We Believe the Children

by Richard Beck

  Feeding off the momentum of the new religious movements that proliferated around the country after the 1960s, pseudo-scientific health and self-improvement fads claiming links to ancient civilizations and means of tapping into different currents of energy had become popular. Pyramid power was one of them, and Ray seemed at least slightly embarrassed about having to discuss his youthful experiments in public. Davis kept the mood light. “Is it possible, Mr. Buckey, that pyramid power drove you to molest children?” he asked.

  “No.”

  “Is it possible that pyramid power blanked your mind out so that you forgot horrible events like molesting children?”

  “No.”11

  Ray also had a special kind of pyramid, amusingly called a “raydome,” that was supposed to be more powerful than the normal kind. When Danny Davis asked Buckey to specify the extent of the raydome’s capabilities, Dean Gits tried to raise an objection, but he broke down laughing after a second or two. “Laughter is not an objection,” Judge Pounders said. “I’m glad you can still laugh.”12

  Buckey also testified about a weekend he spent selling pyramids at a healthy eating/UFO convention in the fall of 1982. Prosecutors wanted to poke holes in Buckey’s claim that as a result of attending this conference, he had had sex with an adult woman. Working the pyramid booth in a Reno, Nevada, convention center, Buckey met Barbara Dusky, who was thirty years old and divorced. The pair hit it off, and the next day they set out together for Pyramid Lake, a body of water formed from headwaters that drain off Lake Tahoe. They stopped at a motel called the Fantasy Inn on the way, and the manager there gave them a room with a round bed, a heart-shaped bathtub, and red velour on the walls. They took a bath together. “And is it fair to say,” Lael Rubin asked on cross-examination, “when the two of you took a bubble bath together, that neither of you had your clothes on?”

  A: Neither one of us had our clothes on.

  Q: Is it fair to say that during the time that you and Barbara were taking a bubble bath together in this heart-shaped tub, that you didn’t have an erection?

  A: I don’t remember if I had an erection at that time.

  Q: Is it fair to say that being in this heart-shaped tub, this bubble bath with Barbara did not sexually arouse you?

  A: I think it did.

  Q: Now, is it fair to say, Mr. Buckey, that after the two of you took this bubble bath together, you did not have any sexual relationship with her?

  A: Oh, Miss Rubin, we had a sexual relationship.13

  This was Ray’s first sexual relationship, actually. He told Lael Rubin that he was “on cloud nine” with Barbara, around whom he felt “just like a puppy dog.”14 The following day the couple completed their trip down to Pyramid Lake, where they were baptized in the nude by a traveling minister. They saw each other a few more times in Manhattan Beach before going their separate ways.

  Ray didn’t want to ask Barbara Dusky to offer sworn testimony about a sexual encounter that had taken place eight years earlier, but Lael Rubin did. Dusky spoke warmly and affectionately about Ray, whom she described as an “inexperienced” lover. “[She’s] straight out of central casting,” Rubin said to reporters after Dusky’s testimony. “The soaps ought to sweep her up while she’s still in California. She’s lying about everything.”15 Although Dusky’s testimony probably did more to humanize Ray, at least from a sexual standpoint, than anything else in the case, it is hard to fault the district attorney’s office for thinking to call her as a witness. Buckey often struck those around him as a little odd romantically, which is to say that some of his mother’s friends worried he was gay. One family friend who shared this worry believed that Ray’s repressed homosexuality would make him vulnerable during his time in jail, and when McMartin parents first received word of the allegations, one of them tried to console Peggy McMartin Buckey by saying that anybody could have a gay son.16 Prosecutors never openly expressed a belief that Buckey was gay, but the idea was obviously implied by Rubin’s incredulous reactions to the notion that Ray had once slept with a woman. The district attorney’s office also put three investigators on the stand to testify that when Ray once spent an afternoon relaxing on the lawn of a local college, he rather suspiciously had not stared and gawked at the female students; instead, he spent time watching children run on the playground.17

