May 21 – Conduct of the prosecution in the 1970 mass murder trial of the Charles Manson family was questioned caustically Thursday by the state Court of Appeal during oral arguments on whether the convictions should be overturned.

The jibes were directed from the bench at both Vincent T. Bugliosi, the chief prosecutor who is now running for district attorney, and state Atty. Gen. Evelle G. Younger, who was district attorney at the time.

Neither Bugliosi nor Younger was present in court. The job of defending their actions and the convictions of Manson and three of his “girls” fell to Dep. Atty. Gen. Howard J. Schwab.

Manson and Susan Atkins, Patricia Krenwinkel and Leslie Van Houten are appealing life sentences imposed for the 1969 Tate-LaBianca murders — on which Bugliosi has based a best-selling book, “Helter Skelter.”

Several references to the book — none laudatory — were made by Justice Robert S. Thompson. When Schwab opened his argument by embracing Manson’s alleged “helter skelter” race-war theory as a motive for the gruesome crimes, Thompson asked:

“You’re not planning to write a book on this case, are you?”

Schwab promised that he was not.

At another point, Thompson mentioned that the method of trying the case was “like a plot — for a book.” He asked whether the court could take “judicial notice” of Bugliosi’s book, but Schwab said that was outside the record.

Thompson also questioned the propriety of an interview Bugliosi had with Manson over the objections of the defendant’s attorney. Even though the record might indicate that Manson solicited the interview, Thompson wondered whether it violated the canons of professional conduct.

Schwab responded that the record was not all that clear.

Among Thompson’s chief concerns was the fact that Younger issued daily press releases on the case — including reproductions of what newspapers elsewhere had printed about it.

Thompson wondered whether the prosecution had contributed to publicity surrounding the case and what inhibitions there should be on such participation.

Schwab replied that such activity did not violate a “gag order” imposed by Superior Judge Charles H. Older. Moreover, he added, the public had a right to know how the district attorney was doing his job.

“Wouldn’t you be better off admitting that the district attorney made a mistake?” Thompson retorted.

Superior Judge Charles S. Vogel, assigned temporarily to the panel hearing the appeal, also wondered whether the prosecution generated publicity to such an extent that it must share responsibility.

He noted that Dep. Dist Atty. Aaron Stovitz had given an interview to Rolling Stone magazine. Younger also held press conferences expressing his concern over the competency of Manson’s attorney, Irving Kanarek, Vogel pointed out.

Furthermore, he noted that Miss Atkins had sold her story to the press through arrangements made by attorney Richard Caballero. Kanarek pointed out to the court that Bugliosi interviewed Miss Atkins at Caballeros office.

However, Schwab responded that the most the prosecution was guilty of was “being naive.” He contended that Older took all the necessary precautions to shield the jury from prejudicial publicity.

The appellate judges appeared to agree that Older was not wrong in denying a motion to shift the trial elsewhere. They noted there probably was no other county where the publicity would be less pervasive.

“What else could the judge do?” Vogel asked attorney Albert Silverman, arguing for Miss Krenwinkel. “Release them (the defendants) and put a bounty on them? Release them and forget it?”

However, the court seemed to take more kindly to attorney Maxwell Keith’s argument that his client, Miss Van Houten, should have been granted a mistrial.

Keith was appointed very late in the trial to take over Miss Van Hounten’s defense after her original attorney, Ronald Hughes, drowned on an outing in the Sespe area.

Keith contended this deprived Miss Van Houten of effective counsel because he was not present for the testimony of any witnesses and could not effectively challenge their credibility.

But the court was less sympathetic to Keith’s argument that Older should have instructed the jury on the defense of “diminished capacity.”

Keith pointed out that even Bugliosi had described the girls as “slaves, zombies, robots and automatons” under the control of Manson.

“I’m asking the court to draw an inference from the record that these girls are crazy,” Keith said.

But the appellate judges noted that no psychiatric or any other expert testimony to support that defense had been offered.

Kanarek, renowned for his volubility, surprisingly waived his oral argument and made only very brief comment. Daye Shinn, counsel for Miss Atkins, also waived oral argument and did not even appear.

By GENE BLAKE