McMartin Attorneys Charge Misconduct, Seek Case Dismissal

Charging “outrageous governmental misconduct” and numerous “criminal acts” by the Los Angeles County district attorney’s office, defense attorneys in the McMartin Pre-School molestation case moved Wednesday for dismissal of all charges against the two defendants facing trial.

Should dismissal be denied, the motion seeks an order prohibiting Dist. Atty. Ira Reiner from prosecuting the case further. Such an order would require that the case be taken over by the state attorney general or a special prosecutor.

“The facts (in the motion) paint an ugly picture of a prosecution team which has completely lost sight of its obligation to seek justice and which instead lied and deceived the court, defense counsel and the parents of the complaining witnesses in this case,” wrote attorney Andrew R. Willing, representing defendant Peggy McMartin Buckey.

“This deceit worked to the detriment of not only the defendants, but of the entire judicial system,” Willing wrote.

A hearing on the motion is scheduled Nov. 24 before Los Angeles Superior Court Judge Roger Boren, whom the defense is also seeking to disqualify on grounds that he is biased toward the prosecution.

The 118-page motion, filed jointly by defense attorneys Willing, Dean R. Gits and Daniel G. Davis, relies heavily on information provided to them by former Deputy Dist. Atty. Glenn Stevens, one of the three prosecutors originally assigned to handle the preliminary hearing, and on taped interviews with Stevens turned over to the defense by a Beverly Hills screenwriter.

The allegations pit Stevens’ word against that of Deputy Dist. Atty. Lael Rubin, chief of the McMartin prosecution team, who said late Wednesday that she had not seen the motion and would have no comment. Reiner said he would comment “in due course.”

After former prosecutor Stevens voiced doubts about the guilt of some McMartin defendants last fall in several interviews with The Times, he was taken off the case. He left the district attorney’s office in February to join a group of criminal defense lawyers.

The motion, which accuses Rubin, Stevens and others of conspiracy and civil rights violations, does not focus on the guilt or innocence of the defendants, who are charged with 101 counts of child molestation and conspiracy, but rather on alleged prosecutorial misconduct during the 18-month preliminary hearing.

However, the courts have held in numerous cases cited by the defense in its motion that charges may be dismissed when prosecutors are found guilty of “outrageous government conduct,” regardless of the nature of the charges faced by the defendants.

The U.S. Supreme Court has loosely defined such conduct as any action that violates “fundamental fairness, shocking to the universal sense of justice.”

The motion also asks that if Boren decides against dismissal or removal of the case from the district attorney’s office, that prosecutor Rubin be ordered off the McMartin trial by the court.

Rubin is scheduled to try the case with her boss, Roger Gunson, head deputy of the district attorney’s sexual crimes and child-abuse division.

Defense attorney Davis argued that Rubin should be disqualified because of what he called her “intense personal and emotional, as opposed to a merely professional, involvement” in prosecuting the case. He said this involvement stems from her “affair” with a Superior Court judge whose child attended McMartin, creating a conflict of interest.

Specifically, the motion alleges that:

- McMartin defendants Raymond Buckey and his mother, Peggy, were held without bail on a charge on which the district attorney never intended to proceed, a grand jury indictment that had been superseded by a broader criminal complaint. Rubin “lied” to the court as a ploy to keep Peggy McMartin Buckey in jail for nearly two years, although bail had been set for her on the larger complaint.

- Prosecutors “intentionally suppressed and withheld material evidence . . . from the grand jury which tended to exonerate” the defendants. The evidence is notes of interviews with the mother of the child who initiated the McMartin investigation. The woman has a history of mental illness, and some of the molestations that she alleged took place occurred while Raymond Buckey was in jail and remain “completely unproved,” the defense said.

- Prosecutors announced that they were ready to begin the preliminary hearing, when in fact they were still putting their case together, to keep the defendants from being released. They then “filled” court time with unnecessary witnesses to stall for time.

- To gain their cooperation and consent, Rubin “intentionally misrepresented” to parents of children allegedly molested at the Manhattan Beach nursery school that the children would never have to testify in front of the defendants.

- Rubin “intentionally misrepresented” to the court that specific children were available to testify by closed-circuit television, when in fact they were not, resulting in a delay in the proceedings of more than four months. Eventually one child testified by television.

- Rubin arranged with the Sheriff’s Department to keep Peggy McMartin Buckey and three other former female defendants in the McMartin case from having any contact with each other or other inmates at Sybil Brand Institute for Women, then lied to the court about her action.