A Damning Indictment--of D.A.’s Office

It wasn’t just that jurors acquitted former Santa Ana schoolteacher Jerry Wilhoit of molesting four young girls. It’s that they did it with such speed and certainty that the verdict cries out to prosecutors to figure out how they blew it so badly.

And if the D.A. wants to apply some compassionate conservatism, he should ask what such miscalculations mean to the Jerry Wilhoits of the world.

No one expects prosecutors to bat 1.000. No one insists on a conviction to justify going to trial. No one wants a district attorney who’s soft on molestation cases.

But to misread things this completely raises serious questions. How can the D.A.’s office be so far afield in labeling someone a child molester? Is it that out of touch with the thoughts of 12 citizens sitting on a jury?

Forget a conviction. Prosecutors didn’t even get a hung jury. They didn’t even get a jury that wrangled.

“In the end,” jury foreman Christopher Barr wrote to me last week after the trial, “there was not a single doubt in that jury room that this was a case that should not have been brought to trial.”

That’s a damning indictment for several reasons.

For starters, the charges--some of the worst kind you can have against your name--hung over Wilhoit, now 37, for 18 months. If teachers and his church hadn’t come through, it would have cost him about $50,000 to defend himself. Throw in his 3 1/2 weeks in jail when arrested, complete with the beating he says he got from other inmates who learned he was accused of molestation.

What bothers me, I tell jury foreman Barr, is that the prosecutors missed the mark so badly. “Me too,” he says. “There’s got to be a way to draw the line somewhere else. A little farther south from where it is presently.”

I ask Barr, a 48-year-old father of three from Anaheim Hills, if technicalities ruled the verdict. That is, if jurors thought Wilhoit committed criminal acts but that it wasn’t proven because the witnesses were elementary schoolchildren.

No, Barr says. “There wasn’t any hesitation in any juror that there was not only no crime, but no intent. We discounted a couple of them [the children], because they were inconsistent. The other children we took seriously and believed what they said. The problem was what they said he did wasn’t a crime. At least, we found it hard to stretch the definition to get there.”

The most serious charge against Wilhoit--that he put his hand inside a girl’s pants--was never testified to by the girl or told to subsequent interviewers, Barr says. Instead, it came from the school principal, who said the girl told it to her.

Wilhoit, who was fired after the allegations surfaced and who now has a music ministry in his Westminster church, admits to being physically demonstrative with youngsters. In hindsight, he says, he could have used better judgment. “I took for granted everyone receives affection well. Maybe I was arrogant and thought I could be some kind of crusader that could go in and change the world and make it better for these kids.”

I spoke at some length late Friday to Rick King, the assistant district attorney who oversees the sexual assault unit. He’s a veteran prosecutor with experience in both homicide and sexual-assault cases.

“We’re going to learn from this experience,” King says, “as we do on all our acquittals. But it does not change what the decision-making process is, and that is these children were indicating this is what occurred and the defendant was denying it, and now what do we do?”

Wilhoit conceded on the witness stand, King says, that some of the allegations represented illegal conduct.

“So, then it got down to what most jury trials get down to,” King says. “What is the believable version? And I don’t care if it’s a murder case or a traffic infraction, that’s where most trials get to. The complexity of these particular cases is that the historians that we’re bringing into court to tell what happened happen to be children that are subject to many of the frailties many adults don’t have, such as the ability to recollect events in a precise and persuasive manner.”

If the Wilhoit case hadn’t been filed, King says, it would be tantamount to concluding the children made up the incidents.

Having said that, King acknowledges molestation cases are “very difficult” and says prosecutors proceed only if they see a reasonable probability of a conviction.

That brings us to Barr’s amazement that the case ever went to trial. If I were district attorney, I’d ask why average citizens (Barr says the jury “reflected every corner of Orange County’s society”) have such a different view than mine of common sense and fair play.

I won’t call the D.A.’s decision to prosecute Wilhoit prosecutorial stupidity or callousness.

How about prosecutorial impunity?

The D.A.’s office knows that even if it miscalculates badly, as it did here, it simply moves on to the next case.

Unlike Jerry Wilhoit, it doesn’t have to figure out how to pick up the tattered pieces of an interrupted life.