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6 IN T H E SUPE RIO R CO URT O F GUA M
THE PEOPLE OF GUAM, 8 CRIMINAL CASE no. CF0543-18 9
Plaintiff, 10 DECISION AND ORDER
11 vs.
BR I AN K EVI N CR UZ, 13
14 Defendant.
15 INTRODUCTION 16 This matter is before the Honorable Vernon P..Perez on Defendant Brian Kevin Cruz's 17 ("Defendant") Motion to Bar Video and Still Photography During Hearings. Defendant is 18 represented by Attorney Douglas B. Moylan,l and the People of Guam ("the Government") are 19 represented by Assistant Attorney General J. Basil O'Mallan HI. Having reviewed the 20 pleadings, the arguments presented, and the record, the Court now issues the following Decision 21 and Order. 22 BACKGROUND 23 On September 14, 2018, Defendant was indicted eight counts of First Degree Criminal 24 Sexual Conduct (As a First Degree Felony), eight counts of Second Degree Criminal Sexual 25 Conduct (As a First Degree Felony), four counts of Third Degree Criminal Sexuai Conduct (As 26
28 1 The Motion, however, was filed by Defendant's prior counsel, Assistant Public Defender Jocelyn M. Roden.
People v. Cruz Case No. CF 0543-18 Decision and Order . Page l of 6 1 a Second Degree Felony), Kidnapping (As a Second Degree Felony), Aggravated Assault (As a
2 Second Degree Felony), Assault with Intent to Commit Criminal Sexual Conduct (As a Third
3 Degree Felony), Family Violence (As a Third Degree Felony), Felonious Restraint (As a Third
4 Degree Felony), two counts of Possession of a Schedule II Controlled Substance (As a Third
5 De gre e Fe lony), and Elu ding a Police Office r (A s Misdemeanor). (Indictment, Sep. 14,
6 2018). Jury Selection and Trial in this matter is currently set for March 13, 2019.
7 On September 21, 2018, Defendant filed the instant Motion. On October 9, 2018, at the
8 Criminal Trial Setting, counsel for the Government indicated that there would be an opposition
9 to Defendant's Motion forthcoming. On N o ve m be r 21, 2018, t h e Go ve rn m e n t fi l e d i t s
10 Opposition. No reply was filed. Prior to the Government filing it's Opposition, however, the
Alternate Public Defender was appointed to represent Defendant due to conflicts of interest
12 arising with the appointment of the Public Defender Service Corporation. Subsequently, on
13 January 15, 2019, at a Further Proceedings Hearing, Attorney Moylan was appointed to
14 represent Defendant due to conflicts of interest arising with the appointment of the Alternate
15 Public Defender. On January 29, 2019, at a Further Proceedings Hearing, Attorney Moylan
16 indicated to the Court that he was also adopting the prior Motion to Bar Video and Still
17 Photography During Hearings and moved the Court for a decision on the Motion. The Court
18 gave leave to Defendant to submit any additional pleadings in support of the Motion, and
19 indicated it would take the matter under advisement. At this time, the Court has only been in
20 receipt of one media request for electronic proceedings.
21 DISCUSSION
22 Defendant moves the Court to protect his Constitutional right to fair and impartial court
23 proceedings by prohibiting media from photographing or filming any of his court hearings. See
24 generally, Mot., Sep. 21, 2018. Defendant's objection stems. from allegations that the media
25 routinely violates the Media Rules promulgated by the Judiciary of Guam. Id. The Government
26 objects, arguing that Defendant has provided "no good cause as to why the Court should
27 prohibit media members from malting recordings, as they are entitled to do under 8 G.C.A. §
28 1.23." (Opp'n at l, Nov. 21, 2018). The Government further submits that "early instruction to
People v. Cruz Case No. CF 0543-18 Decision and Order Page 2 of 6 1 media members on following the Media Rules and close enforcement of those rules will provide
2 the Defendant the relief he seeks." Id. at 4.
3 The Sixth Amendment guarantees a criminal defendant the right to a trial by a fair and
4 impartial jury. U.S. Const. amend. V. This r ig ht is r e ite r ate d in Guam law at 8 G.C.A . §
5 1.l1(a), which provides that "[i]n any criminal action, the defendant is entitled to a speedy and
6 public trial." Title 8 G.C.A. section 1.23 provides that "[t]he taldng of photographs in the
7 courtroom during the progress of judicial proceedings, or radio or television broadcasting of
8 judicial proceedings from the courtroom, shall be permitted by the Court, subject to restrictions
9 in rules and regulations promulgated by the Court."2 The Supreme Court of the United States
10 has declined to hold that such a statutory right of access is prohibited by the Constitution.
