Ill Juror Replaced at McMartin Trial by Final Alternate

The last alternate juror took the empty seat of Juror No. 4 in the marathon McMartin Pre-School molestation trial Monday, replacing a seriously ill panelist and moving the proceedings, as the judge put it, “a heartbeat away from a mistrial.”

“We are now down to the final 12,” Los Angeles Superior Court Judge William Pounders told the jury. “Your participation is vital.”

The excused juror is suffering from a blood disorder that could prove fatal if he continued to serve, his physician said. The man said he felt his condition had been exacerbated by the recently lengthened court week, and Pounders asked the remaining jurors to let him know if they were suffering similarly because of the longer hours.

Six of the original 18 regular and alternate jurors have been excused, primarily for health reasons, and the trial was delayed briefly while a seventh underwent surgery.

‘Rolling the Dice’

“I feel like we’re at Las Vegas rolling the dice,” Pounders said. “And I lose in Las Vegas. It’s too much for the jury. The minute one (more) is gone, we have lost 2 1/2 years.”

A mistrial would probably be declared if fewer than 12 jurors last through the rebuttal phase and closing arguments, unless both sides agree to continue with 11. Defense attorney Dean Gits has said he would “absolutely not” agree to a reduced number.

However, Deputy Dist. Atty. Lael Rubin said in an interview that the prosecution could ask Pounders to declare the existence of “an extraordinary situation” and order the completion of the trial. Twelve-member juries are not mandatory, the U.S. Supreme Court has held, and several states routinely try criminal cases with as few as six jurors.

Rubin said the judge would be risking the loss of only a couple of months and a possible reversal of a conviction by an appeals court, making new law in the process. The issue has not yet been raised in court since there are still 12 jurors to hear the case.

The judge said he hopes to get the case to the jury before the Dec. 1 deadline he had set earlier. At the same time, he agreed to a prosecution request to call three additional witnesses. While Pounders said he does not consider the witnesses crucial, he said he decided to allow their testimony anyway after calculating what he called the defense’s “excessive” use of time and allegations of witness intimidation by a defense investigator.

Pounders, a meticulous record-keeper, said his calculations based on every fifth prosecution witness show that through cross-examination the defense, primarily attorney Danny Davis, used 70.3% of the time during prosecution’s 14-month presentation of its case against Ray Buckey and his mother, Peggy McMartin Buckey.

Intimidation Issue

A hearing on the intimidation issue was set for today after Pounders said he was disturbed by complaints from several witnesses that a defense investigator had attempted to influence or intimidate them. If the allegations are substantiated, he said he would remove the investigator from the defense team, contact the state agency that handles licensing of investigators and refer the matter to the attorney general’s office for prosecution.

The prosecution resumed its rebuttal Monday by calling a next-door neighbor who said she once saw magazine photographs of nude women spread out on a bed in what she assumed was Ray Buckey’s bedroom and found similar items stuffed in her trash can.

The testimony is intended to rebut character evidence presented by the defense and to impeach his mother’s earlier testimony.