Prosecutors in the McMartin Pre-School molestation trial will try next week to introduce the videotaped preliminary hearing testimony of a girl who, according to her mother, "is too scared to testify and will not testify" at the trial.
The girl, then age 6, faced the defendants at the preliminary hearing three years ago, while reporters and spectators viewed the proceedings from an adjacent courtroom.
Use of her videotaped testimony--which included extensive cross-examination--is permitted under state law "if at the time of trial, the court finds that further testimony would cause the victim emotional trauma, so that the victim is medically unavailable or otherwise unavailable."
However, defense attorneys, who said they were not ready to proceed Monday when the motion was scheduled to be heard, are expected to argue that the arrangement is unconstitutional and that the child is available.
Their arguments may be bolstered by a U.S. Supreme Court decision last month in a Iowa case that said the Constitution requires children testifying in sex-abuse cases to confront their alleged abusers "face to face." There is no consensus about the meaning of the words "face to face." In the Iowa case considered by the high court, the child testified from behind a screen, a practice not used in California.
But the ruling is viewed by many as jeopardizing a California law that allows testimony by closed-circuit television in any criminal proceeding and permits the use of videotaped preliminary hearing testimony at trial when the witness is psychologically or physically unavailable.
Nine children have already confronted defendants Raymond Buckey, 30, and his mother, Peggy McMartin Buckey, 61, in open court during the trial, and three others are scheduled to do so.
However, in an 11-page motion filed with Los Angeles Superior Court Judge William Pounders, prosecutors argue that this child's experience during four days on the witness stand at the preliminary hearing was particularly traumatic.
Prosecutors say that defense attorneys interrupted her examination with a barrage of objections, starting with objecting to the girl being allowed to state her age as "hearsay, no foundation, speculation."
The girl told the judge in chambers that she was "scared of Ray because he stared at her," the motion says, and expressed concern to the bailiff "that Ray has a knife."
Series of Questions
A day after the magistrate suggested that defense attorney Daniel Davis, who represents Raymond Buckey, postpone any questions about knives, Davis zeroed in on her statement that "Ray said he would kill our moms" with a series of questions that used the word "kill" 22 times within several minutes.
In a declaration signed by the girl's mother, she told the court that her child is adamant about not going through the experience again.
The alleged victim's mother said she told Deputy Dist. Atty. Lael Rubin last December that she was unsure whether her child would be able to testify and that her daughter's rereading of her preliminary hearing testimony has only "reinforced her fear and her unwillingness to testify."
Pounders asked that the girl be brought to court Monday to discuss the situation privately in his chambers to determine whether her fears could be alleviated and whether it is she--or her parents--who do not want her to testify again.
The judge said he could not and would not compel her to come to court or to testify against her wishes.
Raymond Buckey is charged with three counts of vaginal and rectal penetration involving the girl. The Buckeys face a total of 99 charges of molestation and one count of conspiracy.