Defense asks Kern County judge asked to close death penalty trial to public

Constitutional rights attorneys have asked a Kern County judge to keep his courtroom open to the public during a an upcoming death penalty trial, denouncing a defense motion that argued the proceedings should be held in private because pretrial publicity has threatened the defendant's right to have an impartial jury and to maintain social distancing.

If Superior Court Judge David R. Zulfa grants the defense motion, it would fly in the face of long-standing federal and state precedent that sets the bar high for closing courtrooms in criminal proceedings, said David Snyder, executive director of the First Amendment Coalition, which filed a brief Friday opposing the motion.

Armando Cruz, 24, pleaded not guilty in July to the kidnap, murder and rape of 13-year-old Patricia Alatorre of Bakersfield. Prosecutors allege Cruz met the minor on social media and had twice convinced her to meet with him to engage in sexual acts. Her burned remains were found in a parking lot after she was reported missing on July 2. Prosecutors allege Cruz strangled her to death, wrapped her body in a sleeping bag, dropped it in the parking lot and set it on fire before fleeing the scene.

District Attorney Cynthia Zimmer charged him with first-degree murder with special circumstances of kidnapping, rape, lewd act on a child and oral copulation, along with 11 other felonies involving sexual conduct. Zimmer, who is prosecuting the case herself, has requested the death penalty. Peoplel v. Armando Cruz, BF181682A, (Kern County, Sup. Ct. Filed July 7, 2020).

The case has been widely covered by local and national media. Some reports featured photos of Cruz appearing at his arraignment in an anti-suicide smock as opposed to a standard jail house uniform. Other reports quoted law enforcement officials as describing the case as "especially horrific," "graphic" and one of the worst cases Bakersfield police had seen. And Zimmer was reported to have condoned a gathering outside the courthouse on the day of Cruz's arraignment with signs that read "make him pay."

All of this, wrote defense attorney Joel G. Garcia of the Garcia Law Group PC in Los Angeles, means "there is probably not a single person in the County of Kern that has not been exposed to the prejudicial publicity" the case has received.

"The danger that misinformation and/or inadmissible or prejudicial information is publicized repeatedly is an unnecessary risk at this point," Garcia wrote in a brief asking Zulfa to close his courtroom to the press and public. "Any publicity increases the danger of hostility toward the defendant as well as a great emotional response to the incident. As a result, the defendant's prospect of receiving a fair trial diminishes."

Garcia also argued the proceedings should be privately held due to health concerns related to COVID-19. He said in his motion that 20 to 40 members of the public were present in the courtroom for Cruz's arraignment without social distancing, contrary to local and state public health policies.

But legal experts say the constitutional standards to close a criminal proceeding are so high that legitimate closures are extremely rare.

"Criminal proceedings are presumptively open," Jean-Paul Jassy of Jassy Vick Carolan LLP, who specializes in First Amendment and media rights cases, commented Monday. "First Amendment jurisprudence makes clear that closure should not be permitted unless there are specific facts demonstrating a substantial probability of harm, and any closure must be narrowly tailored."

Both Zimmer and the attorneys with the First Amendment Coalition argue Garcia hasn't proved those facts. Instead, they say he has done nothing more than catalog "press hits as if any media attention were enough to deny the First Amendment right of access."

"The notion that publicity is inherently prejudicial, and thus justifies closing, is contrary to well-established precedent," wrote Serene Tagharobi, legal fellow of the First Amendment Coalition. "Despite widespread publicity surrounding the criminal cases of Scott Peterson, John DeLorean, Sirhan Sirhan, Charles Manson and Watergate, courts have repeatedly rejected criminal defendants' allegations that their convictions must be reversed because juries were tainted by prejudicial publicity."

Zimmer and the First Amendment Coalition extensively base their arguments on a 1986 U.S. Supreme Court opinion that established there must be a substantial probability and not simply a reasonable likelihood that a defendant's right to a fair trial would be compromised to exclude the press and public from a criminal proceeding. Press-Enterprise v. Superior Court, 478 U.S. (1986).

Although Zimmer opposed having the public barred from the proceedings, she said she would be fine with having Zulfa impose a gag order prohibiting the parties from offering extra-judicial comments to members of the public and press, other than questions relating to the dates of upcoming hearings.

The next hearing in the case is scheduled for Oct. 22 at 9 a.m. in Department 14 of Kern County Superior Court.