The Mountaineer

The high price of innocence
Written by Beth Pleming  
Wednesday, 07 April 2010

A Waynesville, NC man falsely accused of raping a 10-year-old girl has paid dearly for vindication, but he is grateful the truth has finally emerged.

Two years ago, Waynesville resident Donald “Pete” McCracken Jr., 40, was indicted on a charge of first-degree rape — a B1 felony that, at the time, carried a minimum sentence of 16 years in prison, with a maximum sentence of up to life without parole.
Almost 14 months later, the alleged victim recanted the accusation and the charge against McCracken was dismissed. He was declared innocent. But it cost him more than $100,000 and a “year of hell” to clear his name. Still, he fears his reputation may be tainted beyond repair.

“Everyone says I won,” said McCracken of the dismissal. “But there really are no winners. … My reputation took a hit, and I lost time with my daughter that nobody, not even God, can give me back. You can’t put a price tag on that.”

The allegation

McCracken said he was “blindsided” by a scheme that he believes was plotted as an attempt to cost him custody of his 11-year-old daughter who he has raised for more than six years.

“I think I was set up by certain parties to cost me custody of my child,” he said.

In August 2006, McCracken and his live-in girlfriend at the time, Shelly Sutton, ended a three-year relationship. The break up was cordial, he said. “There was no trouble, no fighting, no cussing … nothing like that.”

For the following two years, McCracken said he had no contact with his ex. Then, in November 2008 he received a call from a detective at the Macon County Sheriff’s Office. In a 39-page allegation, Sutton’s then 15-year-old daughter, Brittany Rathbone, accused McCracken of raping her five years earlier while she was changing clothes one afternoon after school.

“In this case, the young woman disclosed a series of allegations that were bad, pretty harsh allegations,” said Assistant District Attorney Ashley Hornsby Welch. “There was a lapse in her disclosure, which is not abnormal, especially for a child. … so, that did not bother us at all. … She was interviewed by a forensic interviewer, a detective and a doctor, and she was consistent. She came across as very credible and seemed solid and sincere in every interview. … In these types of cases, especially due to the lapse in time, we often don’t see DNA or physical injuries, so it really a lot of times is based on a child’s credibility. That can be pretty scary when charging someone with charges this significant. The charges brought against Mr. McCracken were very serious charges.” The decision to charge McCracken was given careful consideration, she continued. “He was accused of such a terrible crime. That’s one of the worst to be accused of. … Those decisions are not made lightly,” said Welch. “It’s not a rush to arrest because we know that the charge alone carries some serious repercussions. In this case (McCracken) was arrested, then the case was sent to the grand jury, and (they) found probable cause to give us an indictment …At that time we had her interview and an interview with (McCracken), and of course he had always denied it, but we see that a lot. We did not have a polygraph (at that time), so what we had was her word. Her interview was strong and she was believable.”

McCracken was indicted Nov. 10, 2008, by a Macon County grand jury and jailed under $50,000 bond. He was released from jail five days later after his parents put up their house as bail.

“I was sick to my stomach,” McCracken said of the allegation. “Upset, to say the least. Knowing that I was innocent, that I hadn’t done anything wrong and was being charged with a crime I didn’t commit.”

That was the beginning of a 14-month “nightmare” that McCracken said cost him more than $100,000 to prove his innocence. Furthermore, he lost quality time with his young daughter who was also aware of the allegation, as well as his role coaching a youth football league.

“I was facing at least 16 years in prison for a class B1 felony. The charges alone were very destructive to my family and especially my daughter, who I’ve raised since she was in kindergarten,” McCracken said. “I can roll with the punches, but she never deserved this. She had to leave everything — the basketball team, her friends, the elementary school she was going to, because I sent her to live with my mother while I dealt with the allegations against me.

“I dealt with a lot of depression,” he continued. “My peers and people who I respected thinking they knew what was going on, looking down their nose at me, wondering if I was guilty or not … I was sad about the time I could have spent with my daughter that I will never get back. I missed her fifth-grade graduation because of that, sporting games, holidays, a whole year I could have been coaching but I had to step down and away from the kids who looked up to me and parents who respected me … My reputation took a huge hit … They slandered my name, tried to hurt my reputation, got me on false prosecution and basically tried to destroy mine, my family’s and my daughter’s life. What they did to me was a crime.”

The dismissal

When the charge was filed, McCracken immediately hired attorneys Rusty McLean and Jeff Jones. Through pretrial hearings, the defense team fought for and won the release of complete DSS files in Macon, Haywood and Buncombe counties. Red flags began to emerge.