11 Chandl er v. Fl orida, 449 U.S. 560, 581-82 (1981).
12 Here, "Defendant's primary concern is the restriction and intrusion by cameras thmsted
13 at the defense table when [he] communicates with his lawyer." (Mot. at 3). Defendant further
14 argues that the "media presence will likely hinder [his] ability to communicate with his counsel
15 during hearings." Id. In Ch an dl e r, the Supreme Court acknowledges that "the general issue of
16 the psychological impact of broadcast coverage upon the participants in a trial, and particularly
17 upon the defendant, is still a subject of sharp debate." Chandl er, 449 U.S. at 578. The Supreme
18 Court concluded that "[w]hatever may be the mischievous potentialities of broadcast coverage
19 for intruding upon the detached atmosphere which should always surround the judicial process,
20 at present no one has been able to present empirical data sufficient to establish that the
21 m er e p r esence of the b r oad cast m ed ia inherently has an ad verse effect on that p rocess."
22 Chandl er, 449 U.S. at 578-79 (internal citations, alterations, and quotation marks omitted).
23 Defend ant has not p rovid ed any ad d itional authority in sup p ort of his arg ument that the
24 presence of the media will affect his state of mind during proceedings, nor to suggest that the
26 2 On August 11, 2016, the Supreme Court of Guam issued Promulgation Order No. PRMI6-001-01, adopting the 27 proposed Judiciary of Guam Rules Governing Electronic Coverage of Judicial Proceedings, effective October 1, 2016. Under the Media Rules, there is a presumption that all judicial proceedings that are open to the public are 28 subject to electronic coverage.
People v. Cruz Case No. CF0543-18 Decision and Order Page 3 of 6 1 Supreme Court's assessment in Chandler has changed, warranting a complete exclusion of the
2 media from the courtroom. The Court will, however, order that the media not record any
3 conference, discussion, or conversation between: attorneys and their clients, between co-
4 attorneys, or between attorneys and the judge held at the bench, pursuant to Rule 9(d).
5 Lastly, the Court acknowledges that "[t]he risk of juror prejudice is present in any
6 publication of a trial, but the appropriate safeguard against such prejudice is the defendant's
7 r ig h t to d e m on s tr a te th a t th e m e d ia 's c ov e r a g e of h is c a s e - b e it p r in te d or b r oa d c a s t-
8 , c om p r om is e d the ab ility of the p ar tic u lar ju r y that he ar d the c as e to ad ju d ic ate fair ly ."
9 Chandler, 449 U.S. at 575.
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6 IN T H E SUPE RIO R CO URT O F GUA M
THE PEOPLE OF GUAM, 8 CRIMINAL CASE no. CF0543-18 9
Plaintiff, 10 DECISION AND ORDER
11 vs.
BR I AN K EVI N CR UZ, 13
14 Defendant.
15 INTRODUCTION 16 This matter is before the Honorable Vernon P..Perez on Defendant Brian Kevin Cruz's 17 ("Defendant") Motion to Bar Video and Still Photography During Hearings. Defendant is 18 represented by Attorney Douglas B. Moylan,l and the People of Guam ("the Government") are 19 represented by Assistant Attorney General J. Basil O'Mallan HI. Having reviewed the 20 pleadings, the arguments presented, and the record, the Court now issues the following Decision 21 and Order. 22 BACKGROUND 23 On September 14, 2018, Defendant was indicted eight counts of First Degree Criminal 24 Sexual Conduct (As a First Degree Felony), eight counts of Second Degree Criminal Sexual 25 Conduct (As a First Degree Felony), four counts of Third Degree Criminal Sexuai Conduct (As 26
28 1 The Motion, however, was filed by Defendant's prior counsel, Assistant Public Defender Jocelyn M. Roden.
People v. Cruz Case No. CF 0543-18 Decision and Order . Page l of 6 1 a Second Degree Felony), Kidnapping (As a Second Degree Felony), Aggravated Assault (As a
2 Second Degree Felony), Assault with Intent to Commit Criminal Sexual Conduct (As a Third
3 Degree Felony), Family Violence (As a Third Degree Felony), Felonious Restraint (As a Third
4 Degree Felony), two counts of Possession of a Schedule II Controlled Substance (As a Third
5 De gre e Fe lony), and Elu ding a Police Office r (A s Misdemeanor). (Indictment, Sep. 14,
6 2018). Jury Selection and Trial in this matter is currently set for March 13, 2019.
