Judge Questions the Credibility of Latest Witness in McMartin Case

An 8-year-old girl who appeared to be the most frightened and shy of the child witnesses who have testified in the McMartin Pre-School preliminary hearing on Friday completed six days of testimony in which she reaffirmed her allegations that the chief defendant raped her during a nap at the school.

However, Municipal Judge Aviva K. Bobb said she had questions about the credibility of the girl’s testimony.

The child is the seventh to testify in the preliminary hearing for seven former teachers accused of 208 counts of molestation and conspiracy involving 41 children at the now-closed Manhattan Beach nursery school.

The judge’s comments about the child’s testimony came as she denied a motion by defense attorney Barbara Aichele to strike the testimony on grounds of incompetence--that the child did not know the difference between the truth and a lie.

Question of Credibility

“I truly believe that she knows the difference between telling the truth and not telling the truth,” Bobb ruled. “There (were) clearly problems with this witness’s testimony . . . but (they) relate to credibility, not the competency.” However, she did agree to consider a motion by defense attorney Dean Gits to strike the girl’s testimony because she was not a credible witness.

Although the judge often has been asked to rule on similar motions during the eight-month hearing, this was the first time she had seriously considered such action. Bobb indicated that she would not rule on Gits’ motion until the end of the hearing, which is expected to continue for several more months.

The girl, who sat stiffly throughout her more than 12 hours on the witness stand, testified that she was forced to play a game called “doctor,” in which Raymond Buckey, 26, raped her and then threatened to kill her if she told her parents about the incident.

On several occasions after being asked a question, the child would sit and look at the floor and not reply. Her long silences--some lasting more than three minutes--were broken only when she was prompted to answer by the judge. And when she did answer, the one-word replies came out in almost inaudible whispers.

Outside the courtroom, Lael Rubin, the chief prosecutor, said the child was “extremely nervous” because she was “afraid” of Raymond Buckey, who was sitting in the courtroom only yards from her. The defense said that the child was just shy and was taking time to contemplate her answers.

The motions to strike her testimony on grounds of incompetency and incredulity were a result of answers given by the child during cross-examination. During a lengthy exchange, defense attorney Gits asked her why several statements she made a year ago to the grand jury contradicted her testimony in court this week.

“You told the grand jury that Ray didn’t take any pictures during the game of ‘naked movie star.’ Were you telling the truth?” Gits asked.

“Yes.”

“Were you telling the truth when you told us in court that he did take pictures during ‘naked movie star?’ ”

“Yes.”

Rubin said the child had trouble with those questions and similar ones because they were “abstract concepts” and because the child did not remember what she told the grand jury. “How can you explain something you don’t remember?” Rubin said in an interview outside the courtroom.

Judge Agrees

The defense also asked the judge to waive the patient-psychotherapist privilege of confidentiality for this witness because the child’s parents had filed a civil suit alleging emotional distress. Since the mental state of the child would be the issue in that case, there could be no confidentiality, the defense argued.

The judge agreed, opening up the possibility that the defense could ask detailed questions and obtain records about the therapy sessions if they were relevant to the hearing. However, the judge added, the waiver could be denied if attorneys for the parents could prove that there was no relationship between the issues in the civil suit and those in the criminal proceedings.

Rubin, noting that she might appeal the decision, said the ruling could have a “devastating effect” on the prosecution’s case. She said many of the families of children testifying in the preliminary hearing have filed civil suits. She said that they might refuse to have their children testify if the contents of the therapy sessions were made public.

She said she did not know how many families of the 41 witnesses had filed such civil suits.

A 9-year-old boy is expected to take the stand when the hearing resumes Monday. The proceeding is being held to determine if the defendants should stand trial in Superior Court.

Also charged are the preschool’s owner, Virginia McMartin, 77; Peggy McMartin Buckey, 58; Peggy Ann Buckey, 29; Babette Spitler, 37; Betty Raidor, 65, and Mary Ann Jackson, 57.