In a plea bargain approved by his victim, Walter Nix Jr., 43, will get probation after agreeing to a one-year term for the felony and for sexual misconduct, a misdemeanor. He originally was charged with sodomy and assault, for which he could have been sentenced to 20 years in prison.
Bullitt Circuit Judge Tom Waller tentatively accepted the plea pending formal approval of it by victim Louise Ogborn at Nix's sentencing, set for Nov. 2.
It is the first conviction stemming from a strip-search hoax on April 9, 2004, at the McDonald's in Mount Washington where Ogborn worked.
Nix was engaged at the time to the store's assistant manager, Donna Jean Summers, who asked him to come watch Ogborn. A man who phoned the store pretending to be a police officer accused Ogborn of theft and ordered her strip-searched.
According to police and court records, Nix said he thought he was following an officer's orders when he directed Ogborn, who was detained four hours in the restaurant's office, to do exercises in the nude and perform oral sex on him. He also slapped her several times on her buttocks, at the direction of the caller, the records show.
The incident was the focus of a Courier-Journal story Sunday that noted that the strip-search was among at least 70 performed at fast-food restaurants and other businesses from 1995 through 2004 at the direction of a caller who claimed he was investigating crimes. Ogborn agreed to be identified by name in the newspaper.
A private prison guard, David N. Stewart, of Fountain, Fla., was charged in July 2004 with impersonating a police officer and soliciting sodomy in the Mount Washington case. He has pleaded not guilty, and his trial is set for Dec. 13. Summers is charged with unlawful imprisonment, a misdemeanor, and her trial is scheduled for Dec. 7. She also has pleaded not guilty.
Bullitt County Commonwealth's Attorney Mike Mann said in an interview yesterday that he agreed to probation for Nix because he has no prior record and because it would have difficult to persuade all 12 members of a jury to reject Nix's defense -- that he was duped by someone he thought was a law-enforcement officer.
"It would have been hard not to have one juror say, 'I might have gotten that call and done the same thing,' " Mann said.
Still, he said he found it disturbing that anyone would believe that "sodomy is part of a lawful criminal investigation. There had to be a point where he realized that this wasn't right," Mann said of Nix.
Nix didn't explain his plea in the courtroom and left without talking to reporters. His lawyer, Kathleen Schmidt, said he was too nervous for an interview.
Ogborn's co-counsel, William C. Boone Jr., said his client approved the deal because "she wants somebody to say they are sorry and for somebody to say she did nothing wrong," both of which he said Nix has promised to say at sentencing.
"She is tired of McDonald's blaming her for what happened," Boone said.
In a lawsuit, Ogborn has alleged that the company failed to warn employees at the Mount Washington store about prior strip-search hoaxes at other restaurants around the country. McDonald's has said in court papers and through its lawyer that Ogborn was in part responsible because she failed to realize the caller wasn't a real officer.
The company also has said that agents outside its control -- Stewart and Nix -- were at fault.
The company's Louisville lawyer, W.R. "Pat" Patterson Jr., referred questions to spokeswoman Tara McClarin, who in a prepared statement said, "McDonald's regrets these unfortunate incidents and is pleased to know that those who have been criminally charged are being brought to justice."
Nix entered an Alford plea, maintaining his innocence while acknowledging there is enough evidence to convict him.
As part of the plea agreement, Mann agreed to drop an assault charge against Nix and to reduce the sodomy count to sexual misconduct, a misdemeanor punishable by up to 12 months in prison. He also raised the unlawful imprisonment charge to a felony, which carries a sentence of one to five years.
Ogborn, a high school senior who had just turned 18 at the time of the incident, hadn't received a single admonition in her four months at the McDonald's when the man who called himself "Officer Scott" called and said an employee had been accused of stealing a purse.
Summers said later that she picked out Ogborn because the caller's description fit her "to the T." Following the caller's instructions, Summers took Ogborn into the office and had her remove one item of clothing at a time until she was naked.
Although McDonald's said Ogborn could have left at any time, Summers had taken away her clothes, and she was able to only partially cover herself with an apron. The incident continued until a maintenance man who worked at the store questioned it and the caller hung up.
Nix and Summers were among at least 13 people across the United States charged with crimes for executing searches for the caller. Seven have been convicted of various crimes. Stewart so far has only been charged in the Bullitt County incident.
Mount Washington Detective Buddy Stump, who investigated the case, said he had no objection to probation for Nix. "One down, two to go," he said.