Man to Go on Trial in Slaying of 8-Year-Old : Courts: Former day-care aide Gregory Scott Smith is also charged with abducting and molesting the Northridge boy. There was an earlier mistrial.

TIMES STAFF WRITER

One hazy March morning last year, Ventura County firefighters sped to a grassy field in Simi Valley to answer a motorist's report of a brush fire.

Instead, they found the body of a boy, gagged with duct tape, soaked with gasoline and burned beyond recognition. It was 8-year-old Paul Bailly of Northridge.

Tuesday, after 19 months of investigation, court delays and a mistrial, former Canoga Park day-care aide Gregory Scott Smith will go on trial in Ventura County Superior Court on charges of kidnaping, child molestation, murder and arson in connection with the slaying.

Two of Ventura County's top criminal attorneys, appointed by the court to defend Smith, 23, plan to argue that he lacked the wits to commit murder.

James M. Farley and Willard P. Wiksell have said a brain disorder kept Smith from talking until age 6 and left him too mentally handicapped and immature to have intentionally killed Paul.

Prosecutors, however, want Smith condemned to die.

Deputy Dist. Atty. Peter D. Kossoris, the senior prosecutor in the Ventura County district attorney's office, and co-prosecutor Gregory D. Totten have declined to comment publicly on the case.

But Totten outlined the prosecution's case in court last week for Judge Steven Z. Perren. He argued that Smith is a sexual sadist who raped and murdered Paul for sexual gratification and vengeance.

Totten said the evidence shows that Smith was sexually attracted to Paul, and that he plotted revenge on the boy who made complaints that helped get Smith fired from a Northridge latchkey program.

Investigators found in Smith's possession a list of boys with Paul's name at the top, marked with a star, Totten told the court.

They found newspaper clippings of the McMartin case, in which day-care workers finally were exonerated of molestation charges, and the case of Charles Rothenberg, convicted of setting fire to his son, Totten said.

And Totten told the court that investigators found materials in Smith's trunk--rope, twine, rubber gloves--that a psychiatrist will testify Smith collected as a "rape kit."

Paul disappeared on March 23, 1990, shortly after his mother dropped him off at Darby Avenue Elementary School.

The prosecutors have said that Smith bundled Paul into his Honda and drove away.

They said Smith handcuffed Paul, stuffed a blue rag into his mouth and sealed it by wrapping four layers of duct tape around his head.

They said he sodomized the boy.

They said Smith choked Paul, who threw up into his gag and suffocated on his vomit.

Then, prosecutors said, Smith took Paul's body to the field east of Black Canyon Road near the Santa Susana Knolls, poured gasoline over it and set it afire.

"The defendant chose to use devices that . . . would enable him to dominate, immobilize, degrade, humiliate and cause pain to Paul," Totten told the judge. "The manner in which the murder was committed was also designed to thoroughly frighten and intimidate Paul in a way that would provide potential arousal and gratification for the defendant."

But defense attorney Farley said the prosecution's theory is invalid.

"I understand their theory, but in knowing Greg Smith, I don't think that's the case," Farley said in an interview Friday. "I don't think he's a hurter. . . . While he's able to understand what's going on so he can take part in a defense, I'm not sure he was able to form the requisite intent to commit the crime of murder in the first degree."

Farley said Smith could have kept the clippings and the list of boys for innocent reasons, and he pointed out that there were also stars next to the names of other boys on the list.

Meanwhile, Paul's mother and father had a lawsuit served last week on the Los Angeles Unified School District, accusing the child-care program and its officials of negligently causing their son's death.

"This is just a heinous thing that happened to the child," said attorney Kim Medrano, who represents Mary Bailly and Glenn E. Cebulak.

"The defendants . . . had a duty to protect Paul Bailly and other latchkey program students," the suit contends. "Gregory Scott Smith . . . should have been known to the defendants to harbor dangerous and harmful criminal or anti-social behavior."

The school district rejected those allegations last October when they were filed in the form of a civil claim.

School officials testified last spring that Smith was fired because of conflicts with supervisors and improper behavior with the children that he supervised.

Before his dismissal, Smith--who had worked at 10 of the 17 day-care centers operated by the 31st District PTSA in the San Fernando Valley--had been disciplined for improperly punishing Paul and insulting him.

Kossoris said in court proceedings last spring that Smith kidnapped Paul "to cause trauma and suffering to the victim before he was killed and . . . to get revenge on Darby School and Hal Kuhn," the school official who fired Smith for improper behavior toward the children.

Farley and Wiksell have conceded that the physical evidence against Smith is strong:

Witnesses testified that they spotted a gasoline can in Smith's house the day before Paul's death. And the day after, his mother found a pair of blue shorts, from which investigators said the cloth gag had been cut.

Prosecutors also hope to use the testimony of jailhouse informant Tracy Ray Prell, but Perren will hear arguments today on the admissibility of the testimony.

Prell, 26, was serving a two-year jail sentence for misdemeanor battery and obstructing a police officer when he met Smith in Ventura County Jail and then told prosecutors that Smith had confessed to killing Paul.

That revelation led to a mistrial: Smith's public defender, who also represented Prell, disqualified himself from the case. Perren then ordered a new trial and appointed Farley and Wiksell to defend Smith.

Prell testified at Smith's second preliminary hearing last spring that the defendant said of the crime, "I was obsessed. It was like a dream. I did it. I was obsessed. It was like a dream. I did it."

Prell testified that Smith told him that he took Paul from outside the latchkey program to a remote field in Simi Valley and pulled the boy out of the car.

Smith admitted that he gagged Paul, threw him in the trunk of the car, but later looked in the trunk and saw the boy had died.

"He panicked," Prell testified. "He threw the body out and poured gasoline on it. He lit the matches and it went up in flames. . . . He wanted to destroy the evidence."

But Totten told the court last week that a psychiatrist will testify that Smith's decision to burn Paul's body "was an act not only to destroy evidence, but may well also have been motivated by sexual sadism."

The crime, Ventura County law enforcement officials and defense attorneys said, is the worst homicide that the county has seen since 2-year-old Amy Sue Seitz of Camarillo was found molested and strangled in the driveway of a Topanga Canyon home in 1978.

Amy Sue's killer, Theodore Frank, is on Death Row and is scheduled to appear in Orange County Court on Friday to have his execution date set after his appeals went as far as the U.S. Supreme Court without success.

Tuesday, Ventura County Judge Perren will begin questioning potential jurors for Smith's case about their views on the death penalty.

Farley and Wiksell fought for and won Perren's approval to have the jurors questioned individually, arguing that if they could hear each other's views on the death penalty, they would begin repeating certain answers to get themselves excused from or included on the panel.

Last week, Farley told the court, "I want 12 people up there I can talk to, not 12 people that have made up their minds."

He added on Friday, "I have a goal. And that's to keep him out of the gas chamber."

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