McMartin Judge’s Ban on TV Testimony Overturned : hearing May go On for Months

In a decision expected to lengthen the McMartin Pre-School molestation preliminary hearing by at least five months, a Superior Court judge ruled today that remaining child witnesses may testify by closed-circuit television.

The 43-page decision by Judge Paul Turner overturns an earlier decision by the judge conducting the preliminary hearing. Municipal Judge Aviva K. Bobb had refused to allow televised testimony, as now authorized by state law, because the hearing was already under way and the alleged crimes occurred before the statute’s enactment in May.

Turner said his decision will become final in five days, to allow defense attorneys to file an appeal if they wish, and he set July 22 for Bobb to resume the yearlong hearing.

She must next determine whether the remaining five child witnesses qualify for televised testimony. The law provides that such an arrangement may be used for victims of sex crimes under 10 if they have been threatened, physically harmed, a firearm is involved, or defendants or defense counsel have been disruptive.

Element of Intimidation

Prosecutors had argued that Bobb erred in ruling out closed-circuit television for the only five child witnesses still scheduled to testify. They said the arrangement, whereby the child testifying is not in the same room with the defendants, does not violate the constitutional right to confrontation but merely removes an element of intimidation.

However, defense attorneys contended that television lends “an aura of unreality” to court proceedings and significantly impaired an important right--that of a defendant to confront his accuser in the courtroom.

The founder of the Manhattan Beach nursery school and six teachers were originally charged with conspiring to molest 41 youngsters during a six-year period. Two-thirds of the charges have been dismissed.

After considering oral and written arguments from both sides and parts of the 400 volumes of transcripts accumulated so far in the preliminary hearing, Turner sided with the prosecution:

Buckey’s Threats Cited

“The children who have testified without closed-circuit television have repeatedly testified as to threats by (Ray) Buckey to kill them,” he wrote. “Now Buckey attempts to gain the advantage of those threats. In this country, that is neither just nor fair.”

He said televised testimony is constitutional and does not violate so-called state ex post facto rules.

Defense attorney Bradley Brunon, who represents school founder Virginia McMartin, said Turner’s decision was predictable given “the tenor of the times, (which) does not favor the defendants. Ninety-nine percent of the rulings have been against us.” He said he and the other six defense attorneys have not decided whether to appeal the decision now or at the conclusion of the preliminary hearing.

The mother of one child who was cross-examined for 16 days was present as a court bailiff handed out copies of Turner’s decision. She said she views the ruling as “a steppingstone in terms of children’s rights. It means somebody’s listening.”

Efforts by Parents

Parents of children who attended the school had lobbied hard in Sacramento for passage of the television statute in the belief that it would enable some fearful witnesses to testify.

Bobb had said at the outset that she intended to allow closed-circuit television testimony, but before the first child witness took the stand an appeals court decision in another case noted that no state law specifically authorized the procedure. However, after the statute was passed, Bobb refused to consider its use on the ground that such a law cannot be applied retroactively.

After presenting evidence from only a third of the children slated to testify, prosecutors said they had run out of witnesses, except for five who were willing to testify if they could do so by closed-circuit television.

Bobb then dismissed the remainder of the charges on which there had been no testimony, and the proceedings were halted last month pending Friday’s decision.