A Kern County Superior Court judge clarified a gag order Wednesday issued in the California City brothers adoptive parents’ murder trial and agreed with The Californian’s stance: A gag order doesn’t bar the release of records requested by this newspaper about the brothers’ interactions with social workers.
Despite this ruling by Judge Charles Brehmer, some records The Californian seeks are banned from public review after a juvenile court judge issued a protective order to limit disseminating documents.
But the Kern County Department of Human Services did disclose some information Wednesday after Brehmer’s ruling — that law enforcement determined in July 2022 both boys died from abuse.
The Californian asked the Kern County Department of Human Services on Jan. 23 for documents pursuant to California Senate Bill 39 in relation to Orrin, 4, and Orson West, 3. Police reports against whom the abuse or neglect was substantiated, health care records reflecting a pattern of abuse or neglect, risk and safety assessments and other records are required to be disclosed under SB 39 if a child dies.
The West toddlers were reported missing from California City by their adoptive parents, Trezell and Jacqueline West, in December 2020. A little more than a year later, both parents were indicted and have pleaded not guilty to two second-degree murder charges, an involuntary manslaughter charge, willful cruelty to a child, conspiracy and falsely reporting an emergency.
Kern DHS Senior Paralegal Etta Sharp denied The Californian records pursuant to SB 39 on Feb. 14, claiming a gag order imposed by a trial court judge on the criminal case sealed records, including documents that “may be in our agency’s possession.”
“I am unable to release any information at this time related to your request,” Sharp wrote in an email.
After publishing a story about this denial, this reporter sent another letter to County Counsel and Kern DHS demanding the release of records because a blanket gag order enacted by a trial court judge doesn’t trump a law decided for the entire state.
“The language plainly states records are mandated to be released upon request,” this reporter wrote.
This second letter spurred a hearing requested by County Counsel asking Judge Brehmer to clarify the gag order because lawyers weren’t present when it was implemented and they didn’t want to unlawfully release information. County Counsel also sought to protect the prosecution’s case and the defendant’s substantial constitutional rights, according to Deputy County Counsel Bryan Walters.
Brehmer, who is also presiding over the West trial, said during a hearing Wednesday the county wasn’t bound by the gag order and could release information lawfully allowed to be disclosed. Because there was no written gag order issued, Brehmer stepped in to provide clarification.
“The request by … The Bakersfield Californian is not restrained by this court in any way,” Brehmer said.
However, the Kern County District Attorney’s office objected to releasing documents because their dissemination could jeopardize an ongoing criminal proceeding, according to a letter issued Wednesday by DHS senior paralegal Sharp. SB 39 allows Kern DHS to redact information if it determines disclosure could harm a criminal investigation or proceeding.
The information revealed Wednesday was limited. The boys died in the home of a parent or legal guardian from abuse — not neglect, the newly disclosed records said. There was also an investigation by law enforcement and Child Welfare Services/Probation, though it wasn’t known when the boys died, the records said.
First Amendment and free speech proponents were pleased with Brehmer’s clarification that this gag order doesn’t preempt a statute mandating a disclosure of records.
“The court’s ruling helpfully clarifies the scope of its gag order, which should never have been invoked to block access to public records under California’s public records law,” Gunita Singh, a staff attorney with nonprofit Reporters Committee for Freedom of the Press wrote in an email. “Exemptions to disclosure under the public records law must always be narrowly construed, and the agency's invocation of a gag order from an entirely separate branch of government contravenes this cardinal rule.”
But, there’s still an issue with broad mandates blocking speech, according to advocates.
This gag order violates the First Amendment — this law generally guarantees the right to speak about issues of public concern and parties in a criminal case have a right to speak out, said David Loy, the legal director with the First Amendment Coalition.
“Nothing is more of a public concern than a high-profile criminal case,” Loy said.
Established case law clearly states alternative methods to ensuring a fair trial must be adopted rather than a sweeping, silencing order if both accomplish the same goal, Loy said.
If the goal is to ensure a fair trial, prospective jurors could be extensively questioned to ensure they’ve not stumbled across news stories about the case, and if they have, they can be excused. As a last resort, a high-profile trial could be moved to another county, he added.
“You may not silence people from speaking about something if there’s any less restrictive means to accomplish whatever interest you’re trying to serve,” Loy added.
Juvenile court cases are typically held in secret. SB 39’s intent is to prevent harm from coming to other children cared by DHS or who will be in the future care of DHS by revealing documents showing what government employees did or didn’t do to ensure a child’s safety, according to the law.
