Commentary: Can the Jury Convict on the Word of a Four-Year-Old?

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The lengthy trial closed on Monday in San Francisco, and both sides agreed on basically one thing – the verdict comes down to whether the jury decides to believe the word of a four-year-old potential victim and whether reports of her sexualization are due to things experienced or other factors.

“How many more people does (the girl) have to tell?” Deputy DA Brooke Jenkins asked as she opened her nearly three-hour initial closing argument. “What does it take to believe her?”

She went on to point out that the child told six different people but she had to explain away a number of denials, including most recently on the stand.

Ms. Jinkins pointed to a number of fairly disturbing incidents where the young girl acted out in an overly sexualized manner on a bunny, an incident where she molded playdough into male genitalia, an incident in which she straddled another male, and her language which used overly sexualized language.

“What has (she) been wrong about?” the Deputy DA asked the jurors. “There is nothing that points to (the girl) not being believable.”

For her part, Jenkins argued if these allegations were untrue, there had to be an explanation about her graphic sexual knowledge, and she argued the only way the girl would have known these “sensations” and concepts were if they “happened to her.” And Jenkins also said we had to understand the girl’s motivation to report.

While the deputy DA painted a compelling picture here, there are pieces of this that remain unknown. That is the scary part here.

Deputy Public Defender Eric Quandt likened the case to a bridge – “Are you going to build a bridge on (the girl’s) statements? That’s the test.”

Really, this case does come down to the child’s believability. There is no physical evidence. The DNA tests are negative. There is no sign of injury. The DDA skillfully played down those omissions with suppositions and speculation. But that is not evidence, that is not proof beyond a reasonable doubt.

We have Antonio Carter-Bibbs’ lack of criminal history. The character witnesses, including a teen girl. The absence of evidence on his phone.

In addition, Mr. Quandt again argued that Mr. Carter-Bibbs didn’t act guilty – he cooperated with the police, waived his Miranda rights, took a lie detector test, submitted to DNA.

Throughout the two-week-long-plus trial, the prosecution’s case looked weak. The inconsistencies, the poor work by CPS, the misidentification of the defendant, all painted a picture of a prosecution case held together on thin strands. But the strong performance by Ms. Jenkins on Monday morning changed that.

Now we are left with a rather troubling question – is it possible that the little girl is telling the truth? Yes, but there are problems. The jury, for example, never got to see the little girl questioned twice in competency hearings mistaking truthful statements for untruthful ones and outright lies.

Judge Conroy pronounced her competent to testify – but said it was a close call and that she was barely competent.

The stakes here are high, as Defense Attorney Eric Quandt reminded the jury. Unlike, for example, the Central Park Five, there will be no DNA to exonerate Antonio Carter-Bibbs at the 13th hour. They have to get it right the first time and that is exactly the problem in this case – it is not clear what right is.

Watching Mr. Carter-Bibbs and the co-defendant, the girl’s mother, Patricia Kenard, they seem believable enough. They have their own troubles and problems in their lives, but there is no real evidence other than the girl’s testimony to suggest that Mr. Carter-Bibbs is capable of this.

We have videos of some of the interviews with the girl – they seem reasonable. She makes clear accusations. But then on the stand, she backed down with them. The prosecution argued that she was scared and pointed out she kept looking at Mr. Carter-Bibbs. The defense argued that she knew nothing had happened and was backing off when she confronted the people who were her parents for the first time since January.

Both explanations seem plausible. We just don’t know. That’s the problem. It is possible that a child molester could be acquitted, and perhaps equally possible that an innocent man gets wrongly convicted.

Looking at the case this way, the analogy that Public Defender Eric Quandt drew to the Central Park Five seemed very appropriate.

He called this a crisis. He said, “There are two innocent people in this courtroom.” He called this an “abuse of power.”

Mr. Quandt during his closing likened this to the famous case from 1989. He talked about watching the Netflix mini-series over the weekend and the fact that the prosecution pulled out all the stops in an effort to convict those five defendants.

The facts of the 2019 case compared to the 1989 case are clearly different but the 2019 case is scary. The problem is that we know from cases like the McMartin case that memories can be planted and contaminated.

The deputy DA did not help herself with some of the sarcasm and her exaggerating the claims of the defense. The defense did not claim for the most part that either the girl or the family were lying or fabricating the charges – rather that her memories became contaminated, that ideas were inadvertently implanted.

The DDA tried to show to video evidence of the professional interviews and, while the defense poked some holes in them, for the most part, they held up. On the other hand, we don’t know what we don’t know. We don’t know about the original conversation between the grandmother and the girl and whether she took something that the little girl said to her and accidentally filled in the gaps.

This is scary because this case is a close call and it is possible that an innocent man will go to prison or a guilty man will unpunished if the jury gets it wrong.

Meanwhile, faced with the specter of the Central Park 5, Brooke Jenkins pushed back using the race card.

“I warned you about the level of desperation,” she warned. The Central Park 5, she said, “It’s nothing like this case.” Then she dropped the card reciting the names of the five and stating, “Those names resonate with me because they happen to look like me.”

Why that statement was important is unclear. She is correct that there are clear differences in the two cases – the police coerced confessions from five youths, the victim of the horrific attack had no memory of the attack, then the DNA ended up exonerating the men and leading to the actual culprit to confess.

But there are similarities as well, and the lack of DNA here actually makes this case scarier, because, as Eric Quandt put it, there will be no second chance here and no DNA exoneration. This case hinges completely on the testimony of a five-year-old girl who was four at the time that this incident might have occurred, and it hinges completely on the assessment of the jury as to whether her sexual knowledge was based on experience or memory contamination.

On this exchange I give it to Eric Quandt – the specter of the Central Park 5 is that of wrongful convictions based on flawed investigations. That rings a lot closer than the prosecutor’s careless and pointless playing of the race card.

I think both sides did well in the closing – a tie should go for the defense, but a jury faced with a potential four-year-old victim of child molestation may not be willing to give the defense their entitlement to proof beyond a reasonable doubt.

There is plenty of doubt in this case, and most of it is very reasonable. Will that be enough?

—David M. Greenwald reporting


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About The Author

David Greenwald is the founder, editor, and executive director of the Davis Vanguard. He founded the Vanguard in 2006. David Greenwald moved to Davis in 1996 to attend Graduate School at UC Davis in Political Science. He lives in South Davis with his wife Cecilia Escamilla Greenwald and three children.

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