Hearing Drags On : Judge Urged to Restrict McMartin Testimony

As the second child witness in the McMartin Pre-School molestation case begins his eighth day on the witness stand today, prosecutors say the time has come for the judge to consider imposing restrictions on lengthy cross-examination.

The preliminary hearing has taken six months so far--and cost more than $1 million--and four of the seven defense attorneys still are waiting their turns to cross-examine the 10-year-old boy now testifying. And he is only the second of 41 alleged victims to take the stand.

The prosecution says it plans to call the remaining 39 children and several other witnesses.

Defense lawyers have said they plan to present their own case-- known as “an affirmative defense�--an unusual move at a preliminary hearing, which is held to determine whether there is enough evidence to warrant a trial.

Planning on Witnesses

In that defense, the lawyers say, they plan to call as witnesses several former teachers, medical experts of their own and others knowledgeable about the case.

Most of the defense attorneys agree that the charges will not be dismissed at the preliminary hearing and that there will be a trial.

But they are conducting a very thorough cross-examination now, they say, both because it is a rehearsal for the trial and because it may be their only opportunity to question some of the children. The district attorney’s office is video-taping the children’s testimony for use at the trial should any of them be unavailable then for psychological or other reasons.

As cross-examination drags on, Municipal Judge Aviva K. Bobb already has cut off some lines of questioning as irrelevant or too time-consuming for whatever evidence they could yield.

Contempt of Court

She has held two attorneys in contempt of court and threatened others in an effort to keep order in a courtroom in which 10 attorneys are usually in loud disagreement.

But Deputy Dist. Atty. Christine Johnston last week complained about the defense and urged the judge to go further.

“At some point this--the amount of detail we are getting into and the things we are going through for the second time--becomes harassment. It’s clear why they (defense lawyers) are doing it. But your honor, this is a preliminary hearing.�

Johnston asked Bobb to consider using the power granted judges by the Evidence Code “to exercise reasonable control over the mode of interrogation of a witness (to make it as) rapid, distinct and effective for the ascertainment of the truth as (possible), and to protect the witness from undue harassment or embarrassment.�

The defense attorneys contend that their ability to cross-examine already has been curtailed too much, and on several occasions they have tried to use that argument as grounds for striking the witness’ entire testimony.

Judge Made Decision

“I cannot help it I was joined in,� said Dean Gits, attorney for defendant Peggy McMartin Buckey, referring to the judge’s decision to hold a combined preliminary hearing for all seven defendants in the case.

“It’s my first opportunity� to cross-examine the 10-year-old witness, he said Thursday. When prosecutors objected that many of his questions already had been asked and answered, he protested, “not by me. “

Judges in other cases have sometimes found it necessary to cut off questioning and arguments that appeared to be going nowhere. For example, during the Tate-LaBianca murder trial, Charles Manson’s attorney was instructed by the judge to wind up his cross-examination of one witness after seven days of questioning, and during final arguments was abruptly cut off and told to finish in the next two minutes.

Six Days of Questioning

Direct examination of the present witness in the McMartin case lasted only 90 minutes. However, he has been questioned for more than six days by three defense attorneys about such things as precisely when he forgot certain events or remembered them, the name of the newscaster whose report of McMartin arrests he saw on television and whether he sucked a pacifier.

They want to know whether he recalls his teacher’s guitar playing, how tall the pony was before he allegedly watched it hacked to pieces, whether he’s ever seen any X-rated movies, and how well he can read.

And he has been asked about the dimensions, color, texture and locations of fences, church altars, light fixtures, doors, rooms and other objects he may have noticed during the alleged activities of six years ago.

The defense contends he remembers too much or not enough to be telling the truth, and hopes that his bizarre stories of animal sacrifices at a church and sexual abuse at a grocery store will cast doubt on his account of having been molested and photographed by teachers at the Manhattan Beach nursery school.

Physical Evidence Reported

Three physicians have testified that they found physical evidence of sexual abuse in most of the 41 children named as complaining witnesses in the case.

The seven defendants, charged with 208 counts of molestation and conspiracy beginning in 1978 (earlier allegations are beyond the six-year statute of limitations), are Virginia McMartin, 77; her daughter, Peggy McMartin Buckey, 58, and grandchildren, Peggy Ann Buckey, 28, and Ray Buckey, 26; Betty Raidor, 65; Mary Ann Jackson, 57, and Babette Spitler, 36.

For several days last week attorneys argued over whether excerpts of a videotaped interview conducted with the boy by a therapist a year ago could be played in court. They were finally played--only to turn out to be largely unintelligible. The witness said he didn’t remember what he had said and couldn’t hear his own words on the tape; the judge said the recorded voices were unclear; the prosecution and defense disagreed over what the exact words were.

The few segments that could be heard revealed several inconsistencies between what the child told the therapist and his present testimony, inconsistencies labeled “significant� by defense and “absurd� by the prosecution.

Cowboys and Indians

For example, one excerpt showed the child describing a game of cowboys and Indians as one in which defendant Ray Buckey was a cowboy and the children were Indians. The young witness agreed that he had said that at the time.

Then attorney Bradley Brunon, who represents school founder McMartin, pointed out to him that on direct examination little more than a week ago he had said that the children had been cowboys and the teachers Indians.

Brunon leaned forward on the podium and looked intently at the freckle-faced youngster. “Which way was it?� he asked.

The child thought for a few moments, then replied: “We were the Indians and they were the cowboys.�

The witness has insisted that the molestations, naked games, photography, unusual field trips and animal killings he has described really happened. He explained that when he was first interviewed at Children’s Institute International, a Los Angeles diagnostic and therapeutic center for child-abuse victims, he had put much of his McMartin experience as a 3- and 4-year-old out of his mind.

‘I Couldn’t Remember’

“When I said that,� he said about one apparent discrepancy between the tape and his testimony, “I had forgotten about it for a couple of years. I couldn’t remember that happening right at that time.�

He said that as he was questioned, memories were triggered that he has been trying to sort out ever since. “I have been thinking, trying to remember more about the things that happened. It’s become a bigger situation. I’ve been thinking more to try to figure out what happened,� he said.

He said that when confronted with questions or suggestions about what allegedly happened at the school, “I’d make a picture of what that looked like in my mind and think, ‘Does that picture look familiar?’ � Sometimes, he said, he then remembered again, and sometimes differently from at first.

Asked which of two versions of the cowboys and Indians game is the truth, the one on the year-old tape or the one this month in court, the boy said: “The one I believe more is the one I said during my testimony.�

‘Brainwashing’ Alleged

Defense attorneys contend that therapists, parents and prosecutors subtly “brainwashed� the children into believing that they were remembering what they were only imagining.

The McMartin case, which is expected to last years, already has cost the county more than $1 million, according to county auditors.

By year’s end, according to figures released last week by Audit Division chief J. Tyler McCauley, more than $910,000 had been spent. The bulk of that, $546,000, was for the district attorney’s investigation. Other costs included $200,000 for Municipal Court, $95,000 for court-appointed attorneys, and $68,000 for the public defender’s office.

Costs so far this year, plus late attorneys’ bills from last year, have pushed the county bill past $1 million, according to Bill Eng of the Audit Division, making it one of the most expensive prosecutions in Los Angeles County history before it even gets to trial.