Major Preliminaries : While Most Pretrial Hearings Are Short, a Few Have Become Increasingly Long, Complex--and Expensive

The preliminary hearing for seven former McMartin Pre-School teachers charged with child molestation ground along for a record length of 18 months and a record cost of $4.1 million.

The hearing for Night Stalker suspect Richard Ramirez, accused of 14 murders, took two months and two weeks.

Last year’s “prelim” for accused “killer cops” Richard H. Ford and Robert A. Von Villas lasted two months.

The 1980 preliminary hearing for Angelo Buono, accused of being the Hillside Strangler and later convicted of nine murders, took nine months.

California’s municipal courts conduct 100,000 felony preliminary hearings each year, and while most take less than half an hour, a few others have escalated from simple, short proceedings into pretrial “trials” that grow increasingly longer, more complex and costly.

Long prelims most often occur in multiple-count, multiple-defendant or multiple-lawyer cases, such as McMartin and Night Stalker, which capture the public’s attention and can create the misimpression that all prelims are excessively time-consuming.

Preliminary hearings, which cost California about $65 million a year, have grown from a check on prosecutors to make sure that the evidence warrants charging a person with a crime to become, in some instances, mini-trials, critics charge. A key reason that some prelims are so long, according to more than two dozen judges, attorneys and court administrators, is the use--primarily by defense lawyers--of discovery, the pretrial process in which attorneys try to learn what evidence their adversaries have through extensive questioning of witnesses and examination of documents.

“The preliminary hearing has evolved from its original purpose (with other) functions grafted on, which, if used to their fullest, have the potential of leading to a very time-consuming process,” said Los Angeles Municipal Judge Aviva K. Bobb, who presided over the McMartin prelim.

When Riverside attorney James D. Ward recently argued a case before the U.S. Supreme Court, the justices questioned him about California’s long prelims.

“They see us as very unique and somewhat off the wall . . .” Ward said. “They were astounded, flabbergasted at the length of hearings . . . when I told them about McMartin, they were just overwhelmed.”

While 32 states require preliminary hearings and 25 use them instead of grand juries, California is considered unusual because, under a 1978 state Supreme Court decision known as the Hawkins ruling, defendants are entitled to a preliminary hearing even after they have been indicted by a grand jury.

Without that ruling, the state’s longest preliminary hearing--McMartin--never would have taken place.

The case, like many sex-crime prosecutions, was presented to the grand jury because the Los Angeles County district attorney’s office considered the closed-door hearing less traumatic for the 18 alleged victims, then ages 4 to 9, who were needed to testify about their alleged molestation. The sessions lasted three days and were recorded in a 500-page transcript.

Seven defendants were indicted on 115 charges of felony child molestation.

But five of the seven defendants then exercised their right to have a preliminary hearing, and prosecutors opted to consolidate all seven cases after additional charges were filed by the district attorney in an “information,” which requires a preliminary hearing.

The McMartin prelim--which involved heated debate among seven defense lawyers, three prosecutors and several attorneys representing parents and other interested parties over approximately 300 counts--lasted 18 months and produced a 45,000-page transcript.

Although McMartin is considered an aberration in contrast to most preliminary hearings, it has caused experts to reassess prelims in general and discuss the potential for increasingly long ones. Central to the increasing length, the judges and lawyers say, are appellate court decisions and legislation that encourage more discovery, and meticulous lawyering by appointed defense counsel who fear disciplinary hearings or malpractice suits.

Supreme Court Justice Stanley Mosk set the tone for vigorous discovery in the Hawkins decision by noting that a preliminary hearing afforded “the possibility of developing further evidence through a probing cross-examination of prosecution witnesses. . . .”

Lengthening Process

But extensive discovery can stretch a simple probable-cause hearing right into the history books.

Examples of discovery that lengthen prelims include extended cross-examination, such as defense lawyers’ questioning of one child in the McMartin case for 16 days, and defense attorneys’ demand in the Ramirez prelim for thousands of pages of investigators’ notes and items such as the list of several thousand anonymous tips to police agencies about the Night Stalker.

