Window into American criminal justice system from the daycare sexual abuse trials of the 1980s

We Believe the Children: A Moral Panic in the 1980s won both “A Wall Street Journal Best Book of 2015” and “A Boston Globe Best Book of 2015”. There is a lot of great material in the book, though it would be stronger if the author let the material speak for itself rather than saying, essentially, “it is bad when innocent people spend 100 percent of their assets on a criminal lawsuit defense, are imprisoned for five years, and finally released.”

Much of the book concerns a California case:

In the late summer of 1983, residents of a beachfront city in southwestern Los Angeles began to suspect that their children were in danger. In August, the mother of a child who had attended the McMartin Preschool in Manhattan Beach told the police that her two-year-old son had been molested by one of his teachers. In September, police arrested the accused teacher and charged him with three counts of child abuse.

More than seven years of criminal prosecution was kicked off by the reports of a single woman:

In March of the previous year a woman named Judy Johnson had called the McMartin Preschool to ask about enrolling her two-and-a-half year-old son. She was told the school could not accept any new children for the time being, but Johnson was determined and a little desperate. She had recently separated from her tax auditor husband, leaving her to look after the boy full-time. On March 15 she put a note in her son’s lunch bag explaining who he was, dropped him off at McMartin, and drove away. Peggy McMartin hadn’t previously known Judy Johnson or her son, but she decided the woman must have been under enormous stress to do something so rash. She let the boy stay.

Things briefly calmed down for Judy Johnson. She and her husband made their separation permanent, and she also found a job in retail. In the summer of 1983, however, Johnson became concerned about the condition of her son’s anus. One day in July she took Matthew to the emergency room and told the doctor that her son’s anus was itchy. The doctor wasn’t terribly concerned. Judy and Matthew went home. A month passed. On August 12 Johnson called the Manhattan Beach police. Her concerns were the same as in July, except that now she suspected criminal rather than strictly medical causes. She told police detective Jane Hoag that when she had sent Matthew to school the previous morning his anus had been normal, but when she had brought him home at the end of the day it had been red. There was only one male teacher, Ray Buckey, working at McMartin. Johnson said that Matthew had recently begun to play doctor, running around pretending to give people shots or check them for fever, which Johnson found very alarming. Repeated questioning finally induced Matthew to reveal that he had learned this behavior from Ray Buckey. Johnson believed the “thermometer” had been Ray’s penis. Detective Hoag advised Johnson to take her son to the hospital, and at 8:30 that evening, after examining Matthew at the Kaiser Hospital in Harbor City, a doctor filed a suspected child abuse report. Over the weekend Johnson further questioned her son about what had happened at school, and then on Tuesday she called the police to provide Detective Hoag with two names; Johnson said Matthew had identified these other children as victims of Ray Buckey. On Wednesday Matthew was examined again, this time by two pediatricians at the Marion Davies Children’s Clinic at UCLA. His examining physicians filed a second suspected child abuse report.

Around this time, Judy Johnson began to reach out to other parents whose children attended McMartin. She called the parents of one of the children Matthew had named to inform them of her suspicions. The parents talked to their son and then called Judy back: the boy didn’t like Ray, but he denied having been molested at preschool.

Detective Hoag, by this point, was making inquiries of her own. In the space of two days she called the parents of five other McMartin children, all of whom reported back that nothing had happened to their children. None of this eased Judy’s mind. She was disturbed by an incident in which Matthew had wandered into her room while Johnson was partially undressed. The boy looked at his mother and said, “Matthew wear bra.” Johnson told the police that Matthew had eventually revealed that Ray made him wear women’s underwear at McMartin.

