Lake County cop investigation raises questions

Eight months after Lake County authorities learned of allegations that one of their own officers had sex with an underage boy he met online, their investigation has been stymied amid questionable decisions, the Tribune has learned.

Investigators acknowledged they have not taken steps that experts said would be fundamental to such a case — including seeking a warrant to search the officer's personal computers. Prosecutors also have not acted on evidence they have that allegedly shows the former officer misused a state- and federally funded crime database to search for information about the boy.

State's Attorney Mike Nerheim said he doesn't believe he has the evidence needed to get a search warrant for the computers or to file sexual abuse charges against Rick White, a former lieutenant with the sheriff's office.

White specialized in netting online sexual predators in the years before a young man alleged to investigators that he was 15 or 16 when he met the officer on a gay dating site and had multiple sexual encounters, Nerheim and his assistants said.

When asked last week about the alleged misuse of the Law Enforcement Agencies Data System, Nerheim said he was still considering charges.

Prosecutors say they believe they have no evidence of a sex crime involving a minor because the youth told investigators that he informed White he was of age. The officer also told authorities he thought the teen, who attended the same high school as White's daughters, was of age, Nerheim said.

For years, the Lake County state's attorney's office has attracted scrutiny by repeatedly prosecuting the wrong men in major cases, including sex crimes against children. The office has been haunted by accusations of overzealous and inept prosecution in cases that crumbled under the weight of DNA evidence that was disregarded by former State's Attorney Michael Waller. In this case, experts say actions, overseen first by Waller and now by Nerheim, raise questions about authorities' willingness to vigorously investigate one of their own.

Along with not seeking a search warrant, prosecutors chose to handle the investigation themselves rather than seek help from an outside agency. That decision meant prosecutors were investigating a high-ranking officer who had been key to their own efforts to stop sex offenders.

Prosecutors also initially rebuffed information that would have led them to White. During the 2012 prosecution of two pedophiles, one suspect's lawyer approached an assistant state's attorney with information about an unnamed officer in hopes of making a deal for leniency, Nerheim said. The prosecutor spurned the offer and did not get the information. After he was convicted, the man gave investigators the tip anyway and it led to White and the underage teen, prosecutors said.

White, 52, was placed on paid leave in October and retired in December, writing in a letter to the sheriff's office that he wanted to spend more time at his part-time home in Florida. He has not been charged with a crime. The Tribune has sought to discuss the investigation with him, but he has not responded to inquiries from the newspaper. His attorney, Doug Roberts, would not discuss details of the investigation but said White is well-regarded in Lake County's legal and law enforcement community.

"I think everyone who's worked with him wishes him well," Roberts said. "He's a great person."

Legal and investigative experts familiar with online sexual predator cases said they don't understand why authorities would not even try to get the warrant. George Becker, a Chicago lawyer who has defended clients in online sexual predator cases, said that in such a case he would expect authorities to go after the computers.

"It's a little surprising … because probable cause is such a low standard," Becker said. Given the combination of information from a convicted pedophile and a youth who alleged he had sex with the officer after meeting him online, "any number of judges would say that is enough to get a warrant to look at a person's computer, whether he's a police officer or any other individual."

A senior prosecutor who has extensive experience supervising cases in the Chicago area said any doubts about probable cause for a warrant based on a tip from a pedophile should have faded with the statement from the teenage boy. Also, if there is evidence of misuse of the Law Enforcement Agencies database, that would be clear-cut official misconduct, said the prosecutor, who spoke on condition of not being identified.

Overcoming obstacles

Waller said that when he left office Dec. 3, he believed the potential victim's lies about his age were an obstacle the office could not overcome in order to approve charges. However, Waller said he did not know that investigators had not attempted to look at the officer's computers. He said he did not remember his staff raising the issue of a search warrant with him. Investigators would not have needed his input before seeking such a warrant, he said. If they had asked, Waller said, he would have told them to go for it.

But without evidence to prove that White knew — or should have known — that the boy was underage, they could not charge him with a sex crime, Waller said. "That really creates a roadblock to a successful prosecution," he said.

Nerheim stressed that the investigation remains open and defended some decisions in the case, though he noted that the choice not to refer the inquiry to an outside agency was made before he took office.

Nerheim said the initial tip was rejected because the source wanted a deal without giving any information first. Nerheim said he hadn't sought a search warrant for the personal computers because he doubts investigators have met the burden for probable cause.

Assistant State's Attorney Fred Day said investigators believe they have no clear evidence of a criminal act, given that the youth said he led the officer to believe he was of age. And prosecutors have no proof that he used the personal computers to commit a crime, Day said.

"A hunch or common sense or just kind of a process of elimination is not sufficient to get a search warrant," Day said.

DePaul University law professor Len Cavise said the officer's background investigating such crimes, coupled with the youth's statement that he had sex with him when he was underage, constitutes more than a hunch. And he questioned whether prosecutors were hesitant because the suspect was a veteran officer who was once crucial to the county's efforts to bust pedophiles.

"I can't imagine that they didn't ask for a search warrant," said Cavise, who teaches criminal law. "The prosecutors need to be all the more aggressive in their conduct when it's one of their own."

The notion that an adult having sex with a minor is not culpable because the boy told him he was of age should not be an impediment to getting a search warrant, he said. "This 15-year-old kid goes by the name of 'Probable Cause.'"