7 On September 21, 2018, Defendant filed the instant Motion. On October 9, 2018, at the
8 Criminal Trial Setting, counsel for the Government indicated that there would be an opposition
9 to Defendant's Motion forthcoming. On N o ve m be r 21, 2018, t h e Go ve rn m e n t fi l e d i t s
10 Opposition. No reply was filed. Prior to the Government filing it's Opposition, however, the
Alternate Public Defender was appointed to represent Defendant due to conflicts of interest
12 arising with the appointment of the Public Defender Service Corporation. Subsequently, on
13 January 15, 2019, at a Further Proceedings Hearing, Attorney Moylan was appointed to
14 represent Defendant due to conflicts of interest arising with the appointment of the Alternate
15 Public Defender. On January 29, 2019, at a Further Proceedings Hearing, Attorney Moylan
16 indicated to the Court that he was also adopting the prior Motion to Bar Video and Still
17 Photography During Hearings and moved the Court for a decision on the Motion. The Court
18 gave leave to Defendant to submit any additional pleadings in support of the Motion, and
19 indicated it would take the matter under advisement. At this time, the Court has only been in
20 receipt of one media request for electronic proceedings.
21 DISCUSSION
22 Defendant moves the Court to protect his Constitutional right to fair and impartial court
23 proceedings by prohibiting media from photographing or filming any of his court hearings. See
24 generally, Mot., Sep. 21, 2018. Defendant's objection stems. from allegations that the media
25 routinely violates the Media Rules promulgated by the Judiciary of Guam. Id. The Government
26 objects, arguing that Defendant has provided "no good cause as to why the Court should
27 prohibit media members from malting recordings, as they are entitled to do under 8 G.C.A. §
28 1.23." (Opp'n at l, Nov. 21, 2018). The Government further submits that "early instruction to
People v. Cruz Case No. CF 0543-18 Decision and Order Page 2 of 6 1 media members on following the Media Rules and close enforcement of those rules will provide
2 the Defendant the relief he seeks." Id. at 4.
3 The Sixth Amendment guarantees a criminal defendant the right to a trial by a fair and
4 impartial jury. U.S. Const. amend. V. This r ig ht is r e ite r ate d in Guam law at 8 G.C.A . §
5 1.l1(a), which provides that "[i]n any criminal action, the defendant is entitled to a speedy and
6 public trial." Title 8 G.C.A. section 1.23 provides that "[t]he taldng of photographs in the
7 courtroom during the progress of judicial proceedings, or radio or television broadcasting of
8 judicial proceedings from the courtroom, shall be permitted by the Court, subject to restrictions
9 in rules and regulations promulgated by the Court."2 The Supreme Court of the United States
10 has declined to hold that such a statutory right of access is prohibited by the Constitution.
11 Chandl er v. Fl orida, 449 U.S. 560, 581-82 (1981).
12 Here, "Defendant's primary concern is the restriction and intrusion by cameras thmsted
13 at the defense table when [he] communicates with his lawyer." (Mot. at 3). Defendant further
14 argues that the "media presence will likely hinder [his] ability to communicate with his counsel
15 during hearings." Id. In Ch an dl e r, the Supreme Court acknowledges that "the general issue of
16 the psychological impact of broadcast coverage upon the participants in a trial, and particularly
17 upon the defendant, is still a subject of sharp debate." Chandl er, 449 U.S. at 578. The Supreme
18 Court concluded that "[w]hatever may be the mischievous potentialities of broadcast coverage
19 for intruding upon the detached atmosphere which should always surround the judicial process,
20 at present no one has been able to present empirical data sufficient to establish that the
21 m er e p r esence of the b r oad cast m ed ia inherently has an ad verse effect on that p rocess."
22 Chandl er, 449 U.S. at 578-79 (internal citations, alterations, and quotation marks omitted).
23 Defend ant has not p rovid ed any ad d itional authority in sup p ort of his arg ument that the
24 presence of the media will affect his state of mind during proceedings, nor to suggest that the
26 2 On August 11, 2016, the Supreme Court of Guam issued Promulgation Order No. PRMI6-001-01, adopting the 27 proposed Judiciary of Guam Rules Governing Electronic Coverage of Judicial Proceedings, effective October 1, 2016. Under the Media Rules, there is a presumption that all judicial proceedings that are open to the public are 28 subject to electronic coverage.
