic stress disorder due to witnessing a girl who looked like his older daughter being killed in an explosion.
When he finally made it home, the house was vacant of furniture—even his clothing was gone. His bank accounts, into which he had sent his entire military salary while he was gone, were empty.
His wife wanted nothing to do with Bain. He soon filed for divorce and he was granted temporary custody of the girls after his wife refused to take a parenting class ordered by the court. The divorce became final in September 2007 and Bain’s ex-wife was ordered to make child support payments.
Their relationship deteriorated further. On several occasions, she shouted that she wished Bain had been killed while on deployment and sent threatening messages. At one point she said she was going to kill Bain before she would let him have the girls forever. The police were called to several visitation change-overs.
On October 18, 2008, after Bain declined Mrs. Bain’s demand that he waive her child support obligation, she called the Boise Police Department and reported that her daughter said that she had “secrets” with Bain. One of the two officers who arrived took the girl aside and asked her about “bad secrets,” but she did not want to talk. At the officer’s suggestion, Bain’s ex-wife took her daughter into a room alone with a tape recorder. After several leading questions, the girl said she had “s-e-x” with Bain. She said it happened at Bain’s house and that Bain drank too much beer, got naked and touched her all over. The tape, however, was stopped and started and did not record the entire conversation.
On October 21, the older daughter was interviewed by an Oregon Department of Human Services protective worker, who reported that she recited similar allegations of sexual abuse.
In May 2009, Bain went to trial in Malheur County Circuit Court. His attorney, who had never handled a serious sexual abuse trial, had not filed any pretrial motions, failed to obtain an opinion from an expert on sexual abuse investigations and did not interview any of the witnesses who were aware of the actions of Bain’s ex-wife prior to the allegation.
The trial lasted two days and included testimony from Bain’s ex-wife, as well as her daughter, who described the alleged abuse.
The child protective services worker was permitted to testify to her account of what Bain’s daughter had told her. She admitted that she did not ask about custody issues or whether the girl had been coached. She said that while it was possible for children that young to “maintain a lie,” there were studies indicating children of that age were difficult to coach and their false reports were less detailed than those of children who were actually abused. The video of the interview was played for the jury.
Bain testified and denied he ever touched the girl in any inappropriate way. He said he had some harmless secrets with her—including that he and his girlfriend were intending to get married. Bain said that his daughter had nightmares once or twice a month and she would come into his bedroom, always accompanied by her younger sister. On a couple of occasions, he permitted the girls to sleep with him.
Bain’s mother testified that between June 2007 and October 2008, she regularly took care of both girls and did not see any change in either girl’s demeanor. The weekend before the allegation was made, Bain’s mother said that not long before Bain was accused, she asked the older girl whether anyone had ever touched her or made her feel uncomfortable. The response was, “No.”
Neither during cross-examination, nor in the defense's case in chief, did Bain’s attorney present evidence of the threats his ex-wife had made or the extent of her vitriol and actions against Bain.
During closing argument, Bain’s attorney noted that neither the police nor the child services worker questioned the girl about custody issues. The attorney argued that there was a “lot of anger” between Bain and his ex-wife and that the daughter had been coached.
On May 22, 2009, the jury, by a vote of 10 to 2, convicted Bain of one count of criminal sexual abuse. He was sentenced to 75 months in prison.
In November 2010, after obtaining a new attorney, Bain filed a petition for post-conviction relief. His post-conviction attorney developed facts about threats and other actions Bain's ex-wife took against him that had not been presented at the trial. The petition claimed that he had received an unfair trial because of his lawyer’s failures, including the failure to interview witnesses, to present evidence of the behavior of Bain’s ex-wife and to obtain an expert.
The petition was denied in June 2012. Bain appealed and the denial was upheld in 2014.
On August 14, 2014, Bain was released on parole.
After Bain was sentenced to prison, his ex-wife received custody of the girls and continued living in Idaho. In 2015, the state of Idaho removed the girls from her custody and Bain’s parents were granted custody. His older daughter started therapy and, as the therapist later reported, she found her voice. Not long after, Bain’s daughter revealed to Bain’s mother that the abuse did not occur and that she wanted to clear her father.
