All McMartin Counts Stand, Judge Rules

A Los Angeles Municipal Court judge refused Friday to throw out more than half of the 208 child-molestation and conspiracy counts against the seven defendants in the McMartin Pre-School case.

Defense attorneys had asked Judge Aviva K. Bobb to drop the charges on grounds that the statute of limitations on the alleged crimes had expired. The defense had argued that a new section of the California Penal Code, which took effect in January, shortened the statute of limitations for acts of child molestation committed before 1982 from six years to three.

However, Bobb ruled in favor of the prosecution, which argued that the state Legislature inadvertently shortened the statute and did not intend to decriminalize child molestation.

“Nowhere is there any indication to decrease the statute of limitations,” the judge said, citing several state legislative policy papers.

Defense attorneys in the McMartin case said they may appeal the decision.

The inadvertent shortening of the statute of limitations grew out of the Legislature’s effort to standardize sections of the Penal Code last year.

The apparent error came to light several weeks ago when Los Angeles Municipal Judge Edward L. Davenport dismissed a case against a 27-year-old man charged with molesting his 10-year-old sister-in-law five years ago. In that case, the man’s attorney argued that under the new law, the statute of limitations is three years, not six, and the judge agreed.

An emergency measure to clarify the Legislature’s intent in making the revisions was introduced last month.

In light of Bobb’s ruling, defense attorneys said that there are two options for appeal open to them. They could file a petition for a writ of prohibition now with an appellate court. However, the lower courts have tended to dismiss such requests in the preliminary hearing phase, the attorneys said.

Another option is to wait until the preliminary hearing ends. (The hearing is being held to determine if the seven defendants should stand trial.) If they are required to stand trial in Superior Court, then motions to overturn the decision could be made at that level.

Attorneys for defendants Peggy Ann Buckey, 29, and school founder Virginia McMartin, 77, said they will wait until the preliminary hearing is over before filing a motion to overturn the decision. Attorneys for Peggy McMartin Buckey, 58, Babette Spitler, 37, Mary Ann Jackson, 57, and Raymond Buckey, 26, said they had not decided what action to take. The attorney for Betty Raidor, 65, was not available for comment.

The confusion regarding the statute of limitations centered on the relationship between that statute and the maximum sentencing sections of the Penal Code, both of which have been changed several times during the period covered by the McMartin case.

Code Reworded

Penal Code Sections 800 and 801 were reworded last year to provide that felonies carrying maximum sentences of less than eight years must be prosecuted within three years, while those carrying sentences of eight or more years have a six-year time limit. The maximum sentence for child molestation has been increased several items during the last few years, most recently in 1982, when it was changed from seven years to eight. It was the overlapping changes that created the dilemma.

In the McMartin case, the defense argued that only charges listed in the 115-count indictment handed down in March, 1984, can span the previous six years to mid-1978.

Many of the counts in the case were added later, including allegations before 1982. If the judge had decided to throw the counts out, those left would be the more recent allegations and would depend on testimony of the youngest of the alleged child victims.

“We are delighted with the outcome,” said prosecutor Lael Rubin. “It was appropriate considering the legislative history.”

After the ruling, an 8-year-old girl testified that Raymond Buckey raped her during a nap period at the school, which she attended from February, 1979, to July, 1981.