Attorneys on Thursday prepared for the second trial of a woman accused of murdering her daughter by presenting motions to the judge.
Vanessa Patricio Cruz, 31, is charged with murdering her 20-month old daughter, Jocelin Gutierrez, in 2005 by hitting her over the head with a remote control. The case went to trial in May, but after a bailiff error during the jury deliberation, Judge Burke McCahill was forced to declare a mistrial.
Public defenders Daniel Griffith and Kelly King and Chief Deputy Commonwealth's Attorney Nicole Wittmann, along with Assistant Commonwealth's Attorney Jason Faw, filed a combined total of five motions.
Much of the 90-minute hearing was devoted toward debating whether or not Cruz's illegal immigration status could be brought up in court.
“It provides potential prejudice,” Griffith said.
McCahill ultimately ruled that the commonwealth could ask Cruz's long-term boyfriend and father of her other two children, Jalacio De La Cruz, if he has concerns over whether a conviction could result in her deportation, but may not specifically reference her immigration status.
McCahill also warned the commonwealth to steer clear of loaded terms like illegal immigrant or anchor baby.
“Jurors aren't stupid,” McCahill said. “They're going to see she's Spanish-speaking and has an interpreter.”
The second large debate came from whether or not the defense could bring forward a plan between investigator Wayne Promisel and police interpreter Katie Baldwin. The plan was for Baldwin to develop a rapport with Cruz during the interrogation by telling her that she, too, had children, which wasn't true.
Ultimately, the only thing Baldwin told Cruz during the March 4, 2012, questioning was that she was Catholic.
“She would tell you she was Catholic if you asked her now,” Faw argued.
McCahill ruled that because the plan was not used, it is not relevant and would be a distraction.
The judge did, however, agree that the defense could use information from the consultation Assistant Chief Medical Examiner Constance DiAngelo received from University of Virginia neuropathologist Beatriz Lopez in 2005.
DiAngelo originally sought a consultation because the case was, by her own admission, difficult. Lopez could not establish a cause of death, though DiAngelo ultimately ruled it death from blunt force trauma.
In 2011, when the case was re-opened, DiAngelo elected to consult Bennett Omalu, a forensic neuropathologist who had began consulting with the Virginia Medical Examiner's Office. Omalu would ultimately become a key witness for the commonwealth, giving hours worth of testimony.
The other two motions were mutually agreed upon clerical matters, including presenting better quality photos in court.
The second trial for the Cruz case will begin Dec. 16 at the Loudoun County Courthouse.