The majority of records in the Kristin Smart murder trial have been or will be unsealed and the gag order in the case will be modified, Monterey County Superior Court Judge Jennifer O’Keefe ruled Thursday on a motion filed by a coalition of news organizations led by The Tribune.

Citing the First Amdendment and the public’s right to access, The Tribune teamed up with ABC News, the Associated Press and the Los Angeles Times in an effort to unseal hundreds of records in the Smart murder case that have been withheld from the public. The news media coalition also asked for the court’s registrar of actions to be updated with substantive information and for remote access to documents.

Both Paul and Ruben Flores, who have been charged in connection to the May 1996 murder of Smart, were present in the courtroom. Ruben Flores first waived his right to be present at the hearing but decided to return after about 20 minutes. Their trial moved to Salinas after San Luis Obispo Superior Court Judge Craig van Rooyen ruled the Flores men were unlikely to receive a fair trial in San Luis Obispo.

Superior Court Judge Jennifer O’Keefe is presiding over the case in Monterey County Superior Court.

At the time the coalition filed its motion, nearly every document filed in the case since it moved to Salinas was sealed, including sealing requests. Because the public could not review sealing requests, it was impossible to know what documents existed.

O’Keefe moved to unseal the majority of documents on July 29, following the news coalition’s initial court filing on July 14.

Only Paul Flores’ attorney Robert Sanger filed an opposition directly to the news media coalition’s motion. San Luis Obispo County Deputy District Attorney Chris Peuvrelle provided the coalition with an opposition to O’Keefe’s proposed list of documents to unseal to the general public, but did not provide an opposition directly to the coalition’s motion.

Both Sanger and Peuvrelle agreed that the majority of documents should be unsealed to the public, but held that some documents should remain sealed in whole or in part. Ruben Flores’ attorney Harold Mesick joined Sanger and Peuvrelle in their arguments but did not offer any oral arguments of his own.

Aaron Field, attorney for the news coalition, argued that neither the prosecution or the defense had met the burdens they needed to in order to justify sealing any records.

In order for a judicial document to be sealed, the California Supreme Court ruled in 2002 that a court must find the following: There is an overriding interest that overcomes the public’s right of access. There is a substantial probability that sealing will promote that interest. The sealing order is narrowly tailored to serve the overriding interest. There are no less restrictive alternatives to sealing.

Additionally, the court must publicly docket a notice to seal a written filing accompanied with reasons to justify the sealing, according to California Rules of Court, which neither party has done in this case.

Sanger argued that providing a list of document names to the public could jeopardize “confidential information” and defeats the purpose of sealing. The news coalition, and the judge, disagreed. “I’m not aware of any names of documents that would pose any problems,” O’Keefe told Sanger.

O’Keefe ordered counsel for the prosecution and defense to provide a list of documents they have objections to unsealing to the news coalition by Aug. 19. If either party wants the judge to ensure document names will not make confidential information public, they can provide the list to the court by Aug. 12. Parties must also submit their justifications for sealing each document on their list by Aug. 25, in time for them to be ruled on in a hearing on Sept. 2. In the meantime documents without objections will continue to be unsealed.

Gag Order For the Murder Trial Will Be Modified 

The protective order, also known as a gag ordered, was issued on the case by San Luis Obispo Superior Court Judge Craig van Rooyen in April 2021 and will also be modified, O’Keefe said. According to now-public sealing requests and orders, Sanger has cited the gag order as a key reason to justify sealing documents.

Monterey County Superior Court Court Executive Officer Chris Ruhl also cited the order when he denied The Tribune access to exhibits shown in open court. Court staff have also cited the gag order when refusing to answer simple questions, like the topic of a hearing.

“There is no question this gag order is obstructing constitutional access to this case,” Field argued, asking the order be vacated due to its use for blanket sealing in the case.

Sanger and Peuvrelle both argued that the gag order should remain in place, arguing that although jurors have been sworn in and taken an oath to avoid outside information, the social media age makes that difficult. Because of news feeds and push notifications, information about the case may be unavoidable, Sanger argued, saying it would be “improper” to allow witnesses and attorneys to talk to the press. Peuvrelle agreed.

“It’s impossible for our jurors to miss news in the world,” he said. O’Keefe ruled she will revise the order to clarify and narrowly tailor it so that it does not prevent constitutional access to the case, including access to documents and exhibits. Sanger tried to argue that exhibits shown in open court thus far should not be accessible because “I don’t think anyone really considered those” as public documents.

“If an exhibit is presented in open court, there is no justification for sealing it,” Field argued. Peuvrelle asked that the judge include a fail safe for release of exhibits by notifying counsel of their release.

The judge did not make a firm decision on this but said it will be addressed in the protective order and the protective order will favor the public’s right to access. She said the presumption of all documents and exhibits filed with the court is for them to be unsealed unless there is a compelling interest and that interest is narrowly tailored. She said she plans to craft an order that balances the media’s right to access and the defendants’ right to a fair trial.

The modified gag order is expected to be sent out next week, and if all parties agree, it will go into effect immediately.

O’Keefe said she believes it is within the presiding judge’s discretion to grant remote access to documents. Both the news coalition and the court will revisit document sealing and remote access at a Sept. 2 court hearing. “The court needs clear understanding of what is being asked to be sealed and why,” she said.

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