Not an Unprecedented Move : Reiner Defends Action as ‘Ethical, Moral’ Decision

When Los Angeles County Dist. Atty. Ira Reiner walked to a lectern Friday to announce that he was halting prosecution of five defendants in the McMartin Pre-School case, he was taking a rare, but not unprecedented step.

Not since former Dist. Atty. John Van de Kamp decided to drop multiple murder charges against accused Hillside Strangler Angelo Buono in 1981 has a county district attorney moved to dismiss charges in as heavily publicized a case.

Reiner’s decision was immediately hailed by his aides as politically courageous.

He himself, in words reminiscent of Van de Kamp’s, said that it would “obviously” have been easier to choose to continue prosecuting all seven defendants and let a Superior Court judge or jury decide their guilt or innocence at trial, than to make the decision on his own and face a possible political firestorm whipped up by critics.

But Reiner said he concluded that he had “an ethical and moral obligation” not to pursue prosecutions where he felt evidence was too skimpy.

That conclusion was reached after hundreds of hours of dialogue between Reiner and a handful of the top career prosecutors on his 600-member staff, according to some of those who participated.

Discussions were often rigorous.

Deputy Dist. Atty. Lael Rubin recalled one particularly grueling weekend session that began at 8 a.m. Saturday and continued to 11 p.m., then resumed at 7 a.m. Sunday and lasted until midnight. “Food was being sent in and we had bathroom breaks,” she said.

At meetings that began several months ago and intensified last month as the preliminary hearing drew to a close, prosecutors reviewed all 100,000 pages of transcript from the hearing, the longest in state history, said Rubin, most senior of the three lawyers assigned to the case. “It was a process the likes of which I don’t think anybody has ever seen.”

The evidence review involved some of the most experienced attorneys on the district attorney’s staff--the directors of each of the criminal divisions, the attorneys prosecuting the case in court, investigators, the head of the appellate law section and Reiner himself.

The discussions centered on whether there was enough evidence against each defendant to take him or her to trial.

Rubin Only Dissenter

A consensus emerged. The only substantive dissent was voiced by Rubin, who agreed that it was best to drop charges against four of the seven but wanted to continue prosecuting Betty Raidor, who had been a teacher at the school, participants said.

There was no animosity on this point, however. Participants said Rubin had described the question of whether to continue against Raidor as a close call.

Reiner kept political considerations out of the discussion, participants said. “The man is an elected official . . . (but) it simply never, ever entered the picture,” said Chief Deputy Dist. Atty. Gilbert Garcetti. “. . . He made it clear that he wanted all the facts and your assessment of the case. . . . ‘I don’t care what you think I want.’ ”

‘Everybody Agreed’

Every witness’s testimony was analyzed and medical corroboration was reviewed, said Assistant Dist. Atty. Curt Livesay, who participated in discussions as the office’s third-ranking prosecutor. “Everybody agreed.”

Participants declined to discuss the reasoning behind their positions, citing a continuing need for confidentiality in light of the coming trial for the two remaining defendants in the case. But they said that their review was far more exhaustive than that undertaken by Van de Kamp before he decided to dismiss murder charges against Buono.

Like Reiner, Van de Kamp acted after a preliminary hearing at which a Municipal Court judge had ruled that there was probable cause to send the defendant, or in this case, all defendants, to Superior Court for trial.

But Van de Kamp’s unusual decision, taken on the ground that the charges against Buono could not be proved, was reversed in equally unusual fashion by a Superior Court judge, who ruled that the dismissal was not in the interests of justice.

Buono Was Convicted

The attorney general’s office then took over the case and Buono was convicted and sentenced to prison for life.

Van de Kamp’s decision was used against him in political campaigns, but there is no evidence that it has damaged his career. He is now state attorney general.

But those advising Reiner were taking no chances of having their boss second-guessed by a Superior Court judge.

Reiner disregarded the district attorney’s procedures manual, which called for charges to be filed against all seven McMartin defendants in Superior Court, before moving to dismiss charges against the five.

Instead, Reiner moved to dismiss the charges before they could be filed in Superior Court.

Inherited Case

Reiner noted Friday that he had inherited the McMartin case, but he offered no direct criticism of his predecessor for filing it.

Robert H. Philibosian, district attorney when the original McMartin charges were filed, defended himself, but returned Reiner’s courtesy by not castigating Reiner for the dismissal.

Philibosian said only that “competent, ethical prosecutors reached the conclusion that there was a reasonable expectation of a conviction when they charged these defendants, because that’s the standard used for filing.”

Then Philibosian, who was defeated by Reiner in a 1984 election, said of Reiner’s staff: “If they believe the defendants are innocent, then they have a duty not to prosecute. . . . Somewhere between a belief that they’re innocent and a willingness to proceed with the case is a broad area called prosecutorial discretion. This is largely a matter of judgment: Is there enough evidence to proceed?”

Has Gone Through It

Philibosian knows a lot about judgment calls.

When Van de Kamp moved to dismiss the Hillside Strangler case, Philibosian was chief of the attorney general’s criminal division. He played a key role in that office’s decision to take up the case and supervised much of the ultimately successful prosecution.

“John Van de Kamp reached one decision. I reached another,” Philibosian said. “. . . John Van de Kamp was obviously wrong. If it had been up to John Van de Kamp’s determination, saying to the court that he didn’t have enough evidence, Angelo Buono would be on the streets today. . . . Whether Ira Reiner is wrong, I don’t know. . . .”

Philibosian noted that first his office, then a grand jury and then a Municipal Court judge had found probable cause to believe that the McMartin defendants were all guilty. But he said he could not second-guess Reiner because he did not know what had developed at the preliminary hearing.

Now, ironically, it could fall to Van de Kamp, as attorney general, to second-guess Reiner.

Seek to Revive Case

Some disgusted parents of McMartin children said Friday that they would ask the attorney general’s office to revive the prosecution--an extraordinary action that Van de Kamp could take if he believes that Reiner abused his discretion in dropping charges.

If anyone knows what Reiner feels like, it is Van de Kamp.

Van de Kamp himself did not return a reporter’s call Friday. But in an interview shortly after Angelo Buono’s multiple murder conviction, he ruminated briefly on his situation.

“Having taken (the) action under the circumstances,” he said, “I am not embarrassed. I can go home at night and know that I operated in good faith on this case.”