After being contacted by the girl’s grandmother and Bain’s post-conviction attorney, the Oregon Innocence Project began investigating the case. In March 2016, the Oregon Innocence Project filed a federal petition for a writ of habeas corpus on Bain’s behalf. The petition was supported by a video of his daughter recanting her trial testimony and saying that no sexual abuse ever occurred. She said, “Dad’s innocent. I know he is…and that’s where I stand.”
By that time, Bain had taken three separate polygraph examinations and the examiners concluded he was truthful when he denied sexually abusing his daughter.
Oregon Innocence Project Legal Director Steve Wax and senior staff attorney Brittney Plesser obtained opinions from two experts who said that the investigation had been seriously flawed by allowing his then-wife to be the first to interview the older girl. One of the experts was Dr. Robert Stanulis, a psychologist expert in memory and child interviewing techniques, who had been contacted initially by Bain’s trial attorney, but due to timing issues never issued a report and was not called to testify.
Stanulis provided a report saying that “the mother conducting the initial interview was outrageous as it violated the basic tenets of how to conduct an investigation in a way that would not produce false allegations.” Dr. Daniel Reisberg, a psychology professor at Reed College in Portland focusing on memory, concurred. Both said it was a “critical error” that the jury was not provided with evidence of how false memories can be created in children.
In addition, the lawyers interviewed a counselor to whom Bain had taken his daughters to work through the divorce and because of their exposure to the lifestyle of Bain's ex-wife. The counselor, who saw the girls from July through October 2008—the months preceding the day that the abuse claim was made, said that there was never any report of anything suggesting sexual abuse.
In July 2018, U.S. District Judge Malcolm Marsh denied the petition without a hearing. Because Bain had filed the petition after the legal deadline, his only recourse was to show actual innocence. Although the judge said he did not “question the sincerity” of the recantation, he concluded that the “totality of the evidence” was such that Bain did not meet the high standard of actual innocence.
Bain appealed and in December 2019, the Ninth Circuit U.S. Court of Appeals, by a 2 to 1 vote, upheld the denial of the petition. Appeals Judge Andrew Hurwitz dissented because Judge Marsh had made credibility findings without a hearing and said that if the evidence gathered by Bain had been credited, he would have shown actual innocence.
In April 2020, the U.S. Supreme Court ruled that unanimous jury verdicts were required for state court criminal cases. The ruling came from a Louisiana case, putting an end to non-unanimous jury verdicts there and in Oregon, the only two states that still allowed the practice.
In April 2020, Wax and Plesser filed an application for a pardon with Oregon Governor Kate Brown. The application noted that sexual abuse cases are “often rife with such complex scientific issues as psychological complexities involving child suggestibility and manipulation and systemic failures such as ineffective trial counsel, improper or inadequate investigation, non-unanimous juries and procedural barriers. Earl’s case exemplifies each of these causes of wrongful convictions.”
The application said that in March 2020, Malheur County District Attorney Dave Goldthorpe “did what no federal court would do.” He met with Bain’s daughter and allowed her to tell her story. “She repeated…that her father did not sexually abuse her.” Goldthorpe then said he supported a pardon.
The application also said that since Bain completed his post-prison supervision, he had been in regular contact with both of his daughters and was completing arrangements for his younger daughter to live with him. His older daughter age 19, was expecting a child of her own. “She will soon be a mother and continues to appear to be an honest, stable, and caring person,” the application said. “She has been saying for more than four years that the accusation she made against her father is unfounded and that she was not sexually abused. The circumstances under which the initial allegation was made, while rare, are precisely those in which false allegations by children occur.”
On August 18, 2020, Governor Brown granted Bain a full pardon based on actual innocence. A letter from Dustin Buehler, General Counsel to the Governor, stated, “The Governor’s decision to grant you a pardon is based on the unique circumstances of your case, including but not limited to the recantation of the allegations underlying your conviction; the lack of other evidence to support that conviction; the fact that the Malheur County District Attorney fully supports your application for a pardon based on a claim of true innocence; and your crime-free life since the conviction.”
The following week, Oregon removed Bain from the sex offender registry.
In May 2022, Bain filed a claim for compensation from the state of Oregon.
– Maurice Possley
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