New D.A. Team May Take Over McMartin Case

The Los Angeles County district attorney’s office is considering replacing the three prosecutors handling the McMartin Pre-School preliminary hearing should the molestation case go to trial, according to Dist. Atty. Ira Reiner’s top assistant.

“I’m not sure we would keep any of them on for purpose of trial. We may have someone else handle it,” Chief Deputy Dist. Atty. Gil Garcetti told The Times on Friday.

Although prosecutors are seldom switched in the middle of long, complex cases, Garcetti said such a move is “not out of the ordinary.” He declined to comment specifically on why a new prosecutor might be assigned to the case, saying only that “sometimes what is best for the case may not be the best thing for a particular prosecutor.”

His comments, however, were made in the wake of reports that the three prosecutors, Deputy Dist. Attys. Lael Rubin, Glenn Stevens and Christine Johnston, have had a falling out and cannot agree on whether and how the case should be prosecuted.

The prosecution’s handling of the case also has been criticized privately by some lawyers in the district attorney’s office and by some parents of the alleged victims.

Dissent within the prosecution team surfaced several months ago. Soon after Reiner took office last December, he and his staff began re-evaluating the complex prosecution of nursery school founder Virginia McMartin and six former teachers at her Manhattan Beach preschool that had begun almost a year earlier under then-Dist. Atty. Robert H. Philibosian.

At a key planning meeting of senior staff members, prosecutors, investigators and others in March, Rubin reportedly argued for proceeding against all seven defendants, while her co-prosecutors took the position that charges against five of the seven defendants should be dropped or that the case should be re-evaluated at the conclusion of the preliminary hearing, which is in its 15th month.

Since then, a member of the prosecution team has told several reporters not only that two of the three attorneys no longer believe that all seven defendants should be prosecuted but that one prosecutor has come to believe that four defendants may be innocent.

The four who the prosecutor believes may be innocent are Virginia McMartin, 78; Mary Ann Jackson, 57; Babette Spitler, 37, and Peggy Ann Buckey, 28.

The other defendants are Raymond Buckey, 27; his mother, Peggy McMartin Buckey, 58, and Betty Raidor, 65.

The seven are accused of molesting and conspiracy to molest 14 pupils left in their care at the school between 1978 and 1984. All have pleaded not guilty to the charges.

The prosecutor with the gravest doubts about the case is said to be planning to recommend directly to Reiner that charges against at least four defendants be dismissed and to ask to be taken off the case if it goes to trial.

Garcetti told The Times that he is unaware of any such beliefs on the part of a prosecutor.

He said no team member has expressed doubts about the case’s strength to him. “And according to our canon of ethics, if an attorney doesn’t believe the person he is prosecuting is guilty, that attorney is obligated to come in and ask to be removed from the case. No one (in the McMartin Case) has done that. . . .

“We have a higher duty than to blindly seek a conviction. If a prosecutor feels the evidence is woefully inadequate to establish guilt or that the person is actually innocent, hopefully he or she will gather sufficient courage--it’s not a sign of weakness--to come to me. I may disagree and 99% of the office may disagree, but the prosecutor shouldn’t be stigmatized.”

Garcetti said there was much debate at the March meeting and added, “I take the position of devil’s advocate” at such conferences.

‘Unanimity’ About Action

“At the end there was a unanimity as to our course of action,” he said, although it was agreed that additional investigation was still necessary.

Rubin, Stevens and Johnston last week declined to discuss their positions with The Times.

Sources familiar with the McMartin prosecution said uneasiness and doubts about the case within the district attorney’s office arose when prosecutors began viewing the videotapes of “disclosure” interviews with children conducted by unlicensed therapists at Children’s Institute International, a Los Angeles child-abuse diagnosis and treatment center.

“For a long time I believed that all seven of them were animals and should be thrown to the wolves,” one of the prosecutors, insisting on anonymity, said earlier. “Then I began to study the evidence.”

The prosecutor said the team had worked feverishly to prepare its case, after charges had been filed and the accused had demanded their right to a speedy preliminary hearing. The team had not viewed the tapes or interviewed all the children but instead had relied on information from the therapists.

Pressure from the community and the public--and some said, from Philibosian, who was running for reelection--had forced the district attorney to send a hurriedly prepared case to the grand jury. In March, 1984, the grand jury handed down a 115-count indictment naming seven teachers and 18 alleged child victims. Two months later the district attorney’s office filed a 208-count complaint naming 42 children as complaining witnesses.

New Hearing Witnesses

(All the children who testified before the grand jury had been interviewed by investigators and prosecutors, according to prosecutors originally handling the case. Most of them were not among the 14 children who eventually testified at the preliminary hearing.)

The tapes showed highly suggestive interviewing techniques in which therapists led their subjects into saying they had been touched or forced to play sex games, then rewarded them for confiding “yucky secrets.”

“Kee MacFarlane (the chief therapist) could make a 6-month-old baby ‘say’ he was molested,” the prosecutor said. “But she knows as much about police interviews as I know about plastic surgery. . . .” (Several attempts to reach MacFarlane were unsuccessful.)

“We heard stuff in court we’d never heard before--the kids were rewarded for telling things and they started embellishing. Then they couldn’t back down or they’d be thought liars. Now most of them have come to believe it and will go through life believing that that stuff happened to them.

“I believe in the medical evidence and that some were molested. But the case was improperly investigated from the start. It should have been done with a few victims interviewed by police.”

Complaints from several people in Reiner’s office about the handling of the case in the beginning is viewed by some observers as an attempt to blame the Philibosian administration should the government fail to get convictions on the seven.

Continual Evaluation

Garcetti said, however, that the district attorney’s office takes full responsibility for continuing to prosecute the case.

“We re-evaluate it continually and if at any time I felt I could not ethically proceed, I’d have told that to the district attorney” and recommended dismissal, he said. “We have no intention of scuttling this case in whole or in part.”

In a meeting requested by McMartin parents last week, he stressed that the district attorney would continue to “move forward aggressively” on the case.

“But there is a difference between anticipated and actual testimony,” he said, “and there will be an obviously critical evaluation” when the preliminary hearing ends.

At that time Reiner and Garcetti will decide which, if any, of the defendants should go to trial if they have been held to answer by Municipal Judge Aviva K. Bobb. They must also decide whether to file an appeal if she does not order them to stand trial.

The preliminary hearing had been expected to end last week, as the 14th and final child witness completed eight days of testimony, most of it cross-examination.

Three of the seven defense attorneys announced, however, that they have decided to present an “affirmative defense” that they estimate would prolong the proceedings by six weeks to nine months.