“The prelim has grown into a full-blown pretrial trial, a mirror image of what is going to happen in Superior Court,” said Los Angeles County Sheriff Sherman Block, who has worked for legislation to streamline prelims and other court procedures.

Block, who is responsible for transporting jailed defendants to preliminary hearings, noted that at one time 70% of his jail inmates were serving sentences but now has shifted to 65% awaiting or attending preliminary hearings and trials.

“The question really boils down to ‘How many fair trials is the defendant entitled to?’ ” said Donald Eastman, chief deputy of the district attorney’s central district trial division.

Asked why defense lawyers spend so much time in the quest of discovery, Daniel Davis, attorney for Raymond Buckey, one of the two remaining defendants facing trial in the McMartin case, responded:

Called Difficult Task

“Because you have to extract it (criminal discovery) like teeth. When you can’t get information from the prosecutor--and you won’t when the prosecutor is unprepared or has under-investigated or over-filed the case--you have to get it from the witnesses on the stand.”

Discovery by means of lengthy cross-examination of all children in McMartin, added Dean Gits, attorney for Peggy McMartin Buckey, the other remaining defendant, was made necessary by the “bare bones” case presented by the prosecutors.

“The D.A. did not, perhaps could not, specify the dates involved in any incidents. We had a time span anywhere from six months up to three years. I would like to know how we could examine children about that time span without specifics of what else occurred,” Gits said. “It is easy for the D.A. to say, ‘Did anybody touch you? At the school? Thank you very much.’ It is up to the defense attorney to find out what else happened.”

“A particular child voiced so many inconsistencies that it would be a real violation of your duty to protect your client if you didn’t go into extensive cross-examination,” said Barbara Aichele, who, with William P. Powell Jr., represented Mary Ann Jackson until McMartin charges were dropped against her. “This idea that defense attorneys engage in unwarranted fishing expeditions is a red herring.”

“If a child says that in one hour he was taken to an airport, flown to a ranch, saw animals slaughtered, was abused, and flown back all in one hour, you would be crazy not to ask questions about it,” added Bradley Brunon, who represented Virginia McMartin until charges were dropped against her after the prelim.

Point of View

Arturo Hernandez, who represents Ramirez, said defense attorneys must work to obtain even seemingly unimportant documents so that they can examine all possible ways to impeach witnesses. A police report might seem unimportant to a prosecutor, he said, but crucial to a defense lawyer if it showed that a witness who pointed out his client in the courtroom had been unable to describe him immediately after a crime.

“We are entitled to discovery and we must hunt it down. When you get a heck of a lot of information then you know it was right to pursue it,” Hernandez said. “The ethical duties of a defense attorney require that we have to present every avenue of defense, and if you don’t have the whole picture there might be some problems.

“It’s a ‘Catch-22’ for the defense attorney,” Hernandez added. “If you ask for these things, you are criticized for dragging out the proceedings. If you don’t, and your client is found guilty, someone may say you didn’t do what you should have to defend him.”

“It is in the interest of the defendant . . . to squeeze out every drop of discovery-type matter,” said U.S. District Judge Richard A. Gadbois Jr., who handled preliminary hearings as a Municipal Court judge and felony trials as a Superior Court judge. “When you get through with a preliminary hearing, there isn’t going to be anything the prosecutor has up his sleeve,” he said.

And prosecutors say they want defense attorneys to know what’s up their sleeves.

Seeing the Evidence

The greatest benefit of the preliminary hearings, prosecutors and defense attorneys agree, is that each side gets a look at the evidence--solid or weak--designed to convince a jury that the defendant is guilty beyond any reasonable doubt.

Such knowledge fosters plea bargaining, they say, without which the overburdened court system would grind to a halt. San Diego attorney Alex Landon, president of the 1,800-member California Attorneys for Criminal Justice, the state’s largest organization of criminal defense lawyers, described prelims as “sort of a cleansing process for both sides to review the case.” Discovery, he said, leads to open and equitable plea negotiation.

