BENTONVILLE -- A circuit judge ordered the rape case against a former West Siloam Springs, Okla., police officer to be removed from his docket after prosecutors failed to file a charge.
Cody Kackley, 35, of Colcord, Okla., was arrested in February in connection with rape. He was released from the Benton County Jail after posting a $5,000 bond.
Kackley was in court Tuesday for his arraignment, but a formal charge had not yet been filed against him.
Seth Segovia, deputy prosecutor, said he had been in contact with the accuser and Kackley's attorney. Segovia said prosecutors have not made a decision about filing a charge in the case.
Judge Brad Karren ordered the case be removed from his docket instead of setting another arraignment date for Kackley.
Kackley previously had appeared in court for his arraignment on March 27 and May 9.
Benton County Prosecuting Attorney Nathan Smith said the law gives him a clear duty to pursue charges when there is evidence of a crime and a clear duty not to pursue charges when evidence is insufficient to prove a crime.
"During the course of our investigation it became clear that there was reason to believe that this sexual encounter may have been consensual," Smith said. "Since I chose not to pursue charges in the case, I agree with the judge's decision to remove it from the criminal docket."
Smith said the case can't technically be dismissed because it was never filed.
A woman told police she and her friend went to the Cherokee Casino in West Siloam Springs the night of Feb. 11, hung out and drank four to 10 beers, according to the probable cause affidavit.
The woman and her friend walked outside to wait for a ride when West Siloam Springs police officers arrived, the affidavit states. She said police told her she was being accused of an incident in the casino, and she was placed in handcuffs and put into the back of a patrol vehicle, the affidavit states.
While she was in the vehicle, one of the officers, later identified as Kackley, talked to her, the affidavit states. The woman said she was told she was free to go and her handcuffs were removed, the affidavit states. The woman said she felt safe enough to ask Kackley for a ride home.
She said Kackley drove her home and the two flirted with each other; she added Kackley told her he was turning off his body camera, the affidavit states. Upon arriving at the woman's home, Kackley walked her to her front door, the affidavit states.
Kackley followed the woman inside and she removed her shirt and agreed to perform oral sex on Kackley, the affidavit states. The act continued until the woman's brother walked in, the affidavit states.
Kackley told police he was sent to the casino for a possible crime and corroborated the woman was handcuffed and placed in the back of a police vehicle and eventually released. Kackley said he didn't administer a field sobriety test, the affidavit states.
Kackley told police he gave the woman a ride to her home in Arkansas; once there, he said he did go in her house and the woman hugged him and they kissed, the affidavit states.
Kackley said the woman was very intoxicated during the time he was with her. Kackley also said he "messed up" and had disgraced the badge, which was why he resigned from the Police Department, the affidavit states.
Karren said if prosecutors file a charge against Kackley, they will have to notify him.