People v. Cruz Case No. CF0543-18 Decision and Order Page 3 of 6 1 Supreme Court's assessment in Chandler has changed, warranting a complete exclusion of the
2 media from the courtroom. The Court will, however, order that the media not record any
3 conference, discussion, or conversation between: attorneys and their clients, between co-
4 attorneys, or between attorneys and the judge held at the bench, pursuant to Rule 9(d).
5 Lastly, the Court acknowledges that "[t]he risk of juror prejudice is present in any
6 publication of a trial, but the appropriate safeguard against such prejudice is the defendant's
7 r ig h t to d e m on s tr a te th a t th e m e d ia 's c ov e r a g e of h is c a s e - b e it p r in te d or b r oa d c a s t-
8 , c om p r om is e d the ab ility of the p ar tic u lar ju r y that he ar d the c as e to ad ju d ic ate fair ly ."
9 Chandler, 449 U.S. at 575. At this time, the instant matter is still in pre-trial proceedings. No
10 jury has been selected and no case has been presented. At this stage, the Court has no possible
11 basis for malting a finding of the prejudice required to overcome the media's right of access and
12 the presumption of openness. Therefore, the Court denies Defendant's Motion.
13 This, however, does not foreclose any possible remedies for Defendant. Should this
14 matter proceed to trial, Defendant has the right to move the Court to poll the jury to address any
15 exposure to mid-trial publicity pursuant to Peopl e v. San Nicol ai, 2016 Guam 32, or to move for
,16 a Mistrial or a new trial under 8 G.C.A. § 110.30, upon the presentation of a factual basis
17 presented for the Court to find that inherent prejudice or "an inference of actual prejudice" has
18 arisen from the media's conduct. See Murphy v. Fl orida, 421 U.S. 794 (1975).
19 MED I A R U LES
20 The .Court hereby orders that the media implement any recording or photography in
21 strict adherence to the rules and regulations established by the Supreme Court of Guam in
22 Promulgation Order No. PRM16-001-01. Impossibility constitutes good cause for the Court to
23 e xc u s e a d h e r e n c e b u t ig n or a n c e or n e g le c t w ill n ot. Additionally, the Court addresses
24 Defendant's concerns and its own concerns in the administration of justice by emphasizing the
25 following requirements:
26 1. The Media must request electronic coverage at least three (3) business days prior to
27 the proceeding through the Media Request Form, pursuant to Rule 6(a) .
People v. Cruz Case No. CF0543-18 Decision and Order Page 4 of 6 1 2. The media will be limited to one still photographer, one video recorder, and one
2 audio recorder at each proceeding. It is up to the media to determine how said
3 photographer, video recorder, and audio recorder will be pooled, pursuant to Rule
4 l0(g ). The Court will not adjudicate the pooling arrangements of the media. The
5 particular equipment used for the purposes of recording is subject to approval of the
6 Court, at its discretion.
7 3. The Court has the sole discretion to determine if any sound produced by a still
8 camera is "distracting" under Rule l0(b).
9 4. Media personnel permitted in the courtroom pursuant to the application for media
10 coverage shall remain in the location designated by the Court and shall not move
11 from the specified location or leave the courtroom during the proceedings, as
12 required by Rule l0(e)&(f). .
13 5. No conference, discussion, or conversation between: attorneys and their clients,
14 between co-attorneys, or between attorneys and the judges held at the bench shall be
15 recorded in any manner pursuant to Rule 9(d).
16 6. No jurors shall be recorded in any manner whatsoever' pursuant to Rule 9(b).
17 7. No recording may take place in the courtroom until the proceedings have begun and
18 they must immediately cease once the proceedings have ended. A proceeding begins
19 once the judge takes the bench and ends once the judge leaves the bench.
20 The Court reserves proportionate sanctions for violations of these specific requirements 21 above, up to and including exclusion of a particular person or media organization, pursuant to 22 Rule 12. The media shall bear the burden of compliance with these rules and regulations and 23 shall bear the burden of demonstrating such compliance if requested by the Court or a party to 24 this matter. 25 The Court may revisit these requirements prior to the commencement of Jury Selection 26 & Trial, and upon any revision of the Rules Governing Media Coverage of Proceedings in the 27 Courthouse. 28
People v. Cruz Case No. CF0543-18 Decision and Order Page 5 of 6 1 CONCLUSION
2 For the foregoing reasons, the Court hereby DENIES Defendant's Motion to Bar Video
3 and Still Photography During Hearings, and ORDERS the all media organizations to adhere
4 with the above listed requirements. A separate media order will be filed contemporaneously
5 with this Decision and Order reflecting the media orders listed above.