“This is not forcing a defendant into plea bargaining,” said Los Angeles County Public Defender Wilbur F. Littlefield. “It is just showing him the facts of life. It is fair to the defendant to show him whether his chances are slim or none.

“And it works the other way, too,” the defense expert said. “These witnesses may look great on paper but when they get on the witness stand, they look just terrible. The D.A. thinks he has a good case and suddenly it is a can of worms.”

While prosecutors fault defense attorneys for extending prelims by exploiting discovery powers, the defense lawyers point out that they have no choice.

Malpractice Threat

Appellate courts have not only overturned decisions on the grounds that defendants had inadequate legal advice from appointed counsel, Landon said, but the Legislature has dictated that attorneys in such cases be referred automatically to the State Bar for disciplinary action. Any attorney caught in that situation, he added, is wide open to a malpractice suit.

“It’s no wonder attorneys are more careful,” said U.S. District Judge James M. Ideman, a former deputy district attorney and Superior Court judge. “They want to cross every ‘T’ and dot every ‘I’ much like a doctor making tests for every little thing to avoid a malpractice suit.”

Landon said the Legislature has further lengthened preliminary hearings by adopting laws imposing stiffer sentences for enhancements such as using a gun, prior convictions or causing great bodily injury. Prosecutors, he said, must put on more evidence to demonstrate the extra conditions, and all that takes time.

However, prosecutors counter that defense attorneys stretch out preliminary hearings to burn out prosecution witnesses so that they decline to testify at the subsequent trial.

“Most of the time they know we have a winner,” said Los Angeles County Assistant Dist. Atty. Curt Livesay, a prosecutor for 21 years, “and they want to build in some frustration . . . delaying until the witnesses move away, or just putting off the inevitable--especially if their client is not in custody.”

“Some attorneys,” Ideman agreed, “use the preliminary hearing to intimidate witnesses so they won’t come back.”

Questioning of Children

Deputy Dist. Atty. Lael Rubin, who prosecuted the McMartin prelim, said a major reason for its record length was the extensive cross-examination by seven defense attorneys of the 14 child witnesses--74 days compared to her 14 days for direct questioning. She said the grueling interviews undoubtedly frightened away many potential witnesses.

“They have an interest,” she said, “in doing whatever they can to persuade other families and other children not to testify.”

McMartin defense attorneys hotly denied the charge and said videotapes of the testimony prove children were never badgered or traumatized in their hours each day on the witness stand. Brunon dismissed the comment as “typical bleating of a prosecutor whose case went South” and Aichele called the charge “unwarranted.”

“Characterizing cross-examination as a defense tactic to scare off witnesses is just ludicrous,” Gits said. “We want the children to open up, because when they say certain acts occurred, often fabrication is revealed. You betcha I want even more children to testify because my client is not guilty.” Landon also denied that defense lawyers intentionally try to inconvenience or discourage witnesses. Clients often voluntarily plead guilty to spare victims from testifying, he said, particularly in molestation cases, which usually involve family members.

McMartin defense attorney Brunon pointed out that his client, Virginia McMartin, had offered to waive her preliminary hearing, sparing the child witnesses one round of testimony, but prosecutors insisted she be included.

Denies Charge

“The bottom line is this,” Landon said. “Defense attorneys are not interested in troubling victims (witnesses), in putting people off or burdening people’s schedules.”

Although many prosecutors long for the pre-Hawkins days, they have always agreed with defense attorneys that prelims were the only way to process the bulk of California’s cases. The Hawkins ruling has not markedly increased the number of prelims. Before 1978, only an estimated 2.5% of felony cases statewide were taken to grand juries, and populous counties used them even less.

In Los Angeles County, Livesay estimates, his office sought grand jury indictments in no more than 40 cases a year (out of roughly 27,000) before the Hawkins decision, and that that number has now dropped to three or four annually.

Even if preliminary hearings have grown in length, concluded the defense lawyers’ spokesman Landon and prosecutor Livesay, they still benefit the state court system.

“In the long run, they save time,” Landon said, “because without them we would have to go through more trials.”