Police might have been wrong when they said Lincoln County man was a sex offender

OWENSBORO, Ky. — When Archie M. Whalen of Bristol, Maine, was charged with kidnapping an Owensboro teen and taking her to Wisconsin in 2009, the Daviess County Sheriff’s Department released information that said Whalen was a registered sex offender with a criminal history that included a charge of first-degree rape.

But Whalen’s attorney said Tuesday that Whalen — who was convicted of kidnapping last week in U.S. District Court — does not have a criminal history that includes a conviction for any sexual offense. The U.S. attorney’s office, in its research on Whalen, could only find prior convictions for second-degree assault in New York and unlawful access to a firearm in Maine.

Sheriff’s Department officials and the former chief deputy who released information to the media at the time Whalen was arrested say the information about Whalen’s criminal history would have come from a national criminal database. But officials have no way of checking that history now because they can only look at a person’s criminal past on the database if a new charge is filed against the person.

Whalen was charged with kidnapping a 13-year-old girl from Owensboro on Sept. 26, 2009. Whalen, who knew the girl when she lived briefly in Maine, was convicted of picking up the girl from her home in Owensboro and taking her to Wisconsin.

Whalen was found with the girl in Sturgeon Bay, Wis., on Sept. 27 by police after her disappearance triggered an Amber Alert. A press release distributed by the Daviess County Sheriff’s Department at the time of his arrest said Whalen’s previous criminal history included first-degree rape, burglary and having inappropriate sexual contact with a minor. Department officials also identified Whalen as a convicted sex offender.

Clay Wilkey, who represented Whalen at trial, said there is no information of Whalen ever being convicted of a sexual offense.

“The only research I did was a thorough reading of a report generated by the U.S. Probation Office” on Whalen’s previous criminal history, Wilkey said. There was nothing in the file that indicated Whalen had been convicted of any sexual offenses. Federal prosecutors did not claim Whalen had a history of sexual offenses during last week’s trial, Wilkey said.

“The reason I feel confident that [Whalen] is not a registered sex offender is the U.S. attorney’s office would have made hay of that [during trial] and they didn’t,” Wilkey said. “In the case, if Mr. Whalen had a prior sexual offense, the U.S. attorney would have sought a mandatory minimum of 20 years” in prison.

Stephanie Collins, a public information officer for the U.S. attorney’s office, said the office looked into Whalen’s criminal history and could only find the New York conviction for assault and a federal firearms charge from Maine.

Capt. Bill Thompson, head of investigations for the Daviess County Sheriff’s Department, said the information about Whalen being a convicted sex offender was released by then-Chief Deputy Jeff Jones.

“It looks like Jeff Jones released [that Whalen] was a convicted sex offender in New York,” Thompson said. He said an examination of Whalen’s file in the Sheriff’s Department revealed only the second-degree assault charge out of New York. According to the New York Department of Corrections and Community Supervision website, Whalen was convicted of two counts of second-degree assault and sentenced to seven years in prison in 1999. Whalen was released from prison in 2005.

Information provided by the National Center for Missing and Exploited Children on Whalen only included the assault charges, Thompson said.

The file did not contain any information about Whalen having a criminal history that included first-degree rape, burglary or sexual contact with a minor, Thompson said. Whalen is not on the sex offender registries in New York, Maine or Kentucky.

Wilkey said that Whalen “may have had a burglary in his past” according to his file from the U.S. Probation Office, but the file contained “nothing sexual.”

Jones, who left the Sheriff’s Department shortly before he was elected Daviess County coroner in 2010, said he did not recall where the department’s information on Whalen came from when Whalen was arrested almost three years ago, but the information likely came from the National Crime Information Center — which contains information on criminal histories.

“I hate to be locked into my recollection; that’s where I believe it came from,” Jones said Tuesday. “My recollection is it came from [conducting] a criminal history” on NCIC.

Jones said detectives spoke to people and members of other law enforcement agencies when gathering information about Whalen. When asked if NCIC would include information on whether a person is a sex offender, Jones said, “I think it does, but I’m not positive of that. Each state has different [sex offender registry] laws — and of course you get into federal laws — so I don’t know.”

Thompson and Jones said there was no way to check Whalen’s history on NCIC; law enforcement agencies are required to shred NCIC histories after they do a background check on a person. Further, NCIC can only be checked when a person has a new charge or open case against them, both Jones and Thompson said.

“The regulations of NCIC wouldn’t allow us to run [a report on a person] just because we want to see what it says,” Jones said.

© 2012 the Messenger-Inquirer

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