New Snag in McMartin Case : Parents Won’t Let Child Testify, Even Over TV

After prosecutors in the McMartin Pre-School molestation case waged and won a 2 1/2-month battle to enable a 6-year-old girl--and four other children--to testify by closed-circuit television, the child’s parents said Wednesday that they will not allow her to take the witness stand under any conditions.

“The child’s father indicated in a conversation last night that he can no longer in good conscience allow her to be a witness,” Deputy Dist. Atty. Lael Rubin explained to the court and to reporters.

“The family has gone through a lot of anguish and soul-searching since they agreed (to permit her testimony) last May. They have moved out of Manhattan Beach, they are attempting to establish a new life, school has just started. They felt they could withstand the ordeal if she testified during the summer . . . but they feel it would be detrimental to their child to pull her out of her new school situation--where nobody knows about McMartin--and have her testify.”

Rubin then moved to dismiss two counts against defendant Raymond Buckey, 27, and two against his mother, Peggy Buckey, 58, involving the child. Municipal Judge Aviva K. Bobb, who has already dismissed two-thirds of the original charges, said she would wait until the conclusion of the preliminary hearing to dismiss further charges.

That leaves four prospective witnesses in the shriveled case, which began with 41 alleged victims slated to testify against school owner Virginia McMartin and six teachers, including her daughter and two grandchildren. Only 13 children testified, and prosecutors then sought to have five others testify by closed-circuit television. After the 6-year-old dropped out Wednesday, another parent said his son will not testify under any conditions, and two parents said they would withdraw their children if the children’s psychotherapy records must be made public.

The yearlong hearing was halted in mid-June while both sides argued and appealed the issue of closed-circuit television to the California Supreme Court. Last Thursday, the high court announced that it had decided to let stand a Superior Court ruling that ordered Bobb to consider the use of the closed-circuit arrangement for the remaining five child witnesses.

(Bobb had said that while she believes that having a child’s testimony televised from a separate room is constitutional, it could not be applied to the present case because both the alleged crimes and the preliminary hearing itself began before the statute was enacted).

The hearing had resumed Tuesday, with testimony from the 6-year-old girl’s therapist, Jane McCord of the Richstone Family Center in Hawthorne, about why the child should not testify in the presence of the defendants. Her testimony was interrupted, however, by the disclosure that she is not a licensed psychologist, and therefore cannot qualify as an expert witness or invoke the doctor-patient privilege of confidentiality. Bobb said she still will allow her to testify but would give less weight to what she has to say.

In court Wednesday, the child’s father refused to comment on his decision to withdraw her from the case after the judge refused to hear his reasons. “I’m sure he’s a lovely person,” said an exasperated Bobb, “but he doesn’t have standing in this courtroom.” She ordered prosecutors to present their next witness.

Prosecutors said they could not be ready before Friday because of the unexpected development. At that time, a psychologist and her attorney will attempt to avoid turning over to the defense the psychotherapy records of the next scheduled child witness, an 8-year-old girl. Before any child can qualify to testify by closed-circuit television, prosecutors must show that he or she has received great bodily injury or threats of such injury, that a firearm was used, or that the defense is behaving in a disruptive manner.

Defense attorneys charged that the prosecution is stalling, that it is “misusing judicial time and our time,” and that there are no more witnesses willing to testify. Rubin contends that all four remaining children will testify.

However, the mother of the 8-year-old girl did not know that her child was still on the list until a Times reporter informed her. She said there is “no way” she will permit her child to testify if her therapy records must be made public.

The father of another child expected to testify told The Times on Wednesday that he changed his mind after his older child testified for eight days under “intolerable” conditions. Even closed-circuit television would not help, he said, “because the judge is totally inept in controlling the badgering and harassment that goes on during cross-examination.” He said two therapists had recommended that his younger child not testify.

Another child’s mother reached by The Times said she still plans to allow her child to testify but that she would balk if the child’s psychotherapy records must be surrendered to the defense.

The parents of the remaining child witness could not be reached late Wednesday.