2nd Buckey Trial Delayed; Defense Attorney Ailing

With hundreds of prospective jurors, the prosecutors and the defendant himself ready to start the second trial of McMartin Pre-School defendant Ray Buckey, proceedings were postponed Monday when a recurring back ailment kept the defense attorney out of the courtroom.

Jury selection was to have begun on eight remaining child molestation counts against Buckey, who was acquitted three months ago of most of the charges against him.

But Buckey’s lawyer, Danny Davis, said he could not appear, and the prosecutor said he will formally move to have Davis removed from the case, if necessary.

“I’m asking the court to consider the possibility of having another counsel appointed so we can go to trial as soon as possible,” Deputy Dist. Atty. Joseph Martinez told reporters. “If it means replacing Danny Davis, so be it.”

Davis had asked recently for a co-counsel to be appointed in case he was incapacitated. The trial date had been put off from March 24 because of Davis’ herniated disk; his request then for a two-month delay for surgery was denied. Davis indicated last week that he was ready to go to trial Monday.

“We’re in limbo,” Martinez said. “Another attorney, an able-bodied attorney, can be ready and go to trial.”

In court, Martinez raised “the issue of whether Mr. Davis should be relieved,” and Superior Court Judge Stanley M. Weisberg responded, “That’s a decision the court has been considering, among other options.” Weisberg noted that although he has ordered the case back to court today, it is “unclear based on the information I have whether (Davis) will be here.”

Talking to Buckey in court Monday was attorney John J. Wagner, who represented Buckey’s sister and former co-defendant, Peggy Ann Buckey, in her ultimately successful effort to get back her teaching credential. Wagner spent some time in chambers with Judge Weisberg and prosecutors.

“I’d like Mr. Davis to stay on and a co-counsel to be appointed so he can heal and carry on with this case,” said Ray Buckey, who has been represented by Davis for more than six years.

Buckey said he spoke Sunday night to Davis, who was “down on all fours again” from back pain. “The physical reality (is) that we need to go forward in this case, and Mr. Davis doesn’t seem to be able to do it full time the way I’d like him to.”

Aside from Buckey and some likely witnesses, Davis is the only carry-over figure from the original trial, the longest criminal trial in U.S. history. Both Martinez and fellow prosecutor Pamela Ferrero, as well as Judge Weisberg, are new to the case.

Prosecutors have said that child witnesses could drop away if delays continue, and Martinez reiterated that point after the delay Monday. “They (witnesses) are not going to like it, I don’t like it, the court doesn’t like it, the public doesn’t like it,” he said.

While the time needed for a new attorney to familiarize himself or herself with the case could be several months, Martinez said, that would be preferable to a “flare-up” of Davis’ back problems raising “the possibility of a mistrial.”

Buckey, speaking to reporters afterward, said the delay is not a tactic, but added: “People are going to blame the defense no matter what.”