By Kalani E. Gaines
The First Amendment Coalition (FAC) has been taking the steps needed in order to ensure public access continues to be available in a Kern County death penalty case.
“There is an extremely high bar for closing courtrooms in criminal proceedings, and for good reason: We don’t do secret prosecutions in this country,” said David Snyder, executive director of the First Amendment Coalition. “The First Amendment and California law are clear: Absent extraordinary circumstances not present in the Cruz case, the public has the right to see how their judicial system works.”
The lawyers for Armando Cruz, who is accused of murdering and raping a teenage girl, have submitted a motion to close the courtrooms for his hearings in order to allow a fair trial and reduce the spread of COVID-19.
FAC has filed a brief to the court urging the judge to deny Cruz’s lawyers secrecy in this case.
Twenty-four-year-old Armando Cruz of Inglewood has been charged in the case of a girl, 14, from Bakersfield who had been missing until her charred remains were found in July. Cruz faces a dozen 
charges including murder, kidnapping, and rape, all involving a minor—leaving him to possibly face the death penalty.
This case has gained national exposure throughout the media as it has been claimed to be one of the worst cases that the Bakersfield police has seen.
The motion that Cruz’s attorneys submitted on July 29 displayed their concerns about a fair trial, as they stated “this case has received national, regional, and local notoriety and further comment on the case by either the press, lawyers, law enforcement or the parties involved would add to the existing publicity surrounding the case and clearly endanger a fair trial because of pretrial publicity.”
Cruz’s lawyers also argued that the court has a duty to ensure a fair trial as they referenced Penal Code section 868 and Press-Enterprise v. Superior Court (1986). PC section 868 allows court proceedings to be closed to the public in order to protect the defendant’s right to a fair and impartial trial.
Press-Enterprise v. Superior Court (1986) acknowledges that there are instances where the preliminary hearing should be closed to prevent pretrial publicity from affecting the defendant’s right to a fair trial, with the basis of a two-pronged test that requires there to be substantial probability that the right to a fair trial will be prevented from prejudice by closing it and that there is no reasonable alternative to protect the fair trial right.
The motion included a note stating there had been 20 to 40 people in the courtroom at the last hearing and social distancing of six feet was not being followed.
The pleading added that “any pretrial hearings allowing for the media and the public in the courtroom, not only jeopardizes the defendant’s rights to a fair trial by tainting the jury pool, but is also a public health hazard and would be contrary to current public policy.”
District Attorney for the County of Kern Cynthia Zimmer responded to the motion, acknowledging that PC § 868 and Press-Enterprise v. Superior Court (1986) are constitutional considerations that determine prejudice in Cruz’s trial. Zimmer also included in her response that PC § 868 “provides that the victim’s family shall be entitled to be present and seated during the examination.”
Zimmer did not object to the proposed protective order that prohibits the involved parties from making extrajudicial statements, but did request that she be able to discuss dates of upcoming hearings to the public as an exception.
The FAC has since filed a pleading on September 25 in opposition to closing the hearing, requesting physical access as well as audio or video streaming, in contrast to Zimmer’s response.
The FAC’s memorandum noted that in regard to Press-Enterprise v. Superior Court (1986) it must be shown that there is a substantial probability rather than just a reasonable likelihood that a defendant’s trial will be prejudiced as they stated the defendant “fails to show even a reasonable likelihood that his fair-trial rights will be prejudiced, much less a substantial probability.
“Even an unusual amount of pretrial publicity does not automatically compromise a defendant’s fair trial rights, especially, where, as here, there is a large and diverse jury pool” the FAC’S brief stated. The FAC argued that Kern County is of large size and is diverse, and that the motion implies that the whole county is incapable of creating a pool of impartial jurors.
The FAC made further points in their argument that there have been cases far more publicized than this one, such as O.J. Simpson and Marilyn Manson; therefore, this case has no exceptional circumstances and the request to close the hearings should be denied, the FAC added.
The next hearing is October 22.
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