McMartin Judge Bars Tape of Girl’s Testimony

The judge in the McMartin Pre-School molestation trial ruled Wednesday that the videotaped preliminary hearing testimony of a 6-year-old girl cannot be used as a substitute for live testimony at the trial in progress, even though she told him she is “too scared” to take the stand.

“Her fear is genuine . . .,” said Los Angeles Superior Court Judge William Pounders after meeting with the child, now 10, in his chambers. “But she is not (legally) unavailable.

“She has made for herself a wise decision. But I will not allow her testimony to go to the jury unless it is live.”

The judge’s ruling means that the three counts of molestation involving the girl will eventually be dismissed unless she changes her mind later or the charges can be established through other means. The defendants face 99 counts of molestation and a shared count of conspiracy.

The jury was not present for any of the judge’s comments.

Prosecutors had hoped to introduce a 7 1/2-hour videotape of the girl’s testimony--which included extensive cross-examination--because the girl’s mother said she was terrified of facing the defendants, Raymond Buckey, 30, and his mother, Peggy McMartin Buckey, 61, and defense attorney Daniel Davis again.

The use of taped testimony is permitted under state law “if at the time of trial the court finds that further testimony would cause the victim emotional trauma so that the victim is medically unavailable or otherwise unavailable. . . .”

To ensure that the decision not to testify was the child’s own, Pounders had requested that she be brought to his chambers to be questioned by him in the presence of attorneys for both sides. The defendants, the public and the press were excluded from the session. Earlier in the week, after a subpoena was ignored, the judge threatened to have the girl brought to court by force.

35-Minute Conference

However, the girl appeared with her parents Wednesday and told Pounders during a 35-minute conference that she was still too afraid to testify again, although she could not specify the basis for her fear.

She did say that she was nervous and afraid of Raymond Buckey and found his staring at her “creepy,” Deputy Dist. Atty. Lael Rubin said in summarizing her position in court after the closed hearing.

The child rejected all hypothetical alternatives presented to her, such as testifying before the jury in an informal location other than a courtroom, outside the presence of the defendants and outside the presence of reporters or spectators.

“She said she was afraid of Ray and Peggy, that she was scared because she had been molested,” the judge said, noting that she was “red-faced and trembling” during the conference. “I was convinced quickly that the core of her concern is that she was molested,” the judge said.

Pounders admitted that he was concerned that he was on shaky ground under the U.S. and California constitutions, but that he had made a fair decision by interviewing the girl and determining her availability as a witness.

“It was not a fair decision,” Rubin said outside the courtroom. “It sends a message to defense attorneys that if you can intimidate a child at a preliminary hearing, you’ve got a sure way to prevent his or her testimony at trial.”

She refused to comment on whether the child would become a witness later.