McMartin: System on Trial Again

It’s true that hard cases can make bad law, but they frequently provide instructive examples. The never-ending McMartin Pre-School case, for instance, has become, among other things, virtually an ongoing experiment in the criminal court’s ability to administer justice in the glare of massive--frequently prejudicial--publicity.

There are two kinds of pretrial publicity: One is the sort of fair-minded reporting that respects both the public’s need for information on the conduct of their police and courts and a defendant’s right to a fair trial. Such reporting is unlikely to compromise the administration of justice. There is by contrast a strong suspicion that sensational, biased journalism can have a distorting impact on a criminal trial and, particularly, on its jury.

Too bad that much of the pretrial publicity in the McMartin case was of the latter sort. The fact that the criminal justice system was able to cope with it was attributable to the competence of the defense and prosecution and the hard-working judge who was willing to go to great--and expensive--length to impanel an unbiased jury.

Obtaining such a jury required financing usable research into the publicity’s impact on prospective jurors. It required the judge to allow an unusually lengthy and wide-ranging voir dire to ferret out biases unrecognized by the potential jurors themselves. Finally, it demanded a pool of prospective jurors large enough to contain those rare individuals able to set aside what they have read, seen and heard and to decide a case solely on the basis of the testimony given in court.

The fact that such individuals are there to be discovered should be a source of enduring pride to the American people and a lasting vindication of the Founding Fathers’ faith in the jury system. But, as the McMartin experiment already has demonstrated, finding those people adds substantially to the length and cost of a criminal trial.

Moreover, the decision to refile the 13 unresolved charges against Raymond Buckey has pushed the McMartin experiment into uncharted territory. What impact will all the post- trial publicity have on prospective jurors, particularly since much of it, especially in the electronic media, has suggested that acquittal was tantamount to injustice? Let’s hope that the forbearance, will and wisdom of the criminal justice system will overcome the hurdles once again.