Rare Defense to Prolong Abuse Case

Prosecutors in the McMartin Pre-School molestation case finished presenting their evidence three weeks ago, and most California preliminary hearings would have ended there.

But three of the seven defense lawyers have taken the unusual step of presenting what is called an “affirmative defense,” which they estimate will take up to nine months, prolonging the preliminary hearing through the middle of 1986.

Most of it will be at county expense--at an hourly rate of $75 for court time and $40 for preparation--since the majority of the defense attorneys are now court-appointed because their clients claim to be indigent.

An affirmative defense is a rarely used procedure--”about as common as this case itself,” says Deputy Public Defender Forrest Latiner--in which the defense calls its own witnesses and produces its own evidence at the preliminary hearing instead of waiting to do so if and when the case goes to trial.

The defense theory holds that the McMartin case is the product of a confused 2 1/2-year-old child, unqualified interviewers, a hysterical community and misguided prosecutors.

“We’re trying to show the genesis, the progression, the expansion and the absurdity” of the case, Latiner said.

Affirmative defenses are unusual outside California, because in most states, major cases go from a secret grand jury directly to trial. The California Supreme Court ruled in 1978 that defendants indicted by a grand jury have a right to a preliminary hearing. But even here, most defense attorneys choose not to put on an affirmative defense because they want to avoid tipping their hand to the opposition--that is, they want to avoid revealing what witnesses, theories and testimony they plan to use at trial.

The McMartin defense, however, says there are few secrets about its approach, and that it has little to lose by trying to reduce the number of counts still standing against the seven nursery school teachers charged with molestation and conspiracy involving 14 children left in their care between 1978 and 1984.

Latiner, who represents defendant Peggy Ann Buckey, 29; Daniel Davis, who represents her brother, Ray Buckey, 27; and Dean Gits, who represents their mother, Peggy McMartin Buckey, 58, are presenting the affirmative defense. William Powell and Barbara Aichele, who represent Mary Ann Jackson, 57, say they are participating, but reluctantly.

And the other three defense attorneys--Walter Urban, representing Betty Raidor, 65; Eliseo Gauna, representing Babette Spitler, 37, and Bradley Brunon, representing school founder Virginia McMartin, 78, have refused to participate but are still required by Municipal Judge Aviva K. Bobb to be present in court with their clients throughout the proceedings.

The purpose of an affirmative defense, Gits said, is to establish a defendant’s innocence or to overcome the prosecution’s case by presenting favorable witnesses. Witnesses who have already testified and been cross-examined are sometimes recalled so that the scope of the questioning can range beyond the limits set by the prosecution’s direct examination.

The defense, in a series of interviews with The Times, says it is focusing on the second purpose.

“Obviously I’d like to convince the judge that the charges are unfounded,” said Latiner. “But I’m not so naive as to think I’ve a great prospect of that. But there is also a need to develop evidence so that the (court) record reflects the reality of the case. It will be reviewed by many individuals in positions of authority--both prosecutorial and judicial. This way there won’t be any misapprehensions about the problems with the case.”

At the end of the hearing, Bobb must decide whether to order any or all of the seven defendants to stand trial on some or all of the counts, and the district attorney’s office must then decide whether its case is strong enough to proceed further against any or all of them.

Testimony at the preliminary hearing is being videotaped and may be used at trial if a witness becomes unavailable. Latiner said the defense especially wants to get “unfriendly witnesses” on the stand now, and notes that one elderly prospective witness, a former McMartin teacher, has already died.

The defense contends that the McMartin charges rest solely on the accounts of the children, with no corroborating evidence.

Medical evidence of sexual abuse that physicians testified they found in numerous children, in Gits’ words, “doesn’t mean a damn thing.” Latiner dismisses the scars and enlarged body openings noted by the pediatricians as nothing more than the result of scratching, masturbation and hard bowel movements.

Study of Evidence

Another defense attorney, who asked that he not be identified, has told The Times that he is persuaded by the medical evidence that some of the children were, in fact, molested, adding quickly, “but not by my client.”

The defense scenario starts with a young child’s allegations that he has been molested at the McMartin school by the founder’s grandson, defendant Ray Buckey, as well as by gym instructors elsewhere, strangers at the park and his own father.

“That,” Latiner says, “is the tiny snowball at the top of the hill that gathers momentum over the months and finally comes crashing down on everything below.”

The Manhattan Beach Police Department then sent out a letter to parents of other children attending the school indicating that their children may also have been molested. According to Latiner, “mass hysteria” was the result, although when questioned by their parents almost all the children denied anything had happened. Buckey was still the only person at McMartin under suspicion at that point in the investigation.

Social Worker’s Role

Suddenly the responsibility for interviewing McMartin children shifted from Manhattan Beach Detective Jane Hoag to Kee MacFarlane, a social worker at Children’s Institute International, a diagnosis and treatment center for child abuse victims. MacFarlane, according to the defense scenario, started with the conviction that abuse had taken place and that her function was to get the children to admit it.

After about a dozen interviews, MacFarlane began “bringing in” the other teachers, Latiner believes, using nude dolls, discussing the body’s private parts and suggesting that the children act out games using dolls named for the teachers--”Miss Peggy,” “Miss Betty” and so forth.

Suddenly it hit MacFarlane that the other teachers might have had knowledge of what happened, because Ray Buckey allegedly took children to places away from the school and many of the children were not at the school in the afternoons or during the summer, when Buckey was present. “Voila,” says Gits. “The focus shifted to the other teachers, and only after she shifted her outrageous techniques to those other teachers did it occur (that children implicated anyone besides Buckey).”

