Ban on TV Testimony in McMartin Case Is Upset

A Los Angeles Superior Court judge ruled Friday that remaining child witnesses in the McMartin Pre-School molestation case may testify by closed-circuit television.

The 43-page decision by Judge Paul Turner overturns an earlier ruling by Municipal Judge Aviva K. Bobb, who is conducting the McMartin preliminary hearing. Bobb had refused to allow televised testimony, as now authorized by recent 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 would become final in five days, to allow defense attorneys to file an appeal if they wish, and he ordered Bobb to resume the yearlong hearing on July 22.

Bobb must next determine whether any of the remaining five child witnesses qualify for televised testimony. The law provides that such an arrangement may be used for victims of sex crimes who are under 11 years old if a judge finds that they have been threatened or physically harmed, that a firearm was used or that a defendant or defense attorney has been disruptive.

So, while Turner has ruled that the new law is applicable to the McMartin case, Bobb may or may not find its use necessary.

Defense attorneys predict that the qualification hearings and actual testimony from each child will lengthen the preliminary hearing, which began last August, by another five months.

The McMartin hearing would be the second California case in which children have been allowed to testify against their alleged molesters on closed-circuit television. Its first use came last year during the preliminary hearing for the operator of a private school in Northridge, Campbell Hugh Greenup, who is awaiting trial on molestation charges.

In the McMartin case, the founder of the Manhattan Beach nursery school and six teachers were originally charged with molestation and conspiracy involving 41 children during a six-year period. Two-thirds of the charges have been dismissed. Forty more counts will be dismissed if Bobb disallows closed-circuit testimony, leaving 90 counts for which evidence has been presented.

Prosecutors argued last month before Turner that Bobb erred in ruling out closed-circuit television for the five child witnesses waiting to testify. They said the arrangement, under which the child testifying is not in the same room with the defendants, does not violate the constitutional right to confront one’s accuser but merely removes an element of intimidation.

‘Neither Just Nor Fair’

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

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

“The children who have testified without closed-circuit television have repeatedly testified as to threats by (Raymond) 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.”

Televised testimony is constitutional and does not violate state or federal ex post facto (made after the fact) rules, Turner said, citing numerous U.S. Supreme Court and California Supreme Court decisions.

The right to cross-examination is preserved in closed-circuit television, he said, because the witness still testifies under oath, still submits to questions by the defense and still can be observed by the magistrate who is trying to assess his credibility.

The ex post facto rules do not apply to televised testimony, Turner wrote, because it is a procedure that “merely broadens the kind of evidence which is admissible. . . . It does not make criminal an act which was innocent when done, make more serious an act already criminal when done, inflict greater punishment than that attending the act at the time it was committed or permit a person to be convicted with less evidence than was required when the act was done.”

Undecided on Appeal

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 had not decided whether to appeal the decision now or at the conclusion of the preliminary hearing.

He said an appeal could take “hours or months” and predicted that the closed-circuit testimony would take “probably another five months if history is any guide.” He said the qualification hearing, direct examination and cross-examination would probably take a month for each child.

The mother of one McMartin 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’s somebody’s listening.”

Deputy Dist. Atty. Lael Rubin, one of three prosecutors in the case, hailed Turner’s decision as “a significant victory for parents and for children. . . . There is a recognition that a judicial system can be responsive to children who are victims and at the same time be responsive to the rights of defendants.”

She said the defense’s estimate of a month per child is “much too long,” but added that there is no way of predicting how long the proceedings could drag on.

Appeals Court Ruling

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.

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

However, after the statute was passed, Bobb still refused to allow its use on the ground that such a law could not be applied retroactively.

After presenting evidence from only one-third of the children scheduled to testify, prosecutors said they had run out of witnesses, except for five who were still 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.

Those accused are school founder Virginia McMartin, 77; her daughter, Peggy McMartin Buckey, 58; grandchildren Raymond Buckey, 27, and Peggy Ann Buckey, 29; Betty Raidor, 65; Mary Ann Jackson, 57, and Babette Spitler, 37.