Earl Bain of Idaho poses with daughters Joanna (left) and Bailey. Bain recently was pardoned by Gov. Kate Brown after authorities concluded he was innocent of a 2009 criminal charge. (Oregon Independence Project photo)
VALE - In June 2009, a state judge sent Earl Bain to prison for more than six years for a crime he didn’t commit.
Bain, who then lived in Ontario, had insisted he was innocent. At his two-day trial in Malheur County Circuit Court in Vale, Bain told jurors he never sexually abused a 7-year-old girl as charged.
The jury nonetheless convicted him.
Bain never let loose of his claim of innocence.
He maintained it in the years he was an inmate at two Oregon state prisons.
He maintained it in one legal appeal after another.
And he maintained it to a string of lawyers, starting with his Ontario defense attorney and ending up before lawyers for the Oregon Innocence Project.
Now, 11 years later, the state has decided that Bain, indeed, was an innocent man.
Dave Goldthorpe, Malheur County district attorney, concluded so after personally hearing the recantation of the now-teenaged girl who had accused Bain.
Gov. Kate Brown reviewed the evidence, considered the recantation, and heard Goldthorpe’s judgment. On Tuesday, Aug. 18, she put her signature to a pardon for Bain.
Pardons are rare and granting one because a once-convicted person is innocent is even more unusual.
The Enterprise relied on court records, pardon documents and interviews to trace one man’s fight against a system that saw him guilty of a vile crime and now says he should never have been in that courtroom in the first place.
His trouble started about a year after he finished an overseas combat tour.
In 2005, Bain was deployed by the Army National Guard to Afghanistan, where American forces were fighting a bloody conflict. Bain serviced machine guns on attack helicopters and served on security forces. He returned stateside after he was injured and returned to Ontario in June 2007 after being discharged.
He brought home post-traumatic stress disorder and pain. Then, in October 2008, Ontario police began investigating an allegation that Bain had repeatedly abused that 7-year-old girl. She told police about touching and caressing in Bain’s bedroom.
The case, attorneys later maintained, was bungled from the start, with botched police interviews with the girl and no witnesses or physical evidence. The girl’s statements were sufficient for Malheur County prosecutors in December 2008 to charge Bain with first-degree sex abuse.
Three weeks later, they offered Bain a deal – if he pleaded guilty, they’d see he got nothing more than probation.
No deal, Bain said.
But court filings indicate his defense attorney was no more adept at handling a sex abuse case than the investigating officers.
For Renee Denison, an Ontario defense attorney, representing Bain in the case would be her first time handling a Measure 11 sex abuse charge.
In appeals years later, other attorneys argued that Bain deserved a new trial if for no other reason than Denison’s failures. They said she didn’t adequately investigate the case before trial, failing to interview key witnesses. They said she didn’t consult experts in child sex abuse and, during the trial, didn’t adequately question the prosecution’s witnesses, didn’t object to “inadmissible” hearsay and “improper” evidence and didn’t put on evidence of threats against Bain made by the girl’s mother.
Denison said in an email she couldn’t comment on a client’s case but noted that the later appeal in which her work was questioned was dismissed.
The jury voted him guilty 10-2 and he was then sentenced to 75 months. On June 18, 2009, Bain entered state prison, a convicted child abuser ordered to spend the rest of his life registering with authorities as a sex offender.
In prison, Bain worked in the laundry at Eastern Oregon Correctional Institution in Pendleton and then was moved to Deer Ridge Correctional Institution in Madras. There, he helped form the first American Legion post in an Oregon state prison, according to his pardon application.
Attorney Robert Moon of Baker City took over representing Bain, and two weeks before Thanksgiving in 2010, challenged Bain’s conviction. Filing in Umatilla County Circuit Court, Moon catalogued the ways that he considered that Denison mishandled the case. In Oregon, evidence that an attorney had been ineffective can win a new trial for defendants.
But 18 months later a state judge rejected the petition and the Oregon Court of Appeals followed suit on Dec. 17, 2014.
The following summer, the girl who accused Bain confided to a relative that she had never been abused.
The relative reached out to the Oregon Innocence Project, asking for help.
The Innocence Project was founded in 2014 to consider extraordinary cases where people appear to have been wrongly convicted. The team of lawyers, led by former Federal Public Defender Steve Wax, rarely finds justification for representing a felon claiming innocence.
