Partial Acquittal of Buckey Asked

In the first court day since prosecutors abruptly ended their case against McMartin Pre-School defendant Ray Buckey, defense attorneys asked the judge Monday to acquit Buckey of most charges on grounds that insufficient evidence was presented.

Los Angeles Superior Court Judge Stanley Weisberg said he will rule after hearing arguments from both sides today.

Defense attorney Danny Davis, in a 12-page motion, argued that the three alleged child-molestation victims who testified at Buckey’s retrial gave different versions of events than at his first trial. In one instance, Davis argued, a witness denied the specific acts with which the defendant is charged.

Davis petitioned for acquittal in five of the eight counts and indicated the defense may seek early rulings on the remaining counts at the hearing today. Davis maintains that the same facts cited in the first trial must be alleged at retrial, and that it would be unconstitutional to retry Buckey on counts not considered by the first jury.

“If the factual basis underlying the counts in this retrial are not supported by the essential factual basis elected by the district attorney in the first trial, this is not a retrial,” he wrote, adding, “It would be a completely distinct and novel trial proceeding. It would amount to a denial of due process and double jeopardy.”

Prosecutors acknowledged that the details of the alleged incidents are different this time. But, they said, all they must prove is that Buckey committed “a lewd and lascivious act with a child under 14”--be it fondling or penetration.

One child, for example, testified “not that I can remember” and “not that I know of” when asked if the former nursery school teacher had committed the acts alleged, although she said she did remember being fondled.

Another child testified that she was molested while sitting atop Buckey, who was lying on his back, not while sitting on his lap as alleged. That girl’s testimony, Davis said, is “insufficient for its gross unreliability.”

“It’s all surplusage (legally irrelevant),” Deputy Dist. Atty. Joe Martinez said of Davis’ arguments. “What difference does it make,” he asked, “whether Buckey was sitting up straight or reclining? Either way, he had the child on top of him.”

But Weisberg said the motion raises legal issues not aired before.