McMartin Suggests Trials in Smaller Bites

Since the first sensational allegations were made public more than five years ago, the McMartin Pre-School child molestation case has been a nightmare for Southern California.

The reports of wide-ranging sexual abuse of children terrified parents. Many wondered if there was anywhere their children might be safe.

Now the nightmare is a legal one. It has become the case that will not end.

The preliminary hearing, a proceeding designed to screen the cases brought by the district attorney, took a year and a half, the longest in California history. Although the judge found there was probable cause for all seven defendants to stand trial, Dist. Atty. Ira Reiner dismissed charges against five defendants, saying he had no case against them.

The trial that followed is now in its third year, the longest and costliest ($15 million) criminal trial in American history. With the recent release of a fifth juror, an alternate, the prospect of a mistrial from not having 12 jurors to decide the case looms large. A mistrial would mean starting the trial all over again.

The trial judge calls it a case that has “poisoned everyone who has had contact with it.” Indeed, the criminal justice system seems to have abused everyone here: from child witnesses who faced days of harsh courtroom examination concerning their accounts of molestation; defendants who faced months of legal proceedings only to have the district attorney dismiss charges, calling the evidence against them “incredibly weak,” and jurors and all the other participants who have given up large chunks of their lives to the case.

Whatever else may be said about the McMartin Pre-School case, one thing is clear: It has gone on too long. Justice, if it has not been denied here, has certainly been diminished.

What can we do to prevent a recurrence? Streamlining justice is a harder problem than it seems because the reasons for delay are so varied.

In some instances we might blame the defense for deliberately seeking tactical advantage in an extended proceeding. We might blame the prosecution and police for poor case preparation. We might blame the judge for not taking control of the proceedings. We might blame the law for requiring too elaborate a proceeding. Or it might be that the case itself involves so many contested facts and so many novel issues that it demands an enormous amount of time to resolve.

In other words, a case may drag on for reasons peculiar to it and not provide any reason for system-wide reforms. This is especially important to remember with regard to the McMartin case, a case which has been unusual in almost every way. Nevertheless, there are some changes we could make to control even the extraordinary proceeding.

A starting point is to set a basic time limit, say six months, for trials and trial-like proceedings. Any proceeding that lasts longer than that will severely tax the abilities of participants and fact-finders to forge a just result. Beyond a certain point, more in the way of a trial will produce less in the way of justice.

The next step is to decide how to keep cases within the 6-month limit. One way to prevent cases from burgeoning to McMartin-like dimensions would be to give judges the power to limit the size of a case brought by the state. One reason for the length of the pretrial and the trial proceedings in McMartin was the number of defendants and number of charges. The preliminary hearing featured a total of 323 charges against seven defendants. The trial against the remaining two defendants originally involved a total of 99 counts of molestation and one shared charge of conspiracy; during the course of the trial, 35 molestation counts have been dismissed.

Under present law, prosecutors have broad powers to decide how many defendants and charges to bring in a single case. For tactical reasons (the more damaging evidence the jury hears the better, from the prosecutor’s standpoint) and resource reasons (less jury selection time, no repetition of testimony) prosecutors will almost always favor a single case as opposed to several. Yet some cases are simply too big to try in a single proceeding.

If the prosecution brings a case that is likely to last longer than six months (the original trial estimate in the McMartin case was between a year and two years), the court should have the power to order the prosecution to split up the case and try it in separate phases. This might require the repetition of testimony in some instances, especially when conspiracy is charged. Additional jurors would have to be selected. These additional costs might not be required, however, if prosecutors would take the opportunity to trim their cases to more manageable dimensions.

The disadvantages of this approach underline the dimension of the problem. Streamlining criminal cases requires reaching a new compromise in how we allocate court, attorney and juror resources. We must ensure that the compromise is a fair one, that justice is enhanced and not diminished.

The McMartin case suggests how important it is that criminal justice decisions be made swiftly as well as fairly. The case also illustrates, however, how difficult that can be to achieve.