A Plea for Bail : Lawyer Calls It Unfair That His Client Is 1 of Only 2 McMartin Defendants Still in Jail

In the 20 months Peggy McMartin Buckey has spent behind bars at Sybil Brand Institute for Women, inmates have spit at her, called her unprintable names and tried to set her hair on fire with lit cigarettes and matches, her attorney says.

Buckey is accused of child molestation, a heinous crime even among criminals.

The 58-year-old woman is being held unfairly and unconstitutionally, says her attorney, Dean Gits, who has been fighting in state and federal courts for a year and half to win her the same freedom enjoyed by five other defendants in the McMartin Pre-School molestation case.

Buckey is being held without bail on one count of molestation in a grand jury indictment and on $1-million bail on 11 similar counts in a criminal complaint.

Five other defendants, some of whom faced many more counts, have been free on bail since June, 1984. Buckey’s son, Ray, the chief defendant in the case who is facing about 90 counts, is the only other defendant in custody.

The California Constitution provides that no one can be held without bail except in three specific instances:

- The person is charged with a capital crime.

- He is charged with a felony involving violence, coupled with the likelihood that his release would result in great bodily harm to others.

- He is charged with a felony, and the judge makes a finding “based on clear and convincing evidence that the person has threatened another with great bodily harm and that there is a substantial likelihood that the person would carry out the threat if released.”

It is under this last section that Peggy Buckey is being held.

The alleged threats made by Buckey are contained in 86 letters submitted by prosecutors in June, 1984, urging Municipal Judge Aviva K. Bobb not to grant bail.

The preliminary hearing in the case had not yet begun, and Gits was trying to persuade Bobb to release Buckey on the grounds that she was being held on an indictment that had been superseded by a separate complaint on which she had been granted bail.

Most of the letters, many of which appeared to be form letters, were signed by children who had attended the McMartin school in Manhattan Beach or by their parents. Few involved children who later testified.

The letters, which were sealed by the court, said the defendants had threatened to kill the children and their parents by poison, bombs, drowning or setting their houses on fire, according to sources close to the case, and focused on the harmful effect their release would have on already traumatized children.

In an apparent reference to Buckey, one parent wrote that, upon learning that the family was filing a civil lawsuit, the defendant had telephoned her to say that “she would have to see what would happen to my daughter if we were to go through with plans to proceed. . . .”

Another reportedly asked: “Do you think someone who crushes a bird in her hand, kills ponies by clubbing them over the head with a hammer and holds a knife to the child’s throat isn’t capable of continued violence?”

Gits challenged the letters as hearsay evidence and asked to cross-examine the letter-writers. He contended that he should be allowed to ask why they believed that Buckey’s release would endanger their children, which defendants made what threats and why parents believed the threats would be carried out.

In rejecting his request, Bobb said, “I now have received new evidence . . . that affects . . . the complaint. . . . It is incumbent on me not to ignore the fact that I have received new evidence of threats and attempts to, apparently in furtherance of carrying out those threats.”

She did not elaborate on her decision.

The lawyer’s appeals of her ruling to the Superior Court, the state Court of Appeal and the state Supreme Court were also rejected, and a federal court also so far has refused to intervene.

Last month, 17 months after Bobb’s initial decision, when prosecutors finished presenting a considerably smaller case than they began with, Gits renewed his efforts to free Buckey on bail.

“At the very most, only two children testified (during the preliminary hearing) that Peggy made any threats,” Gits said. “Even if you believe them, there is no rational way that anyone could conclude that this 58-year-old matronly woman poses any threat of committing great bodily harm on anyone. That is the injustice.”

Gits argued that Bobb must make her decision on the facts before her now, not on the letters or on facts that a Superior Court judge considered in the summer of 1984 when he issued the no-bail ruling after Buckey’s indictment. He argued that the original indictment and no-bail ruling had both been superseded by the complaint, on which she had set bail for Buckey at $1 million.

He noted that only one of the original 15 indictment counts against her still stands, that of a 7-year-old who testified that “Miss Peggy” had touched his penis. All but 11 of the original 52 counts against her in the subsequent complaint have been dismissed or are certain to be dismissed at the end of the preliminary hearing because prosecutors did not put on any witnesses to support them.

More Dismissals Expected

Gits also said he expected that seven more counts against her would be dismissed because they involve a child who retracted her statements and a child whose credibility was put in doubt by his own testimony.

The dismissal of many of the charges against his client, Gits said, suggests that $30,000, not $1 million, would be appropriate bail, based on Superior Court guidelines of $10,000 for each count.

“It isn’t fair,” he said. “Defendant Betty Raidor got out when she was faced with 47 counts and Babette Spitler with 22, and now Peggy can’t when she’s faced with far fewer.” (Raidor and Spitler were ordered released by an appeals court that found their right to a speedy preliminary hearing had been violated. Also free on bail are Buckey’s mother, Virginia McMartin; her daughter, Peggy Ann Buckey, and Mary Ann Jackson.)

“If the judge feels the others got out by error, she should remand them,” Gits said. “If not, then Peggy ought to be released.”

The chief prosecutor in the case, Deputy Dist. Atty. Lael Rubin, countered Gits’ arguments. Not only had at least two children testified that they had been threatened by Peggy Buckey, Rubin said, but others had testified that she was present when animals were slaughtered and threats were made by her son.

“Although there was not specific testimony that threats were uttered from the mouth of Peggy Buckey, she was present . . . and under the theory of conspiracy, threats made by one of the defendants . . . are indirectly related to and attributable to the other of the defendants,” Rubin said.

“We still believe that Peggy Buckey is a danger, and I think the community believes that,” Rubin said.

On Nov. 1, after three weeks of deliberation on the bail motion, Bobb issued a terse ruling:

“I have considered the matter at very great length. I have reviewed the entire record in this case relating to the issue of Peggy Buckey’s bail. I have reviewed the arguments of both counsel. After this review, I don’t find sufficient grounds to modify the initial denial of bail by the Superior Court. This court is now in recess. . . .”

Gits said he was dumbfounded.

“I couldn’t see straight. I was in shock,” he said. “Now I’m at my wit’s end. How can I prepare an appeal when she said she based her decision on ‘everything’ that she had heard? That would require a higher court to review more than 500 volumes of testimony.”

Gits said he is torn between two alternatives: to wait for the case to go to trial in hopes that a Superior Court judge will grant bail or to file further appeals that might keep his client in jail if they have not been decided by the time the trial begins.

Meanwhile, Buckey, when not in court or viewing videotaped interviews with her accusers, remains at Sybil Brand, kept in isolation for her own protection. She may use the television room where other inmates gather--but only when it is empty.

Her ample figure, draped in loose muumuus, has swollen from a constant diet of cookies, dry sandwiches, apples and a hot meal only on court days, and Gits said she has suffered emotionally from harassment by inmates and physically from ulcers.

“The worst part is when she is taken to transportation or medication,” Gits said. “She is escorted by sheriff’s deputies, but she comes within half an arm’s reach of the other inmates. They taunt and berate her, and she is physically afraid.

“But she is very religious and able to find inner strength. She has a Bible and prays.”

Her husband, Charles Buckey, 62, an engineer at Hughes Aircraft in El Segundo, visits her weekly.