“As the case progressed, (McCracken’s) attorneys filed motions for DSS records, which is not abnormal,” said Welch. “What drew my attention to it was that about four DSS lawyers showed up objecting to the motion for the release of records. That was strange. Of course we weren’t going to object because I want everything. I want to see all the history and know about everything going on. For one, I want to make sure the person needs to be prosecuted. And two, I need to know it’s true. So DSS records can be pretty important. The judge ordered the records be turned over and in the next month, we received thousands of pages, which again is odd and that concerned me.”

Welch set aside one week to comb through nearly 3,000 pages of DSS records.

“I had to read through them three times because I wanted to make sure that what I was reading, I was reading correctly,” she said.

Welch then confronted the alleged victim who eventually recanted the allegation against McCracken. The charge was immediately dismissed, an addendum attached declaring McCracken innocent.“There’s a big difference between being found not guilty and being found innocent. A big difference,” Welch said. “Being found not guilty could mean several things. It could mean there’s not enough evidence to prove beyond reasonable doubt. … But this wasn’t a case where we didn’t have enough evidence. It was a case where (the crime) didn’t happen. … We were fooled. That’s probably the worst feeling I’ve ever had as a prosecutor. As important as it is to protect the public against people who commit crimes against children, it is equally as important to make sure we are not accusing people of committing these crimes who haven’t done it. That’s a really hard thing as a prosecutor, especially with cases like this … when the stakes for that person are so high and I’m asking a jury to send that person to prison for a long time.”

If the alleged victim had not recanted, Welch said she would have dismissed the charge anyway, “because I didn’t believe her. The language in the dismissal is pretty strong, but I wanted to be clear. He should not be branded in this way for something he didn’t do.”

Lasting repercussions

Despite the victim recanting her statement and court records that declare McCracken innocent, his life will likely continue to suffer lasting repercussions nonetheless.

There will always be people who by the mere allegation alone, will wonder if it was true, said McLean.

“The sad part of this is the lasting effect it will have on Pete,” McLean said. “Sometimes all it takes is an allegation to damage one’s reputation beyond repair. … Fortunately, we were able to find documentation through DSS records that discredited the statements of the alleged victim. Then, we had the opportunity to hire an expert who trains NCSBI lie detector operators and had him administer a polygraph that supported McCracken’s claim that he did nothing improper. But most people don’t have the money or homes to pledge to fight this type of allegation.”

In those cases, when an accused individual can’t afford to hire legal representation, “you pray that your court-appointed attorney does their job and pray you have a district attorney who will look into it,” said Welch. “In our district, nobody wants to prosecute an innocent person. … And we’re lucky that our elected DA, Mike Bonfoey, is the type of person who, when I told him my concerns, he trusted me. Often in that case, when there are conflicting arguments, one might say you should try the case and leave it up to a jury to determine because that’s the easy thing to do. But (Bonfoey) immediately said to me if you feel that way, you dismiss it … it was not the easy thing to do, but it was the right thing to do.”

Not only was McCracken’s life greatly affected, however, false allegations do an injustice to all similar cases, Welch pointed out.

“When people are falsely accused of rape, it makes it harder on others who it did happen to,” said Welch. “I explained to (the alleged victim) that she not only affected Mr. McCracken’s life, she affected every other similar case because she gave credence to the defense argument that children make this stuff up … it affects every other case, when all we have is a child who said someone did this to me. That is inherently wrong.”

It doesn’t happen often, she continued.

“A lot of times you don’t see this kind of evidence coming to light, and we decide it’s easiest to leave it up to a jury to determine. But I couldn’t do that in this case,” said Welch, later adding, “A lot of people think prosecutors have a duty to convict. That’s not our duty. When we take oath, we take an oath to serve justice. In this case, justice was not prosecuting this man … it was dismissing the case because this man was innocent.”

McCracken, of course, is grateful and said he owes his life — at least the next 16 years of it — to those who were willing to believe him.

“My parents taught me to always tell the truth, that when you do it will pay off. If I had lied to anyone one time, I’d have been in jail. But in the end, when the truth came out, it all paid off,” he said. “I’m thankful to my family for standing behind me, all my friends who truly believed in me and are true friends, who never doubted me. They know who they are. And I’d like to thank both of my attorneys for protecting my rights and having my utmost respect, and my private investigator team. I bled money for a year, crazy money. And I’d like to thank District Attorney Mike Bonfoey’s office and the court system for being willing to find the truth.”

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