Narrowly averting a mistrial in the 4-year-old McMartin Pre-School molestation case, the district attorney's office Tuesday reluctantly asked for--and was granted--immunity from prosecution for a jail-house informant who has admitted lying under oath in previous cases.
Los Angeles Superior Court Judge William R. Pounders, calling immunity "most appropriate," said it would "benefit both sides to have a full examination" of the informant, convicted felon George Freeman.
Pounders said his decision reflected "a balancing of serious considerations. In my view it's not even a close question."
Freeman testified before the jury last week that while they were cell mates for two days in March of 1984, McMartin defendant Raymond Buckey told him he had molested several children at his grandmother's Manhattan Beach nursery school, had sex with his sister, hid pornographic photographs of himself with youngsters and belonged to a religious cult.
But as his testimony neared its end, prosecutors asked the judge to appoint a lawyer for Freeman. After conferring with attorney Rand Rubin, Freeman balked Tuesday at answering questions about having perjured himself in a 1980 murder case stemming from riots at Soledad Prison and having lied again in 1984 in a Los Angeles murder trial and at the McMartin Pre-School preliminary hearing.
"On the advice of my attorney I refuse to answer and take the Fifth Amendment," he repeatedly replied to questions posed by Deputy Dist. Atty. Lael Rubin and Buckey's attorney, Daniel Davis.
Prosecutors originally argued against immunity, contending that the defense still could cross-examine Freeman about other matters and establish his history of untruthfulness by calling other witnesses.
Pounders disagreed. "I just don't see any substitute for eyeball-to-eyeball confrontation," he told the attorneys, foreclosing all but what he called "the final alternative" to a mistrial--a grant of immunity for Freeman.
During a recess requested by the prosecution, Davis told reporters, "If (Dist. Atty.) Ira Reiner asks for immunity, he will be saying that if you lie for the prosecution, then we will protect you." He said a mistrial is "the only solution."
When court resumed, prosecutor Rubin made the formal request for immunity.
Both Davis and defense attorney Dean Gits, who represents Buckey's mother, Peggy McMartin Buckey, argued that the district attorney's office could not ethically make such a request.
"It's a perversion of what we stand for to authorize a person to get away with committing perjury," Gits told Pounders.
Prosecutors have admitted having knowledge of Freeman's perjury before calling him as a witness. Freeman testified Tuesday that when he repeatedly raised questions in conversations with prosecutor Rubin about whether he needed a lawyer, "She said I didn't need one."
Pounders called Freeman's testimony "detailed and damaging" to Raymond Buckey's case and said that the jury could not disregard it even if he ordered it stricken from the court record.
Pounders was careful to state that the grant of immunity does not affect a pending murder investigation in which Freeman is an uncharged suspect. Freeman, who has been released from prison, has a 15-year record of burglary and robbery, and he has been convicted of felonies five times.
As he resumed testifying late Tuesday, Freeman explained that he had not told the truth when he testified previously that he had seen "nothing" during the 1979 Soledad prison riots. He said that although he had witnessed two inmates stab a third, he lied in court--admitting only that he had seen one inmate with a bloody knife--to protect himself and his family. He said prison officials had refused to provide him with special protection and that members of a gang known as the Black Guerrilla Family had threatened to kill him.
But he testified in two later cases that he had testified "truthfully" in the Soledad case.
He said he considers himself "an informant," not "a rat."
He was asked what the difference is.
"A rat goes out and does a crime and tells on his crime partners," he responded, "while an informant is somebody who just tells on somebody." In the prison underworld, he said, "you get killed quicker being a rat than an informant."
To protect Freeman, Pounders ordered that cameras and tape recorders be shut off during his testimony, which continues today.
Buckey and his mother are on trial on one count each of conspiracy and 99 counts of molestation for allegedly sexually assaulting 14 of their pupils.