Parents were shown only selected parts of the videotaped interviews with their children, and in the ensuing weeks, the defense says, the youngsters basked in new-found attention, compared notes, and kept “remembering” still more.

Stories Got Better

Latiner described what he views as the youngsters’ attempts to top each other’s stories, the more bizarre the better. “If one says he saw a bunny slapped, the other says he saw its ears cut off. A cat, a sheep, a cow, two turkeys and a goat. A pony, a horse, a lion. An airplane, ‘Well I went up in a hot air balloon.’ A ship. A mortuary. ‘That’s nothing, I went to the cemetery and dug up bodies.’ ”

“The district attorney put these kids on a runaway freight train,” said Gits. “The tapes were not reviewed, they (prosecutors) just went with whatever Kee (MacFarlane) said.”

“Largely we will try to construct a logical sequence of factors that contributed to the artificial traumatization of these children,” said Davis, asked about his decision to put on an affirmative defense. “We started by going to the school (with Judge Bobb), then we called Hoag (Manhattan Beach police Detective Jane Hoag), and now we have MacFarlane, who is the biggest carpetbagger in the whole case.”

Some of the witnesses the defense intends to call to support this theory have already appeared.

From Hoag, the defense elicited testimony that, in August of 1983, after receiving a telephone call from a mother who said her 2 1/2-year-old son had been molested at the preschool, she had interviewed the child. He identified Ray Buckey but did not implicate any of the other teachers.

Result of Interviews

Subsequent interviews with about a dozen other children yielded no evidence that implicated Buckey or the other teachers, Hoag said.

Shortly thereafter, the Manhattan Beach Police Department sent a form letter to more than 200 families of McMartin children, asking parents to question their children about possible molestation. The defense says that it has copies of the parents’ answers, which show that no more than six indicated their children had said anything suspicious about Buckey. None made mention of the other teachers, the defense adds.

However, since prosecutors have refused to stipulate to these facts, Gits has threatened to call all 225 parents to the witness stand to ask them about the letter, their questioning of their children, and their reply to the police.

From MacFarlane, the defense elicited testimony that none of the first dozen children she interviewed implicated anyone other than Buckey.

Exactly who first mentioned the other teachers--MacFarlane or the children--is unclear from court testimony. However, MacFarlane has told The Times that the children first brought up the other teachers. “I didn’t ask for the first 12; finally I began saying, ‘Hey, wait a minute, where were all the others?’ ” And only then, she said, did they begin to tell her that the other teachers were present and participating.

Question of Reliability

But defense attorney Davis says MacFarlane’s interviewing techniques supplied information that “impinged” on the children. “The data they received from her is consistent with their testimony at the preliminary hearing. She is another link to show the judge that the testimony of the children may be what they believe, but is not reliable to bind anybody over. . . . Not that children are bad or little liars. I believe that CII (Children’s Institute International, where the children were interviewed) was involved in a laudatory effort, but they should acknowledge their limitations.”

The defense also subpoenaed Anthony Brunetti, lead investigator on the case for the district attorney’s office. He testified that despite a $1-million investigation, as many as 14 investigators working on the case at a time, hundreds of interviews with neighbors and friends, a dozen searches of homes and businesses, and a search through the Los Angeles Police Department’s cabinets of child pornography, nothing has been found to corroborate the children’s accounts of being molested at the school, or involved in some satanic or pornographic scheme.

“They even searched the house of a crazy man in Manhattan Beach who’d talked about blood but only wanted to publicize the Second Coming,” said Latiner. “They were so desperate that they secretly bugged Peggy (Buckey) and Ray (Buckey) in private conversations for three months.”

Neither said anything incriminating, Gits said. Indeed the tapes contain such touching vignettes as Peggy Buckey voicing concern over the fate of an injured bird, he added.

Witness for the Defense

The defense next plans to call Deputy Dist. Atty. Glenn Stevens, one of three prosecutors handling the case, but refuses to say what he will be questioned about.

Although defense attorneys refuse to say who their other witnesses will be, Davis said that “we are not using the children to make our points.”

As the tedious afternoons wear on, some critics have accused the defense of prolonging the case beyond reasonable limits. The lawyers insist this is not so.

“We are not doing make work,” said Gits. “This is very important.”

Two of the defense attorneys--Gits and Latiner--have been court-appointed from the start. Last month Bobb agreed to put Gauna and Brunon on the county payroll. Decisions on requests by Urban and Davis are still pending. That leaves only Powell who has not requested court-appointed status.

Davis says he is completely broke and has not received any money from his client since November of last year. He now owns the McMartin school and grounds, but cannot sell it, he says, because it must be preserved as evidence in the forthcoming trial. (He said he is certain his client, Ray Buckey, will be bound over for trial on at least some counts).

Financial Difficulties

Davis’ telephone has been disconnected and, he says, he is three months behind on his house rent and has lost his Beverly Hills penthouse office and secretary. He says he will stay on the case until the end, although he is concerned that he cannot afford to bring in leading medical experts to testify for the defense.

Davis, whose relationship to Bobb can best be described as antagonistic, says he doubts the judge will ever agree to put him on the county payroll.

When the affirmative defense and the prosecution’s rebuttal, if any, finally is completed, probably sometime next year, defense attorneys say they will file a motion to set aside the charges on grounds that there is not reasonable or probable cause to believe any crime was committed.

Most observers expect that at least some of the defendants will be ordered to stand trial on some of the counts, and that the trial and related proceedings will take years more.