Monday, January, 25, 2010
Page 7
PERSPECTIVES (Column)
Loss in McMartin Case Torpedoes Reiner’s Bid for AG Nomination
By ROGER M. GRACE
117th in a Series
Ira K. Reiner’s bid for a statewide office was thwarted by the actions of 12 citizens.
Had it not been for the verdict in the first of two McMartin Preschool child molestation trials in 1990, Reiner might have become state attorney general that year, maybe, later, governor.
The initial trial—with proceedings stretching over 28 months, followed by three months of deliberations—concluded on Jan. 18, 1990, with an acquittal of defendants Raymond Buckey and his mother, Peggy McMartin Buckey, on 52 counts of child molestation. The jury was hung on 12 molestation counts against Raymond Buckey and a single conspiracy count against him.
Reiner lost the Democratic nomination for attorney general that June to the lackluster DA of San Francisco, Arlo Smith—a balding man denominated by Reiner “Mr. Potato Head”—with the loss by the flamboyant Reiner being widely attributed to the outcome of the first trial. (The second one ended after the primary.)
It was understandable that the case would have proved of political significance. It had produced the longest trial in U.S. history, and was the most expensive, costing taxpayers about $15 million.
Charges against seven defendants in the McMartin case had been filed in 1983 when Robert H. Philibosian was DA. Reiner wrested the post from Philibosian in the primary in 1984, and took office in December of that year. In January, 1986, he dismissed charges against five defendants—the owner of the school, Virginia McMartin, and four teachers who, according to testimony by children at the preliminary hearing, had sexually molested them.
Dropping charges was obviously Reiner’s duty if he felt the evidence would not support convictions. However, perhaps as a slap at his predecessor for instituting the prosecutions against all seven, he made the public comment that the case against the dismissed defendants was “incredibly weak”…something the public would not have imagined based on news media coverage to that point.
This could have had no effect but to create public skepticism as to the strength of the case against the two remaining defendants. One would have to have wondered: if testimony by children against five of the defendants at the preliminary hearing was “incredibly weak” evidence, unworthy of trust, could it not be that charges against the remaining duo are also wobbly? A sounder approach, if defendants were to be dropped, would simply have been an explanation by the DA’s office that it wanted to zero in on those two defendants which the evidence showed bore primary responsibility.
On Sept. 18, 1990, Reiner would use such an approach in explaining the limited fraud prosecution of Lincoln Savings and Loan owner Charles Keating. An Associated Press report on that move in the Keating case says: “Reiner on Tuesday said only 20 victims were named to simplify the case and avoid confusing a jury.”
News reports in 1986 should similarly have reflected that Reiner eliminated five defendants “to simplify the case and avoid confusing a jury”…not because there were weaknesses in the case.
Reiner proceeded to undermine the McMartin prosecution further in 1986.
Broadcast on Nov. 4, 1986, on CBS’s “60 Minutes,” were comments by Reiner that charges initially brought by Philibosian were blown “massively out of proportion” to what had actually occurred. So, the public was now to cast from its mind notions of massive sodomizing of children, satanic rites, etc.
If Reiner believed the charges against the remaining defendants to be sustainable, he blundered in creating an atmosphere of public doubt concerning those charges. If he felt a wrong had been committed as to the charging of the dismissed defendants, he could have expressed that view, out of a sense of humanity, after proceedings against Raymond Buckey and his mother had concluded. However, for the district attorney to denigrate a prosecution in progress, cheapening it and jeopardizing it, was unconscionable.
Yes, jurors are questioned in voir dire; they are instructed to consider only what they hear in the courtroom, Yet, jurors are human; they are not insulated from common perceptions among the populace. The fact is that the district attorney of Los Angeles County uttered statements creating a climate that was decidedly adverse to a major prosecution by his office.
After the Jan. 18 verdicts came in, then-Los Angeles Superior Court Judge William Pounders, who presided, set a hearing for Feb. 2 at which time the DA’s Office was to announce whether it would pursue the unresolved charges against Raymond Buckey.
