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The McMartin Case: Is Reiner Right?

February 02, 1986|William J. Genego | William J. Genego is an associate clinical professor of law at the USC Law Center. He has both prosecuted and defended criminal cases

Dist. Atty. Ira Reiner decided last month not to try five of the seven defendants in the McMartin Preschool child-molestation case. His decision followed a judge's finding, after the longest preliminary hearing in California history, that there was probable cause to try all seven defendants.

How can Reiner's decision possibly be squared with Municipal Court Judge Aviva Bobb's findings--or with the initial prosecutorial decision of then-Dist. Atty. Robert Philobosian?

Two years and $4 million later, the public is left with more questions about the McMartin case than when the prosecution first began:

--Why is a case initiated with enormous publicity and more than 300 counts of child molestation against seven individuals now proceeding to trial with only a fraction of the original counts and only two defendants?

--Have the reputation and financial resources of innocent persons been irreparably harmed, or are guilty defendants being allowed to go free because of an unjustified concern over the likely success of a courtroom victory?

--Was the initial decision to charge all seven defendants flawed?

The public has a right to know the answers to these questions.

In attempting to figure out what went wrong in the McMartin prosecution, it is helpful to analyze the case in reverse chronological order.

In deciding whether to make someone stand trial for a criminal offense, a prosecutor must be guided by general principles that take into account a broad range of concerns. The public obligation is to see that criminal law is enforced, both to deter future criminal conduct and to see that violators are held accountable. Equally important is a prosecutor's ethical obligation to bring to trial only those persons whom he or she believes can fairly be found guilty by a jury, beyond a reasonable doubt.

This does not mean that a prosecutor should only charge individuals when confident of a courtroom victory. Given the tremendous personal cost and consequences of being named a criminal defendant, however, the decision to prosecute must be made responsibly.

Additionally, a prosecutor must consider strategic concerns in deciding what charges and what defendants to bring to trial. It is well known among trial attorneys that prosecuting individuals against whom evidence of guilt is weak may cause a jury to question the state's case in its entirety, even when evidence of guilt is strong against some.

No one can dispute that it would have been much easier and publicly popular for Reiner simply to proceed to trial against all seven of the original defendants. The conclusion must be that the district attorney and his staff decided to drop charges against the five defendants because the evidence against them was so weak that a jury could not fairly find them guilty beyond a reasonable doubt, and that their inclusion would have jeopardized successful prosecution of the remaining two defendants.

Does this mean Judge Bobb's decision was wrong? Bobb found there was "probable cause" to hold all seven defendants for trial on all charges. The judicial decision she had to make was distinctly different from the prosecutorial decision faced by the district attorney. In essence, the question Bobb addressed was whether there was so little evidence against any of the defendants that the state should be barred from bringing them to trial. Her concern was not whether it was likely that the defendants would be found guilty by a jury applying a beyond-a-reasonable-doubt standard to the state's proof. Nor was she concerned that trying all seven defendants would be an unwise strategic decision that might jeopardize the state's case.

While it is unusual for a prosecution not to continue against a defendant after a judge has found probable cause, the two decisions are not mutually exclusive or necessarily inconsistent.

Even where there might be probable cause to hold a defendant for trial, a prosecutor may reasonably conclude that the evidence of guilt is not strong enough for a jury to return a verdict of guilty. There is no reason to conclude, then, that Bobb's decision was incorrect because Reiner decided not to proceed against all seven defendants or that his decision was incorrect because Bobb found probable cause.

That leaves the original decision by Reiner's predecessor, Philobosian, to initiate the prosecution against all seven defendants on more than 300 counts.

In making that decision, Philobosian should have been guided by the same principles of prosecution as was Reiner. If that was so, how can one explain their radically different conclusions? If the evidence against some of the defendants is "incredibly weak," as Reiner put it, was it not incredibly weak when the case began? It might be suggested that somehow the state's evidence deteriorated over the course of the past two years. This seems unlikely; if sufficient evidence existed, it could have been preserved.

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