McMartin Case Faces Mistrial, Judge Says

The judge in the McMartin Pre-School molestation case said Monday that he may be forced to declare a mistrial if the defense is prevented from cross-examining a jailhouse informant who provided damaging testimony against Raymond Buckey.

The witness, convicted felon George Freeman, has been advised by his attorney to invoke the Fifth Amendment to avoid answering questions about whether he lied under oath in a previous case, prosecutors said.

Freeman, Buckey’s former cellmate at Men’s Central Jail, testified last month that Buckey had admitted molesting several children, having sex with his sister, burying photographs in South Dakota that document sexual acts at the McMartin school and belonging to a religious cult. Freeman also testified that Buckey’s lawyer, Daniel Davis, threatened to have him killed.

But as Freeman’s testimony neared completion last week and defense attorneys prepared to begin cross-examination, Dist. Atty. Lael Rubin asked Superior Court Judge William Pounders to appoint an attorney to advise Freeman. Pounders appointed Rand Rubin (no relation to the prosecutor) to represent Freeman, a five-time convicted felon with a 15-year record of burglary and robbery.

Little Recourse

If Freeman takes the Fifth, Pounders said he would have little recourse but to declare a mistrial because Buckey would have been denied his right to cross-examination.

Pounders said merely striking Freeman’s testimony would not remedy the situation.

“The witness here has testified to a confession (of molestation), death threats by the defense and acts of incest by the defendant. I cannot believe a jury could disregard that. I don’t believe this could be ‘struck’ ” from the record, as might be done in another case, Pounders said.

“So the only alternative would be a mistrial if that is requested,” Pounders said.

Pounders said he would consider several alternatives, including a grant of immunity from prosecution that would compel Freeman to complete his testimony. Prosecutors said they may ask Pounders to grant Freeman immunity today.

But defense attorney Davis questioned the propriety of the district attorney’s office seeking immunity for Freeman “after knowingly bringing a perjurious witness on. . . . It would reward him for his prior perjury and protect him from any lies he could tell during this proceeding.”

‘Concocted’ Murder Admission

Davis said Freeman “concocted” an admission of murder by an inmate when he testified at a 1980 trial stemming from riots at Soledad Prison.

Prosecutors said Freeman has admitted that he lied under oath at that trial, lied in a 1984 Los Angeles murder trial and lied again at the McMartin Pre-School preliminary hearing.

Deputy Dist. Atty. Roger Gunson suggested that specific incidents of lying may be inadmissible evidence, but he was cut off by Pounders who reminded him that “Lying under oath is a felony. . . . It goes to the heart of believability of a witness who is testifying.”

Gunson also suggested such alternatives as a ruling that Freeman had waived his Fifth Amendment rights by agreeing to testify in the first place; a stipulated agreement by both sides that Freeman has perjured himself previously, or an effort to bring in evidence of perjury through testimony by an investigator for the district attorney’s office who took notes on Freeman’s admission.

If Pounders declares a mistrial, Buckey’s trial would be severed from that of his mother, Peggy McMartin Buckey, 60. Her case would continue before the present jury; a new jury would be selected for her son.

Buckey, 29, and his mother are charged with 99 counts of child molestation and one count of conspiracy in a case that took nearly four years and $6 million to reach the trial stage. Their joint trial began July 13, after three months of jury selection.

Did Not Appear

In a separate development, family matriarch Virginia McMartin disobeyed a court order and did not appear Monday to complete her cross-examination. Her daughter’s defense attorney, Dean Gits, said the 80-year-old McMartin is “quite ill,” but that no physician’s verification is available “because of Mrs. McMartin’s religious beliefs.”

Pounders rescheduled her questioning for Oct. 19, and said if she is unable to appear then, he will require a doctor’s examination.