Children of Slain Father Won’t Testify

When Kimberly Delon hears a prosecutor make the case that she stabbed to death her husband and then buried him in the front yard of their Solana Beach home, she won’t have to see her own children--ages 3 and 5--on the witness stand.

The district attorney’s office wanted to subpoena the two children to testify at their mother’s preliminary hearing, which begins Monday, because the younger one was at home the night of the killing and might have heard or seen something, and the older child--who was at her grandmother’s that night--might be able to testify about domestic violence preceding the stabbing.

But Vista Municipal Judge Donald E. Rudloff, saying it is his job to “curb overzealous advocates,” on Thursday quashed the subpoenas of the two children at the request of defense lawyers.

He said nothing would be gained for the prosecution by forcing the two children to testify about what--if anything--they knew about the events leading up to the killing.

“The defendant has admitted the infliction of wounds. That being so, excuse the vernacular, it’s a slam dunk,” Rudloff said, for the prosecution to show that Delon should be bound over for trial in Superior Court.

If anything is to be gained by the testimony of the two children--even if they could be judged competent witnesses despite their age--it would likely benefit the defense, not the prosecution, the judge said.

The defense attorneys already have said that they don’t plan to call the children to the witness stand because of the trauma it would cause them--even though, according to the defense, their testimony about the events leading to the killing might benefit their mother.

Defense attorney Charles Goldberg accused Deputy Dist. Atty. Ann Barber of going on a “fishing expedition” by trying to force the children to testify about their parents’ relationship and the events surrounding the killing.

Such testimony, assuming that the children could articulate it, is inappropriate at a preliminary hearing because it is an effort by the prosecution to learn still more evidence in the case, rather than presenting what evidence it already has in hand, Goldberg claimed.

State laws--and district attorney offices--generally are biased in favor of protecting the welfare of children who are caught up in criminal trials, Goldberg said.

“Nowhere have I ever seen a case where a prosecutor has consciously and callously not considered the welfare of the children,” he complained.

But Barber said she wanted to question the children in the preliminary hearing because “you ask yourself, ‘Who are the witnesses present?’ and they include two persons--the two children.”

Delon, 34, is charged with the murder of her French-born husband of five years, Bernard Delon, 33, then burying his body in the front yard. Delon said she was being strangled by her husband--who she said had physically, emotionally and verbally abused her in the past--and struck out at him with a kitchen knife that night in self-defense.

She said that, in panic, she hid her husband’s body so it wouldn’t be seen by her children and called authorities the next day.

Rudloff noted Thursday that the purpose of a preliminary hearing is for prosecutors to show enough evidence to suggest to a reasonable person that there has been an unlawful killing, and that the defendant is a suspect. It is then up to a Superior Court jury to decide the facts of the case and, in this case, whether Delon was acting in self-defense.

The district attorney’s office, given Delon’s admissions, essentially has all the evidence it needs to compel a murder trial without dragging the children into it, Rudloff said.

Barber conceded after the hearing that the testimony of the two children isn’t necessary at the preliminary hearing, and she said she might still try to subpoena the children for the murder trial itself.

The children remain in custody of their mother, who is free on bail.

The defense attorneys had hoped that the district attorney’s office would simply drop the charges against their client because they thought the self-defense claim was clearly supported. To that end, and in a rare defense move, they allowed Delon to be interviewed at length by the prosecutor, and for that volunteered testimony to be used against her if the matter was criminally pursued.

But, after that interview, the D.A.’s office refused to drop the charges.