McMartin: “No” Doesn’t Mean No?

During five grueling weeks of examination and cross-examination, Kee MacFarlane tried valiantly to defend her use of aggressive interviewing techniques which included play with dolls and puppets. Since some of these were videotaped, defense attorneys could easily show how she refused to take no for an answer when children repeatedly told her that they were not abused. She would insult them and cajole them when they didn’t give the response she wanted, and praise them when they did. Moreover, she asked them numerous leading and suggestive questions, indicating that other children had told them something that they should corroborate:

MacFarlane [playing with a monkey doll/puppet]: Mr. Monkey is a little bit chicken, and he can't remember any of the naked games, but we think that you can, 'cause we know a naked games that you were around for, 'cause the other kids told us, and it's called Naked Movie Star. Do you remember that game, Mr. Alligator, or is your memory too bad?

[eight-year-old] Boy [playing with an alligator doll/puppet]: Um, I don't remember that game.

MacFarlane: Oh, Mr. Alligator.

Boy: Umm, well, it's umm, a little song that me and [a friend] heard of.

MacFarlane: Oh.

Boy: Well, I heard out loud someone singing, "Naked Movie Star, Naked Movie Star."

MacFarlane: You know that, Mr. Alligator? That means you're smart, 'cause that's the same song the other kids knew and that's how we really know you're smarter than you look. So you better not play dumb, Mr. Alligator.

Boy: Well, I didn't really hear a whole lot. I just heard someone yell it from out in the--someone yelled it.

MacFarlane: Maybe. Mr. Alligator, you peeked in the window one day and saw them playing it, and maybe you could remember and help us.

Boy: Well, no, I haven't seen anyone playing Naked Movie Star. I've only heard the song.

MacFarlane: What good are you? You must be dumb.

Dr. Astrid Heger’s use of the dolls and puppets yielded more or less the same thing:

Dr. Heger: Maybe you could show me with this, with this doll [puts hand on two dolls, one naked, one dressed] how the kids danced for the Naked Movie Star.

Girl: They didn't really dance. It was just, like, a song.

Dr. Heger: Well, what did they do when they sang the song?

Girl: [Nods her head]

Heger: I heard that, I heard from several different kids that they took their clothes off. I think that [first classmate] told me that, I know that [second classmate] told me that, I know that [third classmate] told me. [Fourth classmate] and [fifth classmate] all told me that. That's kind of a hard secret, it's kind of a yucky secret to talk of-but, maybe, we could see if we could find--

Girl: Not that I remember.

Dr. Heger: This is my favorite puppet right here. [Picks up a bird puppet] You wanna be this puppet? Ok? Then I get to be the Detective Dog…We're gonna just figure it all out. Ok, when that tricky part about touching the kids was going on, could you take a pointer in our mouth and point on the , on the doll over here, on either one of these dolls, where, where the kids were touched? Could you do that?

Girl: I don't know.

Dr. Heger: I know that the kids were touched. Let's see if we can figure that out.

Girl: I don’t' know.

Dr. Heger: You don’t' know where they were touched?

Girl: Uh-uh. [Shakes her head]

Dr. Heger: Well, some of the kids told me that they were touched sometimes. They said that it was, it kinda, sometimes it kinda hurt. And some [of] the times, it felt pretty good. Do you remember that touching game that went on?

Girl: No.

Dr. Heger: Ok. Let me see if we can try something else and -

Girl; Wheeee! [Spins the puppet above her head.]

Dr. Heger: Come on, bird, get down here and help us out here.

Girl: No.

Dr. Heger: Bird is having a hard time talking. I don't wanna hear any more no's. No no, Detective dog we're gonna figure this out.

It’s probably as clear to you as it is to me that that little girl would have rather been just about anywhere else at that moment. It’s probably just as clear that MacFarlane and Dr. Heger are basing this interview technique on Dr. Roland’s Child Abuse Accommodation Syndrome (CAAS) hypothesis. All three, in their assistance to the prosecution, operated on the presumption that abused children are in a state of denial, possibly because no one believed them earlier, possibly because they are ashamed at what happened, or because they might have taken seriously the perpetrators’ threats of violence to them and their family should they squeal. While one might expect some reluctance on the behalf of victims of sexual abuse (at any age) to acknowledge the reality or extent of the crimes against them, one would also have to wonder at what point “no” really means no. But as you can see, Dr. Heger, for one, wouldn’t accept “any more no’s.”

Another prosecution expert witness, Dr. William Gordon, testified that after reviewing over 300 photographs of the McMartin children he came to the opinion that they had been molested. He pointed out instances of white coloring which he claimed represented scar tissue. The defense could prove, however, that these discolorations actually resulted from light reflecting from the camera itself. Not content to leave it at that, defense lawyers then got Dr. Gordon to admit that he was neither a pediatrician nor a diagnostician, and that he had participated in over 300 pedophilia cases by then. This led the jury to dismiss Dr. Gordon as a quack obsessed with child abuse.

The defense also got their own expert witness, Dr. David Paul, to review Dr. Heger’s examinations. Dr. Paul contradicted Dr. Heger saying that he saw no evidence of molestation from her records in virtually all the cases. As for MacFarlane, live and on videotape, she pretty much impeached herself.

Prosecutors produced another witness, a former cell-mate of Ray Buckey named George Freeman. Freeman testified that Buckey told him that he repeatedly raped little kids at McMartin Preschool, and had buried incriminating photographs of the trysts in South Dakota (how Buckey ever got there was never explained). He also claimed that Buckey bragged about having sex with his sister and shipping porn to Denmark.

Normally, I don’t find jailhouse snitches very compelling. After all, they’re trying curry favor with the DA’s office, and are liable to say anything. Freeman was no exception. Authorities caught him trying to flee the country. A veteran jailbird, he later confessed to perjuring himself in tons of cases, including McMartin.

In short, the prosecution’s evidence was weak to begin with, and suffered from the loss of testimony by Bynum and Johnson. Their case left the jury rather unimpressed. On 13 January 1990, they found not guilty on fifty-two of the sixty-five charges (including all of those against Peggy Buckey), while they hung on the remaining thirteen. Out of those thirteen charges, the jury favored Ray Buckey on twelve, and sided against him on one. As foreperson Luis Chang explained, “The interview tapes were too biased; too leading. That’s the main crux of it.”

D.A. Ira Reiner decided that he would retry Ray Buckey on those remaining charges. While that meant Ray could still wind up in prison after all was said in done, the acquittal on the bulk of the charges afforded him the opportunity to be released on bail after five years in jail.