I T I S S O O R D E R E D this 20th day of February; 2019. 7
10 H Q N O R A B L E V ER N O N p . P ER EZ Judge, Superior Court of Guam 11
24 SERVICE VIA COURT BOX I acknowledge that a copy of the 25 original hereto was placed In the court boxgr: 26 ~A-kw*u'n~]
27 /~§§B z u 20,13 . 2% D t \ e.
28 \ CWW1' I t » E epp§y Clerk. Superior Court of Gua
People v. Cruz Case No. CF 0543-18 Decision and Order Page 6 of 6 £8 gggvgglgg gggggyf OF @G£M 1 ZUIQFEB 20 PM 2: HE 2 \jL§R§-§ UF COURT 3
5 IN THE SUPERIOR COURT OF GUAM 6
7 THE PEOPLE OF GUAM, ) 8 ) CRIMINAL CASE no. CF0543-18 Plaintiff, ) 9 vs. ) ) ORDER 10 BRIAN KEVIN CRUZ, ) RE: MEDIA COVERAGE OF 11 ) PROCEEDINGS Defendant. ) 12 ) 13 This matter is before the Honorable Vernon P. Perez. In accordance with its' Decision 14 and Order, the Court hereby orders that the media implement any recording or photography in 15 strict adherence to the rules and regulations established by the Supreme Court of Guam in 16 Promulgation Order No. PRMI6-001-01. Impossibility constitutes good cause for the Court to
17 excuse adherence but ignorance or neglect Will not. In addition, the Court addresses Defendant's
18 concerns and its own concerns in the administration of justice by emphasizing the following
19 requirements:
20 1. The media must request electronic coverage at least three (3) business days prior to
21 the proceeding through the Media Request Form, pursuant to Rule 6(a) .
22 2. The media will be limited to one still photographer, one video recorder, and one
23 audio recorder at each proceeding. It is up to the media to determine how said
24 photographer, video recorder, and audio recorder will be pooled, pursuant to Rule
25 10(g). The Court will not adjudicate the pooling arrangements of the media. The
26 particular equipment used for the purposes of recording is subject to approval of
27 the Court, at its discretion.
28 People v. Cruz CF0543- 18 Med i a O r d er
Page 1 of 2 1 3. The Court has the sole discretion to determine if any sound produced by a still
2 camera is "distracting" under Rule l0(b).
3 4. Media personnel permitted in the courtroom pursuant to the application for media
4 coverage shall remain in the location designated by the Court and shall not move
5 from the specified location or leave the courtroom during the proceedings, as
6 required by Rule l0(e)&(f).
7 5. No conference, discussion, or conversation between: attorneys and their clients,
8 between co-attorneys, or between attorneys and the judges held at the bench shall
9 be recorded in any manner pursuant ro Rule 9(d).
10 6. No jurors shall be recorded in any manner whatsoever pursuant to Rule 9(b).
11 7. No recording may take place in the courtroom until the proceedings have begun
12 and they must immediately cease once the proceedings have ended. A proceeding
13 begins once the judge takes the bench and ends once the judge leaves the bench.
14 The Court reserves proportionate sanctions for violations of these specific requirements
15 above, up to and including exclusion of a particular person or media organization, pursuant to
16 Rule 12. The media shall bear the burden of compliance with these rules and regulations and
17 shall bear the burden of demonstrating such compliance if requested by the Court or a party to this
18 matter.
19 The Court may revisit these requirements prior to the commencement of Jury Selection &
20 Trial, and upon any revision of the Rules Governing Media Coverage of Proceedings in the
21 Courthouse. 22
23 IT IS SO ORDERED this 20th day of February, 2019
SERVICE VIA COURT BOX 24 I acknowledge that a copy of the \ 25 original hereto was placed in the court be of: , V AQ; lJ»0~llLN1J HONURABLE VERNON p. PEREZ 26 Judge, Superior Court of Guam 27 gEt 2 0 M&2m 28 Bik. Supesier e GU Peoblé 'of Cruz CF0543- 18 Media Order
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