Reiner did not take any shots at the jury, but faulted the judicial system for permitting a trial to stretch over three years. Here’s his statement:
“The jury has spoken, and it is their verdict. In California, we have a criminal justice system that, quite frankly, does not work. It is a system that is insane.”
A Jan 27 editorial in the Richmond (Va.) Times-Dispatch observes:
“Los Angeles District Attorney Ira Reiner, a reputable prosecutor, is quite understandably frustrated. ‘The very idea that a trial that takes 2½ years can lead to a rational result is itself preposterous,’ he said.
“Logically, this view would require him to have dismissed the case at whatever point rationality became impossible, but we will not begrudge him the benefit of hindsight. Not guilty verdicts have a way of making prosecutors point up problems with the trial process which go unmentioned so long as the jury, in the end, bags the bad guys. Had the Buckeys been convicted instead of acquitted, Mr. Reiner’s quotes probably would have been about how the wheels of justice grind slowly, and so forth.”
The Los Angeles County Board of Supervisors on Jan. 30 voted 4-1, with then-Supervisor Edmund D. Edelman dissenting, to ask state Attorney General John Van de Kamp to consider taking over the prosecution of the case, and to call upon Reiner not to dump the case until the AG had a chance to look at it.
The next day, it was announced that Reiner had decided to retry Buckey. An article in that evening’s edition of the San Diego Union, reporting that decision, includes this analysis:
“[Reiner] has been widely assailed in legal circles for allowing the McMartin case to continue as long as it has.
“Legal scholars and observers have criticized the prosecution’s case as being poorly investigated, based on flimsy evidence and influenced by politics.”
A Feb. 4 editorial in the New York Times comments:
“Appearing on NBC’s ‘Today’ program last week, [Reiner] explained his decision to retry the 13 counts against Ray Buckey this way: ‘It is very clear to us that these defendants are guilty—I’m sorry, that this particular defendant is guilty—and that we firmly believe there is sufficient evidence to persuade a jury to that effect. So therefore we do go forward.’
“That’s an ethical outrage. Wittingly or unwittingly, Mr. Reiner’s remarks shatter Mr. Buckey’s hopes for an unprejudiced jury. Mr. Reiner, who wants to be the Attorney General of California, certainly has the discretionary power to retry the deadlocked charges. But Mr. Buckey, guilty or innocent, has the right to fair prosecution. And all Californians have the right to see that both the state and the defendant get a fair trial.
“Mr. Reiner’s nationally televised contempt for due process suggests he can’t be trusted to make a fair judgment about whether to retry the case.”
That strikes me as unduly harsh. Reiner’s declaration that there was “sufficient evidence to persuade a jury” to convict was innocuous; inherent in any decision to prosecute is the determination that there is sufficient evidence to convict. The statement that Buckey “is guilty” could be faulted as an effort to try the case in the press, but hardly amounts to an “ethical outrage.” Reiner did commit ethical outrages; this was not among them. If a prosecutor determines that there is sufficient evidence to convict—that is, to establish guilt beyond a reason able doubt—the prosecutor will necessarily believe that the person who is to be prosecuted is guilty…unless, of course, there is undisclosed exculpatory evidence.
On the other side, Buckey’s lawyer, Daniel G. Davis, termed the case “a stinky dead-bang loser.”
Although Rule 5-120 of the Rules of Professional Conduct, restricting public statements on unresolved cases, would not be promulgated for another five years, it wouldn’t have been contravened by either Reiner or Davis even if it had been in place. I don’t think it could be reasonably said that the statement of either carried with it “a substantial likelihood of materially prejudicing an adjudicative proceeding in the matter.”
It’s true that in argument before a jury, a prosecutor is foreclosed from expressing a personal view as to the defendant’s guilt. It’s explained, in cases, that such an expression implies knowledge of evidence that didn’t come before the jury. Be that as it may, the gist of Reiner’s comment on NBC was an expression of optimism that the jury would find that the evidence that did come before it sufficient to convict.
And it was refreshing that the DA, who had twice denigrated the state’s case, would express support for it.