On the afternoon of November 30, Judy Johnson called Detective Hoag again. She said Matthew had revealed more details of his abuse and that McMartin teachers other than Ray had been involved. Babette Spitler, Johnson said, made Matthew vomit by stepping on his stomach, and there was a stranger, an old woman, who came to the school and held Matthew’s feet down while he was sodomized. Matthew had also been forced to perform oral sex on Peggy McMartin Buckey, the school’s administrator. According to Detective Hoag’s report on the call, Matthew also told his mother about “being taken to some type of a ranch far away where there were horses and he rode naked.” Ray took pills. Ray gave himself a shot. Ray killed a dog and put a cat “in hot water.”

As the litigation wore on, the woman kept up her reports:

“I don’t want to hear any more ‘no’s,’” [investigator Astrid Heger] told one girl who had refused to disclose. “Every little boy and girl in the whole school got touched like that.” By this point investigators believed that almost every teacher in the school had been involved as well. Judy Johnson was still making regular calls to the Manhattan Beach police, reporting what she claimed were allegations made by her son, Matthew, who was now three years old. The police reports that document these calls, however, suggest either that Judy was dutifully and neutrally reporting her son’s increasingly surreal allegations, or that her mental health was deteriorating: Matthew feels that he left L.A. International in an airplane and flew to Palm Springs. . . . Matthew went to the armory. . . . The goatman was there . . . it was a ritual type atmosphere. . . . At the church, Peggy drilled a child under the arms, armpits. Atmosphere was that of magic arts. Ray flew in the air. . . . Peggy, Babs and Betty were all dressed up as witches. The person who buried Matthew is Miss Betty. There were no holes in the coffin. Babs went with him on a train with an older girl where he was hurt by men in suits. Ray waved goodbye. . . . Peggy gave Matthew an enema. . . . Staples were put in Matthew’s ears, his nipples, and his tongue. Babs put scissors in his eyes. . . . She chopped up animals. . . . Matthew was hurt by a lion. An elephant played . . . a goat climbed up higher and higher and higher, then a bad man threw it down the stairs. . . . Lots of candles were there, they were all black. . . . Ray pricked his right pointer finger . . . put it in the goat’s anus. . . . Old grandma played the piano . . . head was chopped off and the brains were burned. . . . Peggy had a scissors in the church and she cut Matthew’s hair. Matthew had to drink the baby’s blood. Ray wanted Matthew’s spit. The Manhattan Beach police do not seem to have dismissed these claims entirely. They may not have gone looking specifically for goat men or decapitated infants, but by March detectives believed that the case involved not only teachers at McMartin but other adults in the area as well, and they executed search warrants on eleven residences across the South Bay.

Prosecutors were not dissuaded by apparent credibility problems with their first witness:

Reading [Judy] Johnson’s FBI statements, it is apparent that the investigation was taking a toll on her mental health. She said her other child had also been molested, years earlier, at a different preschool.

The italicized sentence is an example of where the book could have used an editor applying the mantra “show, don’t tell.” Judy Johnson’s behavior and statements should let a reader judge for himself or herself the state of her mental health.

But those effects may have been most pronounced in the case of Judy Johnson, who ultimately found the investigation too much to bear. As her mind deteriorated over the course of 1985, so did her drinking increase. She once threatened a relative on her doorstep with a shotgun, after which she was hospitalized for a voluntary psychiatric evaluation.

Two weeks after she testified, Judy called to report that her home had been burglarized. “Nothing was taken,” Stevens remembered her saying. “However, Matthew was sodomized.”61 Judy said the perpetrator was an AWOL Marine who had removed a window screen from outside and then entered the house. Judy didn’t see the man commit the act, but Matthew’s butt was red—the police needed to come immediately.