  Ray’s imagined homosexuality had the potential to make a significant impact on the trial’s outcome, as actual homosexuality helped send day care workers to prison in a number of other cases. In Maplewood, New Jersey, Kelly Michaels’s attorney believed it was absolutely necessary to conceal her same-sex romance from the jury, and this made her defense much more difficult.18 Michaels could not, for example, discuss the details of a doctor’s visit she once made, the reason being that a lesbian friend had accompanied her to the appointment. Michaels believed that discussing the visit in court risked revealing her friend’s homosexuality and, by extension, her own sexual history. That Michaels seemed unwilling to testify about the details of this visit was and still is regarded as suspicious by some of her critics.19 In Pittsfield, Massachusetts, Bernard Baran was accused and prosecuted specifically because a mother’s boyfriend, accused of abusing a small boy, redirected suspicion toward the gay nineteen-year-old. A number of people recalled the man expressing disgust at the idea of a gay man supervising his girlfriend’s son in the weeks preceding his allegations, and Baran was sentenced to three life terms after his conviction.20 This was another element of the day care and ritual abuse hysteria’s political conservatism. The idea that gay sexuality necessarily included the desire to abuse children had been a founding myth of homophobic sex panics going back to World War II. By implying he was gay, Ray Buckey’s prosecutors were simply pursuing a tactic with a proven record of success.

  McMartin’s slow pace had always been a curiosity and an annoyance, but as spring gave way to summer, the trial’s length became a phenomenon in its own right. Journalists wrote about its duration and cost in almost unbelieving tones, and jurors progressing through their third year of civic service developed elaborate inside jokes and small ways of expressing frustration, such as bringing a birthday cake into their waiting room on the trial’s anniversary. They did crossword puzzles to kill time during the many long bench conferences and breaks in testimony, and then they switched over to Uno. Having mastered and grown tired of Uno, they learned to play chess. One juror lost his wife and then remarried during the trial, and other jurors attended the wedding. Judge Pounders nervously monitored the jury for signs of discontentment and psychological stress. One member announced on a winter morning that she was buying a new car, and she asked her fellow jurors to help her come up with a personalized license plate relating to the trial. They wrote their suggestions on a chalkboard: $10ADAY (a juror’s wage), JURY PRO, HUNGJRY, and ITEM352 were among them, the last referring to legal code for an objection to a prejudicial question. Pounders was so unnerved by this that he conducted a day-long inquiry into the license plates’ meaning, interviewing jurors one by one.21 When one juror said he needed to leave or else lose his job in tech support, Pounders hired him to fix computers for Los Angeles County.

  Four of the original eighteen jurors (twelve primary members and six alternates) had been dismissed by the summer of 1989. In July a fifth juror learned she needed a gallbladder operation that entailed at least a month-long recovery. Pounders was frantic. With only one alternate remaining, two more jurors gone would mean the end, and Pounders had developed a deep pessimism about the trial’s effects on those who surrounded it. “This case, in my view, has poisoned everyone who had contact with it,” he said. “By that I mean every witness, every litigant, and every judicial officer.”22 He noted Judy Johnson’s descent into alcoholism and death. There was also the defense investigator who committed suicide one day before he was to begin testimony in 1987. Pounders had a grim interpretation of the fact that so many jurors had dropped out for medical reasons: “I thin
k it’s due in part to the pressure,” he said.23 “There is a strong possibility that we’re going to lose [another] juror before very long. In my view, it is a probability that this case will end in a mistrial.”24

  Spooked by his premonitions of judicial collapse, Pounders tried to get through the trial’s final months as quickly as possible. Refusing to hear witnesses was the most effective way to hurry things along, and as the prosecution had rested its case some months ago, this meant refusing to hear defense witnesses. Pounders prevented more than two dozen people from taking the stand, among them two physicians ready to testify that one of the McMartin children had originally accused his father of molesting him, not Ray Buckey.25 Danny Davis and Dean Gits were incensed at Pounders and much less worried than he about the prospect of further jury dropouts. “They look healthy to me,” Davis said, “and the attrition rate over a long haul indicates that we’ll have plenty of jurors and extras when it’s over. I don’t join in this kind of karmic doom that emanates from the judge.”26