Conflicting views

The months that have passed may have damaged the investigation if computer evidence existed and has been destroyed, said Jon Berryhill, a California-based computer forensics consultant who is a former investigator with the Air Force. However, the passage of time does not necessarily mean all evidence is gone, he said.

The prosecutor's office did obtain evidence of the officer's online communication with the teen, though investigators found nothing suggesting he knew the boy was underage, said James Magna, a prosecutor's office investigator. The boy bought cigarettes in front of White and removed a class ring that would have given away his age, prosecutors said.

The sheriff's office gave investigators access to White's work computer, prosecutors said, but the search turned up no evidence of sex with minors.

Though he doubted White could be charged, Waller said he believed Sheriff Mark Curran had cause to fire White.

The investigation produced ample "evidence White had engaged in improper conduct while on duty," Waller said. "There's no question about that. Clearly, he should have been fired."

But dysfunction between the prosecutor's office and the sheriff's department seems to have complicated communications between the agencies. Curran said he would have been happy to seek White's firing at the merit commission if the state's attorney's office had recommended it. But Curran said he believed that prosecutors said White should be put on leave during the investigation.

Curran complained that Waller hasn't spoken with him since 2011, when the sheriff called for Waller to fire a top deputy, Michael Mermel, who attracted notoriety by floating alternate explanations for DNA that appeared to exonerate various convicts. Mermel retired shortly thereafter.

Curran noted that White has not been charged with anything and said his agency never had cause to suspect he did anything illegal.

"Satan is real; he knows your weakness, so very little surprises me in today's world," Curran said.

After his retirement, White started drawing a pension that now pays $73,018 yearly, according to the Illinois Municipal Retirement Fund.

Sex crimes specialist

Once called a "pioneer" of Internet sex crime investigation, White started setting up stings against online predators as far back as 1998. He worked closely at times with a prosecutor's office investigator and served a stint with the Lake County Children's Advocacy Center, which is overseen by the state's attorney's office and looks into child sex crimes. The center gave White an award for his service in 2005.

Law enforcement ethicists said there is no clear rule for a prosecutor to follow when deciding whether to hand a case to an outside agency. But they agreed that examining an officer's history with a prosecutor's office is vital to assessing whether that agency can conduct a fair investigation and avoid accusations that he received leniency the general public would not.

A serious charge against an officer can weaken cases built with that officer's help, and so a prosecutor's office seeking to avoid attacks on its cases might see an accusation against an officer "through the lens of innocence," said R. Michael Cassidy, a Boston College law professor who specializes in prosecutorial ethics.

Prosecutor's offices seek help from neutral agencies all the time, and it would be "unusual" for a prosecutor to fail to call in help from another jurisdiction when investigating someone with clear ties to the office, said Scott Burns, executive director of the National District Attorneys Association.

"If you charge the person, some may claim it's because of the scrutiny and the pressure to do something. If you don't do something, it's because it's the good old boys situation," he said. "When, no matter what decision you make, it's going to be scrutinized or criticized, that is a pretty good indicator that you should get an independent prosecutor."

Waller said he didn't see the need to call in another agency to handle the case.

Nerheim said he was "more than satisfied with the way (his personnel) have handled the investigation."

Court records show White was not involved in the case of James Toman and Kenneth Brown, charged in Lake County with making pornographic videos of themselves and an underage boy. At some point between April and September 2012, while Toman was awaiting trial, his lawyer approached prosecutors with information about an unnamed police officer but the defendant wanted leniency in exchange, prosecutors said. The assistant state's attorney rebuffed Toman's offer and didn't learn the details.

She did so, Nerheim and Day said, because Toman planned to keep his information secret until he was promised a deal on a serious felony case in which prosecutors had strong evidence of his guilt.

"We would never make an offer without having the information first," Nerheim said.

Toman eventually pleaded guilty, and then in mid-September, after he had been sentenced, approached prosecutors again. He still wanted to tell authorities what he knew about the officer.

The information suggested a sexual link between the officer and a teen who committed suicide in 2011, prosecutors said. Authorities were unable to confirm a connection between the two, they said, but Toman also led investigators to another young man, a recent graduate of the high school White's daughters had attended.

Prosecutors said the young man consented to be interviewed in October near his college campus out of state. They said he alleged he met the officer online and had a sexual relationship with him involving two encounters when he was underage and one after he reached the age of consent, 17.

The boy told the officer he was in a grade higher than he actually was, prosecutors said. They said the boy also gave a fake name.

"We have to consider what we can prove beyond a reasonable doubt," Nerheim said.

Day added, "The part that makes a crime is the mental state."

When investigators talked to White, he identified the teen by the fake name, prosecutors said. Magna said he determined that White never ran the teen's real name through a law enforcement database but did run the fake name.

Officers who misuse the database can be charged, typically with official misconduct or wire fraud, Nerheim said, and he wrote in an email that he is "keeping those options open."

The prosecutors said that in thinking about whether the officer could have believed the youth was of age, they have considered factors such as his training and experience investigating cases such as the one alleged. They also have had to consider White's access to information about students at the high school.

And Becker, the defense attorney, said such concerns were not typically viewed by law enforcement as a reason to avoid prosecution.

When an alleged victim is between 13 and 17, defendants can argue they had a reasonable belief the person was of age, Becker said. But the defense has to prove that in court.

"That's an affirmative defense. You have to go out and defend that," Becker said.

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