He recounted one episode with Judy Johnson in especially vivid detail. At some point in the second half of 1984, Stevens said, Judy Johnson called from Seattle. She was in the hospital, and she didn’t know why. “All she knows,” Stevens said, “is that she was in her Volkswagen bus, and she was with the kids, and, ah, she was driving up to Seattle, and, ah, that they were being followed by a car with the Marine in it.” Then Stevens didn’t hear from her for a few days, and then she called to say that actually she had not been at the hospital—she had been staying with friends the whole time. On the way back to Los Angeles she called Stevens again from somewhere in Northern California and said the Marine was following her. Would Stevens please send an investigator to help? “Judy, you know, why don’t you just get back to Los Angeles,” Stevens told her, and she did. Then she called again to report that her son had been molested by Roberta Weintraub, a member of the Los Angeles County school board. “Matthew saw her on TV,” Stevens remembered Johnson saying, “and said, ‘Mom, she molested me.’” Stevens didn’t explain exactly what it was that set this particular phone call apart from all the others, but it made Johnson’s mental condition real to him for the first time. “All of a sudden,” he told the Manns, “I just wanted to stuff a sock in her mouth.”64 The conversations between Glenn Stevens and Abby and Myra Mann wrapped up by midsummer.

Were prosecutors concerned by this key witness?

“It slipped through everybody’s analytical process,” [Deputy District Attorney Glenn] Stevens [one of the original prosecutors] said, “to sit down and wonder exactly what kind of woman this is and what is going on here.” The Manns asked Stevens whether he and [lead prosecutor] Lael Rubin ever discussed Judy Johnson’s mental health. “Sure, we got a good laugh about Judy,” Stevens said, but he claimed they never discussed any of what Judy’s mental decline meant for the case, the McMartin children, or the defendants.

The prosecution outlasted the key witness:

Half a year later, on the same day a judge denied another of Ray Buckey’s bail requests, police entered Judy Johnson’s home and found her body in the bedroom upstairs [contemporaneous NYT story]. She died of internal hemorrhaging—friends said she had suffered from ulcers for years, and these may have been exacerbated by her alcoholism, which, in the last months of her life, became severe. “She made the McMartin case,” said Bob Currie, one of Johnson’s close friends. When they found her there was food in the cupboard, an empty bottle of rum in the trash, and a subpoena from [defense lawyer] Danny Davis stuck in the mail slot.

Ms. Johnson’s death turned out not to be a huge obstacle because the prosecutors had the kids themselves.

Interviews could last for hours, and the children being questioned were often five, four, or even three years old. When children failed to provide answers that corroborated allegations of abuse, interviewers repeated the questions. In Los Angeles one five-year-old boy who had attended the McMartin Preschool became frustrated with his interviewer, a woman named Kee MacFarlane: Q: Where did Beth get touched? A: She didn’t get touched. Q: You can help tell her yucky secrets and she won’t have to tell. Wouldn’t that be nice? A: She didn’t get touched. Q: She never did? How about on the other side. Maybe she did. A: She never even got touched. As these interviews pressed on, children who did not provide affirmative answers to questions about abuse found themselves being asked the same questions all over again. So the children began to provide different kinds of answers. Later in the same interview, Kee MacFarlane returned to the topic of the boy’s classmate. Q: Here’s Beth. A: She got touched nowhere. Q: Oh, I don’t know if that’s the truth. We have to tell the the truth. Maybe she got touched in the back, too, like Otis. A: Huh-uh [negative]. Q: Maybe she got touched in the mouth. A: Huh-uh [negative]. Q: How about in the mouth? A: Mouth? Q: Yeah. Yes? In the mouth? A: [No audible response.] Q: I thought so.

And in Los Angeles, where the McMartin trial would eventually drag on for seven years, becoming the longest criminal trial in American history, proceedings took on an atmosphere of surreal, geographically specific, black comedy. In 1985 a ten-year-old boy testified that a Los Angeles city attorney had slaughtered hundreds of animals alongside Ray Buckey, that he had been abused by priests and elderly nuns at a dozen separate satanic rituals, that he had been subjected to brutal beatings with a bullwhip, and that after all this the McMartin teachers had capped off their orgy of abuse by forcing the children to eat “peppers and other stuff that was raw” at a health food store.

Was sweating kids until they talked in a helpful way a new idea?