  That their irritation had at least some justification can be seen in the fact that the defense was only allowed to present one medical expert in response to the six expert witnesses the prosecution presented. The most important of these excluded medical experts was John J. McCann. In the late 1980s, McCann and his colleagues became the first to conduct and present studies on what the genitals of nonabused children looked like. Ever since the passage of mandatory reporting laws in the 1970s, physicians and researchers had repeatedly photographed and described the genitalia of child sex abuse victims. In their haste to bring their diagnostic powers in line with their new professional duties, however, the researchers neglected to examine a control group. When they saw skin tags, dilation of the anus (Woodling’s “wink response” test), and variations in the dimensions and shape of girls’ hymens, they assumed they were looking at medical evidence of past abuse. McCann found all of these variations, however, in hundreds of nonabused children. In one presentation he said that he and his colleagues had to go through many slides of nonabused children before finding even one whose appearance perfectly matched the conventional understanding of what was normal.27 Bands of redness, skin tags, and uneven pigmentation were found on many children’s anuses.28 Even more significantly, McCann found that the anal wink was also common in nonabused children, suggesting that Woodling’s most widely publicized discovery had been completely in error. In examining prepubescent girls the researchers found that hymens also varied widely in size and shape.29 The rounded or flattened edges that were often cited as evidence of abuse by Astrid Heger and other doctors appeared frequently in McCann’s nonabused subject population. What this work highlighted, aside from a previously undocumented range of biological variety, were the severe diagnostic limitations of a field of medical knowledge that spent the seventies and eighties scrambling to catch up with the rising social and political importance of child abuse.

  Though major injuries, still-healing wounds, the presence of bodily fluids, and sexually transmitted infections obviously could be diagnostic of abuse, there was no medical consensus at all on what to make of minor scars, abrasions, or areas of redness. Although such scars may provide useful corroborative evidence when a child patient describes abuse or when an adult caretaker has strong reasons to suspect that abuse occurred, pediatricians today caution against assigning too much significance to such phenomena on their own. At the very least, such physical findings should be cross-checked by an expert specialist.30 This means that the responsible retrieval of a patient history is often the single-most important step toward accurately diagnosing sexual abuse, and “responsible” obviously is not the best word for the way in which the McMartin students’ patient histories were retrieved. Though Heger was asked to discuss McCann’s findings during her cross-examination, that is not the same thing as hearing from the expert in person, in his own words, which the jury never did. Instead, Virginia McMartin took the stand as the trial’s final witness. Like everyone else, she was fed up. She replied to prosecutors’ questions with long harangues and angry questions of her own. When Judge Pounders told her to answer the questions, Virginia exploded. “I just want to let all of you know that I’m a great believer in the Constitution,” she said. “The Constitution says I have the right to talk all I want and to criticize public officials.”31 Pounders threatened to send her to jail until crying family members intervened to settle her down.

  Closing arguments began on October 12, 1989. Peggy McMartin Buckey returned to her memo pad with another “What to be grateful for” list. God, life, truth, love, and joy occupied the top five once again. Lael Rubin’s assistant prosecutor, Roger Gunson, was the first to speak. He said the children’s most bizarre stories were confused but true accounts of strange events actually staged by Ray Buckey. He said the purpose of Buckey’s pretending to beat a horse to death was specifically to damage the children’s credibility later on—the jury must not be taken in.32 Number 63 on Peggy’s list was “creative.” Myra and Abby Mann were numbers 81 and 82, and number 140 was “good reporters.” Her attorney, Dean Gits, gave the second closing. He told the jury that although CII had initially drawn false allegations out of the McMartin children, it was the parents who did the crucial work of reinforcing those allegations in their well-intentioned efforts to be supportive. Item number 161 was “snow.” Danny Davis spoke third. The first two attorneys’ arguments had been brief, at least by the trial’s standards, but when Davis began his presentation, he pointed to two enormous briefcases and said, “They’re not full of lunch.” His closing chugged along for six days. It included lectures on the progress of history and a surrealist painting. In a subsequent interview Davis recalled winning a moot court judgment during his first year in law school at the University of Texas. “There’s something wrong with you,” Davis remembered the judge telling him after his victory. “You won, but we don’t like you. And when you go out into the real world, other judges aren’t going to like you, either.”33