Then, it happened again. Reiner publicly expressed pessimism. A New York Times article of March 5 quotes him as saying of the prosecution of Buckey:
“‘This is an uphill battle. There’s no question about that.”
That statement, as I see it, was an “ethical outrage” inasmuch as it could have had no effect other than to dampen the chances of Reiner’s client, the People, prevailing. While chest-beating is not apt to have any impact, a confession of weakness is.
The second trial got underway on May 7, 1990. There was a new judge on the case—Stanley Weisberg—and a new prosecution team.
In a debate with Smith taped Friday, May 11, and broadcast over the weekend, Reiner denied having offered any plea bargain to Raymond Buckey. Buckey’s lawyer, Davis, on Tuesday, May 15, publicly revealed that a tape recording had been surreptitiously made of prosecutors offering to accept a no-contest plea from Buckey, who would receive credit for time served (five years) while court proceedings were in progress.
“There was an offer,” Davis insisted. “The offer was made so that Reiner would be able to wave something to the voters to show that Ray Buckey is guilty.”
That night, a district attorney’s investigator made telephone contact with Weisberg, who was in New York.
On Monday, May 21, back in court, Weisberg recited for the record what had occurred, disclosing that the investigator “stated that Ira Reiner wanted to talk with me the next morning, and wanted to know if I would make myself available to receive a call.”
The judge—who set forth that he responded in the negative—remarked:
“I personally cannot conceive of any reason why Mr. Reiner attempted to communicate with me ex parte and off the record.”
The immediate response that day by Chief Deputy District Attorney Gregory Thompson, reported the next morning in the Los Angeles Times, was that “Mr. Reiner never had any intention of speaking with the judge,” and was only trying to ascertain his whereabouts in the event both sides wanted to talk with him via a conference call. It’s obvious that making personal contact with the judge was not a necessity in determining if he were in the hotel.
Reiner’s excuse, on Tuesday, as reported in the Wednesday Times, was that he had the investigator phone to “find out if the judge would be available for a conference call involving all the parties in the case” to discuss the flap over whether a plea bargain had been proposed, commenting:
“Unfortunately, that was misunderstood.”
The Times as much as called Reiner a liar, asserting in an editorial on that Wednesday that the DA’s explanation was “less than fully credible,” pointing out:
“The manner in which the call was made—in secret and through an investigator—was highly improper. Weisberg is a careful, fair-minded judge with extensive experience as a prosecutor. It is highly improbable that he misunderstood what was said to him on so critical a matter. Finally, the two deputy district attorneys prosecuting the Buckey case told the judge they knew nothing of the call.”
An article in the San Francisco Chronicle on June 9 recites:
“At 9 o’clock on election night, Ira Reiner went before the television cameras in the lobby of the Biltmore Hotel in Los Angeles and all but declared victory in his Democratic race for attorney general.
“At 3:30 the morning after, he had to eat his words.
“The suave and telegenic district attorney of Los Angeles, Reiner was perhaps the single biggest loser in the California primary elections. Once considered a shoo-in to be the Democrats’ nominee, Reiner in the end not only lost to a bald guy named Arlo from San Francisco—but he did it in the most excruciating and nail-biting fashion imaginable.
“Reiner, who never met a camera he didn’t like, took the unusual step of making himself available for TV interviews very early on election night, as soon as he saw some exit polls that showed him comfortably beating his rival, San Francisco District Attorney Arlo Smith.
“ ‘I think I’m going to win,’ Reiner said, in a report broadcast by political reporter Linda Breakstone of KABC-TV, ‘and by a fairly substantial margin.’ ”
He lost narrowly, attaining 48 percent of the vote in a two-man race.
The article notes:
“When the sordid and sensitive McMartin child molestation case blew up in Reiner’s face, Smith immediately jumped on the story, hammering away month after month after month at his rival’s handling of the trial.”
The retrial ended in a hung jury on Aug. 1, and Reiner opted not to try a third time to convict Buckey.
After the mistrial was declared, Reiner publicly stated that there were “fundamental problems with the evidence in this case,” but that he didn’t regret launching a retrial.
Copyright 2010, Metropolitan News Company