The Salem witch trials [1692] were the first legal proceedings in American history to involve the testimony of child witnesses, and in both the seventeenth-century witch hunts and the day care investigations, the question of a child’s ability to distinguish fact from fiction was central. In each episode, children were thought to have been abused by a secretive group of conspirators, and each time it was the adults who first began to suspect that a conspiracy was at work. Initially the girls in Salem did not even report that anyone was harming them.

The case was tried in the media to some extent:

In January 1985 the TV newsmagazine 20/20 aired a bizarre and lengthy report on the case called “Why the Silence?” The program addressed what had long been an annoying stumbling block for McMartin believers: if the abuses were really that bad, how had the teachers managed to keep so many children quiet for so long? Reporter Tom Jarriel explained that the teachers must have used mind-control. “If the seven teachers are indeed guilty of the child abuse charges,” Jarriel said, adding the qualifier necessary to shield the network from libel suits, “it appears they may have also practiced a sophisticated form of behavioral modification. . . . The children’s allegations fall into a pattern that is curiously paralleled to the classic brainwashing techniques used on prisoners of war.”

Teachers told the children that the Easter Bunny wouldn’t love them anymore. Teachers locked a child in a refrigerator. Teachers made children “devour” things that had “come from their private parts.” 20/20’s litany of horrors and abuses is so extravagant and imaginative that even the show’s anchors seem to have had trouble accepting what they heard. This is perhaps one of hysteria’s underappreciated traits: it feels hysterical not only after the fact, in Danny Davis’s “shameful retrospect” stage, but at the time, even to people who believe in it. And so at the end of the report, back in the studio, Barbara Walters asked Jarriel about the children’s unexpectedly sophisticated vocabularies. “What about the language these children use,” she asked, “like, ‘oral sex,’ uh . . . ‘they devoured us.’ This is not the language of little kids.”

November [1986] had also seen the first nationally televised report expressing skepticism that the McMartin children had ever been abused. 60 Minutes was then the most prestigious news program in the country, … “The United States has the rottenest judicial system in the whole world,” Virginia McMartin said. “Don’t let anybody talk to me about Russia or South Africa or anything. We have it right here.”

[lead prosecutor] Lael Rubin appeared in the 60 Minutes piece as well. The word for her affect is probably “embattled.” “Very large numbers of children were molested at the school,” Rubin said, refusing to address her case’s diminished size following Reiner’s decision to drop charges against five of the seven original defendants. “I don’t see that at this point whether one says there were fifty, or one hundred, or two hundred, or three hundred—that is really beside the point at this point in time. . . . The issue is that children were molested at the school, whether there be two or whether there be a hundred!”

The piece finally pivoted to Ray Buckey, speaking to a journalist for the first time since his arrest more than three years earlier. He was visibly angry. “You gotta have a scapegoat,” he said, making use of the term at the heart of his lawyer’s theory of social panic, when asked why Reiner had dismissed charges against all of the defendants except for him and his mother, Peggy. “You kept two people in jail for two years. You’re gonna back off now and say, ‘Sorry, they’re innocent too’? It’s an amazing fact that you can have the same evidence, with the same children testifying against all seven, but you can say there’s weak evidence against five of them.” Wallace asked Buckey what he planned to do if he eventually went free. “They’ve ruined my life,” Buckey said. “I hadn’t made up my mind of what I wanted to do in life. But they’ve put a scarlet letter on me that I can never get rid of. I don’t know what kind of life I could have.”

How do you defend an accused child molester whom nearly everyone potential juror believes is guilty?