The Oregon operation in six years has received 700 requests for help and reviewed nearly 500. To date, it has taken on just seven clients, including Bain.
More than half the requests for help come from those charged with sex abuse. In 300 abuse cases reviewed by attorneys, 10 included claims that the victim had recanted. Of those 10, Bain was the only one whose case the Oregon project went to court over.
Wax said three factors struck him and his team about the Bain case. One was the recantation. The second was Moon’s assessment that Bain was innocent.
“Bob had that sense, without being aware of the existence of a recantation because it hadn’t happened yet,” Wax said.
The third was that two psychologists who reviewed how the girl had been questioned concluded that “this is a highly, highly suspect allegation.”
Bain was released from prison in August 2015 and moved to Idaho, where went to work for an auto repair business.
“He was living his life under a cloud, perceived as a convicted sex offender and required to register as a sex offender,” Wax said.
Five months after his release, Bain’s chance of getting state courts to consider his case ended when the Oregon Supreme Court dismissed his petition.
Subsequently, Wax and Brittney Plesser, the attorney who led the new effort to clear Bain, traveled to Idaho to meet the accuser, now a teenager.
“She was steadfast in her statement that she was not abused,” according to the pardon application.
The Oregon Innocence Project in March 2016 took Bain’s case to U.S. District Court, asking a judge to consider the girl’s recantation and the reasons she had made the accusation. The judge ruled three years later that while he found the girl’s new statements sincere, that wasn’t enough to justify a new trial.
Bain’s new lawyers persisted.
“We told him we’re not giving up,” Wax said.
The next legal stop was the Ninth Circuit U.S. Court of Appeals, but taking the case there required highly technical legal claims about federal law. The court dismissed the appeal in August 2019.
Now, there was one last chance to clear Bain – a pardon from Oregon’s governor.
Since taking office, Brown has issued 23 pardons and commuted sentences for 12.
The Oregon Innocence Project asked Dave Goldthorpe, the Malheur County district attorney, to meet with the young woman to hear her account of her original allegation and why it wasn’t true.
Goldthorpe had been appointed district attorney in 2016 and had no role in the prosecution of Bain seven years earlier.
Goldthorpe told the Enterprise that he reviewed the case file and then met with the teenager.
“The entire case was on the then-child and, that now adult person said it was all made up and false,” Goldthorpe said. “I land with her. I’d rather be on that side of the scale than other.”
He agreed to support the pardon.
“I believe her and because of that I believe he should have not had to go through what he did,” he said.
“Your DA is to be applauded for being willing to look at the case,” Wax said.
A month after Goldthorpe met the young woman, the Oregon Innocence Project submitted Bain’s pardon application to Brown’s office.
Plesser detailed the legal history of Bain’s effort to clear himself and the emergence of the recantation. She described his life in prison and after he was released.
But the focus was on the original accusation.
“The circumstances under which the initial allegation was made, while rare, are precisely those in which false allegations by children occur,” according to the pardon application.
In the second week of August, Bain’s attorneys got news from Brown’s staff.
They called Bain, reaching him at work at the repair shop. Wax recalled the opening of the conversation.
“Earl, the governor’s office called. She’s going to grant the pardon,” the attorneys told him.
In an email to the Enterprise, Bain described his reaction.
"I was in shock when I found out. Still am. I'm very happy and grateful to have been pardoned, but it'll take me some time to get used to it,” he said by email. He declined an interview request.
“He gets his whole life back,” Wax said.
On Aug. 18, Brown signed the pardon, citing the recantation and Goldthorpe’s support.
Bain shared what life has been like for him since his conviction in that Vale courtroom.
“It's like I was locked in a cage in the dark for 11 years and then someone came and opened the door,” Bain wrote. “I was so accustomed to being in the dark that it's a weird feeling to be out in the light again. Now I feel like the stigma that was attached to me is gone. I don't feel like I always have to explain myself to people. I don't have to carry that weight with me everywhere. It was always a barrier between me and other people where I would have to try to explain myself and my wrongful conviction. Now I just feel relief and freedom because there's nothing dragging me down."
Reporter Pat Caldwell contributed to this report.
Contact Editor Les Zaitz by email at [email protected]
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