Ray Buckey to Be Retried on 13 Counts

Prosecutors in the McMartin Pre-School molestation case ended two weeks of speculation and extraordinary public lobbying Wednesday with an announcement that they will retry Ray Buckey on the 13 molestation and conspiracy charges that had left a jury deadlocked.

In a dramatic courtroom hearing, Los Angeles County Deputy Dist. Atty. Roger Gunson announced a decision made late Tuesday by Dist. Atty. Ira Reiner after consultations with parents of alleged victims, a review of the evidence and a vigorous discussion among his subordinates.

“There is not a motion to dismiss,” Gunson told the hushed courtroom, “but there is a motion to have it set for trial.”

Los Angeles Superior Court Judge William Pounders said he concurred with the prosecution’s decision and scheduled the trial for March 9. Pounders had presided over the original trial, which constituted the longest criminal trial in U.S. history and ended with acquittals for Buckey and his mother, Peggy McMartin Buckey, on 52 counts and a hung jury on 13 counts.

Buckey, 31, who spent five years in jail while the case proceeded through the judicial system, looked slightly dazed as the decision was announced. He left the courtroom without comment a short while later, free on his own recognizance.

The decision to retry Buckey followed an unusual effort by parents and child protection groups to rally public support for a retrial. They conducted letter-writing campaigns, lobbied politicians, staged marches, appeared on television talk shows and held press conferences.

If convicted of the remaining counts, Buckey would face 32 years in state prison, Pounders said.

The judge said that he expects to “scope down” the second trial and limit it to no longer than six months.

Also on Wednesday, defense attorney Danny Davis filed a motion to disqualify Pounders, alleging bias on the part of the judge.

“I do not feel I am biased against you or your client,” Pounders told Davis. “So I will challenge your motion. . . . I will still be here to develop ulcers and a weak heart.”

The disqualification issue will be heard by a judge mutually acceptable to both prosecution and defense, or by a judge selected by California’s chief justice. A new judge replacing Pounders conceivably could overrule the prosecution and dismiss the remaining counts.

Davis told Pounders that he may be unable to continue representing Buckey. “I need to resolve a number of obstacles,” he said, adding that he wants to confer with the presiding judge. He did not elaborate in court on the obstacles. He abruptly canceled a press conference after he noticed television camera crews preparing to interview Pounders, whom Davis has accused of making himself too accessible to the media.

Jurors Divided

Jurors who sat through the original 2 1/2-year trial were divided on the question of retrying the charges. Several said that a new trial would be costly and difficult to conduct fairly because of the overwhelming publicity surrounding the case. They predicted that a new jury would have the same problems reaching a verdict that they did.

But at least one juror, who voted for guilt on the 13 unresolved counts, said he was pleased.

Gunson and co-prosecutor Lael Rubin told reporters the decision to continue had been made after lengthy discussions with jurors, the families of the children involved, and three marathon meetings with Reiner.

They cited four major reasons: the seriousness of the alleged offenses; the commitment of the families to go forward; the feeling that everyone involved is entitled to a resolution, and the judge’s assessment that, given the evidence presented, the verdicts could have gone either way.

At least three of the five children involved in the 13 counts--who now range in age from 11 to 14 1/2--are expected to testify, Rubin said, adding that the prosecution plans to call about 15 witnesses in all.

“I was real shocked and surprised (by the decision), but I think it’s the right thing to do,” said the mother of one of the three children. The woman, who did not want to be identified, said her daughter previously had refused to testify, but now feels strong enough to do so.

“I told her and she was fine,” the mother said. “She seemed very calm. I have the feeling that you can’t give up until the last option is exhausted.”

Another parent expressed “very mixed feelings about it. It’s been a long six years on one hand. You really want to see justice served, but on the other hand your mind keeps asking the question: ‘Do you really want to go through all of this again?’ ”

Reiner, who is seeking election as state attorney general, said he alone bears responsibility for the decision to proceed against Buckey, a decision he made after sorting through the evidence with the trial lawyers and their supervisor.

Insisting that “this is not a political matter but a matter of justice,” Reiner said he based his decision on “the seriousness of the offense--child molestation; secondly, the feelings of the families, especially the children. They had stuck with this so long we felt we should go forward with it. And, thirdly, this was a case that absolutely requires resolution.

“A great deal has gone into this case for many years. It simply cannot be allowed to hang out there unresolved. . . . Finally, of course, it is our belief that these children were indeed molested at the preschool.”

Reiner, who inherited the case from his predecessor, Robert Philibosian, said it is flawed with “serious evidentiary problems brought about by the early handling of the case.”

“We have absolutely no illusions as to the difficulties of this case,” he acknowledged, calling it “an uphill battle.”

Nonetheless, Reiner said he and his colleagues “do feel we have at least an opportunity to get a conviction.”

Although his deputies insisted they intend to proceed on all 13 counts, Reiner said Buckey will probably be tried “on some but not all the counts.”

The counts involve five children who allegedly were molested at the Manhattan Beach nursery school between 1978 and 1984 by Buckey alone. The counts generally involve the youngest of the 11 alleged victims in the previous trial.

Several jurors in the original trial said the majority had voted not guilty on all of the deadlocked counts, most by an 8-4 vote. They said that, without new evidence, a second jury easily could end up hung on the counts a second time.

Juror Brenda Williams said she believes the charges were filed “to satisfy the parents.”

“It’s upsetting because it appears that everyone is hysterical,” Williams said. “No one seems to be dealing with this rationally. I thought once you are found not guilty of charges that the charges are dropped. But nobody seems willing to drop this.”

By appearing on television, parents are “blowing (the charges) out of proportion all over again,” Williams said.

“I think they wasted enough money on that trial already,” said juror Henry Coleman, who found Buckey not guilty on all counts. “I think it’s a mistake. I don’t think they have any new evidence.”

Several jurors said they doubted that an impartial panel can be found.

“There will be very few people who would have no preconceived ideas about how the verdict should go, given the media exposure,” said juror Dante Ochoa, who also found Buckey not guilty.

Another trial might add to the plight of children, Ochoa said. “I feel badly for the kids,” he said. “I think the proceedings have traumatized the children more than the defendant allegedly has . . . I think this would put them in another round of trauma.”

Parental ‘Right’

But juror Danny Kindle, who voted for guilt on several charges, said parents had the “right” to another trial.

“I think it’s up to the parents,” he said. “If they think they can win their case, it’s up to them to decide if they want to continue. . . . If it were my child, I think I would do the same thing.”

In a separate action, Davis seeks in a 64-page motion to disqualify Pounders from hearing the remainder of the case against Buckey, claiming that the judge consistently demonstrated prejudice against both himself and his client.

As examples, he cited the judge’s having called him “an ass” during a bench conference, vowing to conclude the trial “even if it’s over your dead body,” and refusing to reimburse him for $47,000 in rental expenses for a secret office to secure documents.

Davis also claims Pounders manipulated, cut and prevented critical defense evidence, curtailed cross-examination, and made public statements that indicated he believed the defendants were guilty and that the children were victims.

The defense attorney alleged further that Pounders had made clear in discussions about a private guard for Buckey--who ultimately was freed on $1.5-million bail--that he had “minimal concern for Ray Buckey’s personal safety. Instead, he emphasized that an armed guard for Ray Buckey was more important to prevent ‘any more reoccurrences.’ ”

Pounders said he had expected the disqualification motion and had already begun preparing his formal response. It was not known when the disqualification matter would be heard.