[Ray Buckey’s lawyer] Danny Davis had a home-brewed theory of social panic on which he based many of his decisions about strategy. The theory divided a panic into different stages. The first stage, “social event,” referred to the set of conditions or circumstances that made the panic possible. Davis believed that McMartin had been precipitated by affluent baby-boomers’ feelings of guilt about their soft lifestyles and lazy parenting habits. In the second stage, “scapegoating,” society looked to shift blame away from those who really deserved it. Ray Buckey was the scapegoat. Finally, Davis said, after lots of destructive energy had been expended trying to punish the scapegoat, you reached a phase called “shameful retrospect,” in which people realized their mistake and then wished they had not acted so recklessly.23 Davis wanted to give southwestern Los Angeles time to make it to “shameful retrospect” before a jury was asked to deliver a verdict, and to that end he announced that he would present what is called an affirmative defense at the preliminary hearing. Rather than sitting to the side while the prosecution glossed its case against the McMartin teachers, Davis cross-examined witnesses and filed subpoenas for prosecution documents before a jury was even selected. He hoped a lengthy preliminary hearing would give the panicked atmosphere in Manhattan Beach time to subside, and he also thought it would give him the opportunity to conduct an ad hoc form of discovery, with courtroom cross-examinations standing in for the pretrial depositions that are usually only allowed in civil, not criminal, cases. Stretching out the hearing in this manner would also give Davis time to map out exactly when each of the child complainants had attended McMartin, which revealed that some of the children had never actually been under Ray Buckey’s supervision at the preschool.

Although it is true that a majority of the children who testified only began to reluctantly fabricate their stories under intense pressure from therapists and parents, a few children took to making things up pretty easily. This ten-year-old was one of those few. During several disastrous days of cross-examination, the boy made one incredible claim after another, telling Danny Davis and other defense attorneys that he and other children had been forced to dig up graves on field trips to cemeteries, that teachers had killed classroom pets with knives and hypodermic needles “almost every day,” and that on multiple occasions he had been beaten until he was bruised, bloodied, and barely able to stand. In a break from his usual outraged manner with the press, Forrest Latiner greeted reporters with loud laughter during a recess. “Picture seven little dwarfs with pickaxes marching to a grave in broad daylight,” he said. “It’s totally unbelievable.” Prosecutor Glenn Stevens could only helplessly support the boy. “He was terrorized and taken to a cemetery,” Stevens said, “and awful things happened.”43 Stevens didn’t say anything at all to reporters after the boy’s second day on the stand; instead, he “literally sprinted” down the hall toward his office and then shut the door. Earlier that day, Danny Davis had told the boy he wanted to ask a few questions about the strangers the boy kept mentioning as being present at the Episcopal church, the cemetery, and elsewhere. Davis held up a piece of poster board with a bunch of photographs attached, and he asked the child whether he recognized any of the people on the board from his time at the church and the cemetery. Yes, said the boy, he did, and then he pointed to two photos. One was a portrait of James Kenneth Hahn, who was then city attorney–elect for Los Angeles and who would become the city’s mayor in 2001. The other was a picture of the action star Chuck Norris.

These efforts paid off to some extent after a 17-month preliminary hearing:

The preliminary hearing ended on January 9, 1986, seventeen months after it had begun. Judge Bobb ruled that all seven defendants would stand trial on 135 counts. Eight days later, however, District Attorney Ira Reiner announced that only Ray and his mother, Peggy, would be prosecuted. His office dropped all charges against Virginia McMartin, Peggy Ann Buckey, Mary Ann Jackson, Betty Raidor, and Babette Spitler. Peggy McMartin Buckey made bail and went home after two years and one day in jail.

As in a lot of family court litigation, the physical evidence turned out to be banal:

[the assistant prosecutor who quit] Stevens said doubts about the case had gnawed at him for a long time. As the prosecutor assigned to organize and coordinate police searches of the McMartin teachers’ homes and other areas, he was often the first member of the prosecution to examine the physical evidence firsthand. Again and again, nothing turned up where something was supposed to turn up. He watched all of the McMartin-Buckeys’ home movies. “My god, did we end up with rolls and rolls,” he said. “They were stupid movies about trips to Mexico, you know, ‘us on the beach.’” Then he read through Virginia’s diary and was disappointed to find another collection of “just regular stuff”: “You know, ‘Today Peggy called me from South Dakota,’ and you know, mom stuff. Ah, ‘Today UCLA played in the NCAA championship against Louisville and lost. Darn, I was so upset.’ This is the kind of stuff she writes. She’s a Lakers fan, I swear.”