  Peggy started her list from scratch yet again when Lael Rubin rose to give the trial’s final set of closing arguments on October 27. The prosecutor probably had more of her professional future riding on the jury’s verdict than anybody else involved with the trial. She wrote the words “Don’t Be Fooled” in block letters on a chalkboard near the jury box, and then she started to talk. She referred to a torn half-page that had gone missing from Virginia McMartin’s diary, implying there was additional evidence the jurors should be thinking about, even if they hadn’t seen it. “It reminds me of Watergate and the 18 minutes missing on the crucial tape,” she said. “If there was nothing on the page, the person who cut it out would have been in here. . . . You have to keep asking yourself who is fooling with the evidence.”34 Peggy kept writing: “366. Toaster . . . 401. Banjo . . . 467. Air conditioning.” On the final day of her closing argument, Rubin talked about medical evidence, recalling that Astrid Heger said she had found scarring on the genitals of all six girls listed as official complainants. Rubin also quoted the first parent who testified in the trial. She would have liked to believe that nothing happened, the parent said. “But I can’t, because I talked to my daughter.”35 The final item on Peggy’s list—number 712, after “jurors” and “bees”—was “children.”36

  The jurors deliberated for about a month, not counting a much-needed Christmas vacation. On January 18, 1990, their verdicts were read out in court.

  As he flipped through the verdicts before having them announced, Judge Pounders’s face turned red, then white.37 The jury deadlocked on thirteen counts against Ray. The verdict on the other fifty-two counts against him and his mother was “not guilty.” A single scream rang out in the gallery, and then people rushed out into the hallway and told reporters what they thought. Peggy finally expressed the anger she had sublimated for weeks with her silent list-making. “My concern was for my son and what they’ve done to him,” she said. “I’ve gone through hell, and now I’ve lost everythi
ng.” The parents were furious too. Some of them had grumbled for months that Lael Rubin and her colleagues were botching the prosecution, and the verdict validated all of their worst suspicions. “The system doesn’t allow us to protect kids,” said the father of two McMartin children. “I have no doubt these children were abused.”38 Some of the parents were photographed hugging and consoling their children, many of whom were now adolescents. Ray refused to talk to the press. He left the courthouse, stepped into his attorney’s car, and drove off to some unknown location.

  Anger and relief swirled around the courthouse, but the news also set off a frenzy of anxious retrospection. The day after the verdict, as the city’s newspapers and TV stations provided saturation coverage of the trial, the Los Angeles Times published the first in a series of four columns by staff reporter David Shaw. Based on a three-month review of nearly two thousand print and television news pieces, Shaw argued that, especially in the early months of the investigation, the media “frequently plunged into hysteria, sensationalism, and what one editor calls ‘a lynch mob syndrome.’”39 He devoted one of these columns to Wayne Satz, the KABC reporter who first broke the story, and another to his own employer, the Los Angeles Times. “The Times,” he wrote, “is the largest and most influential news organization in the area,” and he found that the paper “did seem to ignore, minimize or cover late various developments that tended to raise questions about the prosecution’s case.” Shaw concluded that the paper’s coverage was biased, and in 1991 he was rewarded for his willingness to criticize the paper that employed him with the Pulitzer Prize in Criticism (this less than a decade removed from a climate in which major papers had been totally unwilling to publish skeptical reporting on day care and ritual abuse).40

  Satz did not take kindly to Shaw’s analysis, which characterized his early McMartin reports as a “daily drumbeat of charges and disclosures.” But even as he wrote an amusing and mildly indignant letter to the editor, Satz gave an interview in which he agreed with Shaw’s larger thesis. “I found the coverage to be pack journalism—relatively mindless, as if reporters didn’t trust [their] own perceptions,” Satz said. “I don’t have a whole lot of respect for the news media today.” By this point Satz had left KABC. He said he was planning a funny cable show that would satirize the media and the role it played in manipulating people’s opinions.41