A prosecutor filed a motion Friday opposing a defendant's request in the MS-13 gang murder trial to have witnesses remove their masks while testifying because the masks violate his constitutional rights.

Through his attorney Adrian Andrade, Juan Carlos Lozano Membreno filed his motion on Nov. 12 asking Santa Barbara County Superior Court Judge John McGregor to impose the no-mask order. Not having such an order, he claimed, would violate the confrontation clause of the Sixth Amendment, which gives defendants the right to confront their accusers at trial.

Not requiring that witnesses remove their masks makes it difficult for the jury to conduct a “credibility assessment” — determining whether the witness is lying or telling the truth based on facial movements — according to Membreno's motion. 

“It’s well known that credibility of someone is based not just on the words of their witness but on their body language, especially their facial expressions,” Andrade said. “Someone who rolls their eyes, laughs at sorrow [and] scorns a rebuff tells all of us what they really mean despite their words.”

But in the opposition filed by Senior Deputy District Attorney Ann Bramsen, who leads the prosecution team, a witness shouldn’t have to remove their mask due to the COVID-19-related county health restrictions. She said that covering only a portion of the face won't interfere with the jury’s ability to judge the witness’s demeanor.

Additionally, Bramsen cited safety concerns and “substantial” community transmission of the coronavirus within Santa Maria, based on Centers for Disease Control and Prevention criteria.

“Like sunglasses, the mask is an object that blocks jus tone part of the face,” Bramsen said. “The remainder of the face, the witness’s body language, posture, tone and attire are still fully observable by the trier of fact.”

Membreno and nine other defendants are members of MS-13 charged with multiple counts of murder and gang conspiracy in connection to the killings of 10 people in the Santa Maria Valley from 2013 to 2016.

The FBI considers MS-13 to be a “violent transnational criminal organization” with origins in Los Angeles, El Salvador and with various cliques throughout the United States, including the Santa Maria Little Salvy clique on the Central Coast.

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McGregor split the 10 defendants into two groups of five people each after ruling on Dec. 20, 2019 that packing all defendants, their attorneys and translators into one courtroom would violate constitutional rights.

Membreno, Marcos Manuel Sanchez Torres, Traquilino Robles Morales, Juan Carlos Urbina Serrano and Luis German Mejia Orellana are being tried in Dept. 8 of Santa Maria’s Superior Court. Opening arguments began last week.

The second group includes Jose Balmore Saravia Lainez, Jose Ricardo Saravia Lainez, Jose Juan Sanchez Torres, Jose Narciso Escobar Hernandez and Olvin Serrano, who are being tried separately in Santa Barbara. The group is in jury selection.

All 10 defendants have pleaded not guilty.

In Membreno's motion, Andrade cites academic literature, including Charles Darwin, to illustrate the importance of using facial expressions to determine credibility, which "is the sole province of the trier of fact," according to the Nov. 12 motion. 

Jurors are also allowed to use demeanor to determine credibility, Andrade added. 

Bramsen cited U.S. Supreme Court case Maryland v. Craig, in which the late Justice Sandra Day O'Connor wrote that "face-to-face" confrontation could be limited to protect the psychological well-being of a child witness who testified against her accuser in a separate room via one-way closed-circuit television. 

The trial resumes at 8:30 on Nov. 29 in Dept. 8 of Superior Court in Santa Maria.