In the fall of 1987 Virginia McMartin spent a day testifying out of the jury’s presence, in front of a video camera. She was eighty years old; the tape was stored away in case she died before being called to the stand.

[In the prosecution’s closing arguments, after the three-year trial, the diary is mentioned.] [prosecutor Lael Rubin] 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.”

The defense lawyer decides that a field trip for the jury will help his client:

Danny Davis spent several thousand dollars to spruce up the McMartin Preschool in the spring of 1989. Defense staff and Peggy McMartin Buckey’s husband, Chuck, applied fresh coats of paint inside and out, restoring the building to its original pea-green color and brightening the school’s handmade clown cabinets, giraffe chairs, and other furniture. Davis owned the building now. The McMartin-Buckeys had signed it over as partial payment for their legal fees.

Judge Pounders’s subsequent tour of the property convinced him that Davis had produced an accurate facsimile of the school as it appeared in the early 1980s. He granted Davis’s request to allow the jury to see it for themselves. Davis believed jurors needed to see just how small the building was to understand the implausibility of the stories that had been told about the defendants, so the City of Los Angeles bused them down to Manhattan Beach on a sunny Wednesday morning in April. … [Jurors] got approval to shout from one room to another so that they could hear how noise carried. They looked into the school’s closets and bathrooms, and they also looked at the property from the balcony of an apartment building across the street.

A teacher against whom charges had been dropped testified for eight days!

The summer was given over largely to testimony from those who had actually worked at the school. Betty Raidor took the stand for eight days. A sixty-nine-year-old disciplinarian, she criticized Ray as an “incompetent” teacher who let the children run around noisily when he should have been organizing activities instead. She said she never saw anything at McMartin that suggested sexual abuse.

Prosecutors try to show that the defendant is gay:

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,

“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.

So part of the jury’s three-year experience is hearing from this guy’s former sex partner:

Ray didn’t want to ask Barbara Dusky to offer sworn testimony about a sexual encounter that had taken place eight years earlier, but [prosecutor] 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.”

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.

Prosecutors placed a lot of faith in “The science is settled” and got a bit lift from judicial discretion:

[forensic doctor Bruce] Woodling revived a set of Victorian theories about the physical consequences of gay sex and adapted them to children. Nineteenth-century physicians had looked hard for ways to identify homosexuals in court, and one popular belief had it that if a physician began to perform a rectal examination on a patient who regularly engaged in sodomy, the anus would spontaneously open up, whereas normal anuses would tighten. Although this theory had been discredited by the time Bruce Woodling entered medical school, many physicians continued to believe in it, and Woodling saw no reason why it shouldn’t hold true for children as well. During exams he began using a swab to touch a spot near the young patient’s anus. If it opened, he concluded that the child had been sodomized. The wider the opening, the more regular the abuse had been. Woodling called this the “wink response” test.

That [the defendants’] 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. Bands of redness, skin tags, and uneven pigmentation were found on many children’s anuses. 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. 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 is it like to be prosecuted for child molestation and have the charges dropped before trial?

