Decision to Try Two in McMartin Case Upheld

A Superior Court judge ruled Tuesday that Los Angeles County Dist. Atty. Ira Reiner acted appropriately in deciding to prosecute two McMartin Pre-School teachers for child molestation and to drop charges against five others.

“Based on a review of the quality and quantity of evidence available,” said Los Angeles Superior Court Judge William Pounders, “I’m saying that there is credible evidence . . . (to) justify a determination that the district attorney should proceed against these two defendants and not against the other five.”

Defense attorneys had argued that the district attorney’s office was guilty of discriminatory enforcement of the law in continuing to prosecute only two of the original seven defendants.

‘Different Situation’

“I have come to the conclusion that these defendants are in a distinctly different situation than those of the other five,” Pounders said. That difference justifies Reiner’s decision to discriminate among the defendants because it is “based on the evidence rather than on some invidious purpose exercised by district attorney,” the judge held.

In fact, Pounders said, going a step further, not proceeding against Ray Buckey, 28, and his mother, Peggy McMartin Buckey, 60, would have been “an abuse of discretion” on Reiner’s part. The judge said he would have denied any motion brought by the prosecution to dismiss the charges “based on the evidence I’ve seen.”

Pounders emphasized that there are conflicts in that evidence--which includes videotapes and transcripts of interviews with 14 children who attended the Manhattan Beach nursery school and their testimony at the preliminary hearing--but said that “the ultimate truth” is up to a jury to decide.

“I do wish at this time to deny the defense motion to dismiss the charges against these two defendants based on the issue of discriminatory enforcement of the law,” he said.

Motivation Probed

Pounders had said he would allow defense lawyers to probe for the district attorney’s motivation in continuing to prosecute the Buckeys only if they could show that all seven original charges were “similarly situated.”

He had provided the defense last week with the names--under seal--of the four child witnesses he found “most spontaneous and possibly most truthful” to guide the attorneys in their written rebuttals, which were also sealed by the court.

The defense had argued that the child witnesses had implicated all seven teachers and that all seven had been ordered to stand trial after a grand jury indictment and an 18-month preliminary hearing.

Defense attorneys contended that when Reiner dropped charges against five, citing “incredibly weak” evidence, he maintained the case against the remaining two for political reasons and because they had been held in jail for two years.

Prosecutors’ Viewpoint

Prosecutors, however, argued that medical evidence and the children’s statements strongly implicated the Buckeys in acts of molestation, while implicating the dismissed defendants chiefly as spectators in naked games.

Outside the courtroom Tuesday, Deputy Dist. Atty. Lael Rubin said the judge’s ruling “exactly” reflected the prosecution’s position. “What we have seen in the last couple of months are a lot of unfounded charges and smoke blown in everybody’s face by the defense. Now that wall of smoke is caving in.”

“I’m disappointed and I disagree, but I respect his decision,” said defense attorney Dean Gits, who represents Peggy McMartin Buckey. In detailed legal briefs, Gits had tried to put distance between his client and her son, and move closer to the former defendants, all of whom are female.

Testimony is continuing on the issue of whether prosecutors intentionally suppressed evidence, further possible grounds for dismissing the case. The defense has also filed motions to move the trial outside Los Angeles County because of pretrial publicity and to hold separate proceedings for mother and son. A March trial is expected.