In the summer of 1988 the Los Angeles Times published simultaneous profiles of Babette Spitler, Mary Ann Jackson, and Betty Raidor, McMartin teachers whose charges had not made it past the preliminary hearing. Raidor talked nostalgically about puttering around the garden and putting on dinners for friends at her house, which she and her husband had sold for $225,000 [$508,000 in today’s mini-dollars] to help cover her legal expenses. She said she missed her two cats and two dogs, which weren’t allowed in her new apartment complex. Mary Ann Jackson was the only defendant who didn’t lose her home, but she said it was just recently that people stopped giving her suspicious looks and making remarks on the street when she went out with her grandchildren. To sustain herself after the arrest, she said, she read books by concentration camp survivors and turned to her religious faith. Babette Spitler had a harder time. After her arrest she and her husband tried to send their two children to live with relatives in San Diego under assumed names, but it only took the Manhattan Beach police a few weeks to learn where they had gone and bring them back to the South Bay. There the children were interviewed for six hours at the Children’s Institute International and then sent to the county facility for neglected and “wayward” youth. They eventually returned to their relatives in San Diego, but Spitler later learned her children had felt guilty for months, terrified they said something at CII to make matters worse for their mother and the other teachers. After the charges were dropped and after Babette and her husband passed a battery of psychological tests, their children were finally returned—the family had been separated for two years. The Spitlers’ house and savings were gone, and they tried hard to prevent their new neighbors from discovering their involvement in McMartin. Unlike Jackson and Raidor, Spitler was bitter. “I wanted a trial,” she said. “When they dropped the charges, they said they didn’t have enough evidence to convict me. They never said that Babs Spitler is innocent.”

How about Ray Buckey and his mom?

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.” … Many people were still convinced of the Buckeys’ guilt. When one television station organized a call-in poll to gauge the public’s reaction, viewers asserted by a margin of seven-to-one that “justice was not served.”

Civil suits of all kinds threatened to keep courts occupied with the preschool for years, and two weeks after the verdict prosecutors announced that they would retry Buckey on the thirteen remaining counts. Buckey faced thirty-two years in prison. Jury selection began almost immediately.

Courtroom officials originally promised a six-month trial, but the case was handed over to the jury on July 3, just three months after opening arguments. The jury deliberated for six hours a day. On July 15 the foreman informed Judge Weisberg that they were hopelessly deadlocked, favoring acquittal on six of the eight counts but completely unable to make further progress.

Eventually most of the other targets of the day care abuse prosecutions got out of the pokey:

In Massachusetts it took eight years for the state to overturn Violet Amirault and Cheryl Amirault LeFave’s convictions, and it would take nine more to release Gerald Amirault, Cheryl’s brother and Violet’s son, from prison. Kelly Michaels spent five years in prison after her 1988 conviction in a New Jersey courtroom. In El Paso, Gayle Dove was released from prison only to be tried and convicted again, and it would be another two years before she was freed for good.

In 1999 Cheryl Amirault LeFave reached an agreement with the Middlesex County district attorney to serve ten years’ probation in exchange for her release, with a number of additional stipulations. One was that she have no unsupervised contact with children to whom she was not related nor any contact whatsoever with the alleged victims’ families. Another was that she not sit for television interviews or attempt to profit from her experience by writing a book about it. The following year the state’s parole board began to investigate the possibility of commuting Gerald Amirault’s sentence, and in 2001 it recommended by a 5–0 vote that he be released. Martha Coakley, the district attorney, organized press interviews for the alleged child victims—now adults—and encouraged the governor to keep Amirault in prison. In early 2002, Acting Governor Jane Swift denied Amirault’s commutation.

Three Arkansas teenagers who were falsely convicted of murdering young boys in the woods, in part because of their interest in heavy metal, became the subjects of a sympathetic HBO documentary that included a soundtrack by Metallica. The “West Memphis Three” were released in 2011 after eighteen years in prison. Other episodes, however, remain almost entirely forgotten, including the sex ring investigation in Wenatchee, Washington, in which forty-three adults were arrested on more than twenty-nine thousand charges of sex abuse involving sixty children. Eighteen of the defendants, nearly all of whom were poor and on welfare and some of whom were illiterate or mentally handicapped, were convicted in the mid-1990s. The last of them would not be released until 2000.

What about folks on the government side? Her ultimate lack of success in convicting any of the daycare workers, despite $15 million tax dollars spent, did not stand in the way of Lael Rubin’s career in the Los Angeles District Attorney’s bureaucracy. Transparent California shows that she was collecting roughly $146,000 per year in pension benefits after retiring in 2013.

Ms. Rubin would have had an easier case to make in the 1990s:

In June [1990 California] state legislators put Proposition 115, the Crime Victims Justice Reform Act, to a statewide vote. The measure was approved by a fourteen-point margin, and it was a windfall for prosecutors, radically shifting the balance of power in California’s criminal justice system. Hearsay evidence became admissible under certain circumstances. Under this change the McMartin students would never have been compelled to testify nor, in all probability, would the jury have seen the CII videotapes; testimony from parents and therapists, relaying what they remembered the children saying to them, would have sufficed. The proposition also removed clauses from the state constitution that provided defendants indicted under a grand jury with the right to a preliminary hearing.

The jurors themselves saw this very clearly, and they resented it. “Now that we found them not guilty, everyone wants to change the system,” one said. “If we had found them guilty, no one would have wanted to change anything.”

The book covers a bunch of additional cases and also the American public’s motivation for wanting to believe in them. If we assume that we aren’t getting any smarter, on average, since the mid-1980s, the book is important to read. We can be sure that we are just as wrong about a bunch of things today, but what are they?

More: read We Believe the Children: A Moral Panic in the 1980s


11 thoughts on “Window into American criminal justice system from the daycare sexual abuse trials of the 1980s

  1. Our justice system has many flaws that result in punishment and trials for lots of innocent people. Yes we also catch a lot of guilty people. But many times we don’t get anywhere near the right witnesses or right evidence. And until some recent DNA improvements we don’t seem to be changing much. See below for some links to Ron Krone’s wrongful murder convictions.

  2. Juries should have three options: “Guilty”, “Not Guilty”, and most importantly “Not guilty, and indict the prosecuting attorney”

  3. Truly horrific stories. Dorothy Rabinowitz at the WSJ was instrumental in exposing the witch hunts of the Amirault and McMartin cases. Popular hysteria encouraged by career minded prosecutors, incompetent judges and most likely incompetent defense lawyers.

  4. Martha Coakley’s wannabee successor Maura Healey has already taken a couple of chapters from the Coakely playbook of prosecutorial overreach and grandstanding. Watch out for her.

    Her scapegoating of semi-automatic rifle owners by her surprise notice unilaterally interpreting the MA AWB to make them retroactively illegal after 20 years of the opposite interpretation of the law is a good example. The average number of people killed by any type of related rifle in MA over the last decade was zero per year. But she has promised not to prosecute “yet” any of the tens of thousands of owners who are now retroactively felons. Witch hunting in MA is back in fashion, updated for liberal tastes.

  5. Lived in the south bay for 6 years and watched a fair amount of city council meetings on TV. Upper class mothers are frighteningly irrational. I watched scores of them speculate wildly about how allowing a single tattoo shop to open would be the demise of the entire city, which the average real estate price is $1.5m. They insisted the city fight the issue in the courts and risk bankruptcy, even thought the SCOTUS had ruled on a similar instance already.

  6. @Jack

    I remember the Amirault case very well. A truly horrible miscarriage of justice supported by the SJC.

    There were I couple of decent judges, though. I met one of them on a couple of occasions and chatted on unrelated matters without realizing that it was the same Judge Isaac Borenstein who stated: “The only allegations made by the child witnesses occurred after they were subjected to the admittedly suggestive interviews, and investigative techniques, as well as inappropriate – even if understandable – influence by their families”.

  7. The Jerry Sandusky Penn State prosecutions seemed like more witch trials to me. All the evidence was recovered memories from those who were suing for millions of dollars.

  8. I briefly made Judge Dolan’s acquaintance during the trial and she made it clear to me that bad things had gone on at Fells Acres and that it was her duty to right them. Reflecting on that, now a few decades later and with considerable in person courtroom experience, it is clear to me that she had already decided that case long before it was over.

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