The judge overseeing the murder case in Bristol County against former New England Patriots player Aaron Hernandez today refused to modify her gag order, concluding that changes sought by Bristol District Attorney C. Samuel Sutter were unwarranted.
In a three-page order made public today, Bristol Superior Court Judge E. Susan Garsh said her extensive gag order relies on existing ethical rules for lawyers and prosecutors and does not unduly burden Sutter and his prosecution team.
“The Commonwealth has not made a credible showing that any of the required steps are beyond its power to implement or unduly burdensome,” Garsh wrote.
Today’s ruling by Garsh does not end the skirmishing between Sutter and the trial judge, whom prosecutors tried unsuccessfully to have removed from all five Superior Court criminal cases stemming from Hernandez’s alleged role in the murder last year of Odin L. Lloyd in North Attleborough.
Hernandez, who is being held without bail at the Bristol County jail, has pleaded not guilty to first-degree murder and illegal gun charges.
Sutter is asking Supreme Judicial Court Justice Fernande R.V. Duffly, to throw out, or sharply trim back, the gag order Garsh crafted based on her own observations and at the request of Hernandez’s defense team, led by Boston attorneys Michael Fee and James Sultan.
“The order was imposed in the absence of any suggestion whatsoever that the chief evil against which it is aimed was likely to occur; namely, that any member of the prosecution or defense teams would make any extrajudicial statements that prejudiced the defendant’s right to a fair trial,’’ Bristol Assistant District Attorney Roger L. Michel Jr. wrote.
He added, “A trial court’s order that prohibits or limits the speech of lawyers or parties before the court is a prior restraint for First Amendment purposes.’’
Sutter contends that Garsh’s order will also drain state resources because they require Sutter’s office to train non-lawyers, and potentially State Police troopers, about the restrictions they must now operate under while the Hernandez case is active.
Hernandez’s defense team has said in court papers that far too many news stories have surfaced in which journalists have attributed their information to people with ties to law enforcement, and that the continued high level of attention to the Hernandez case could violate his right to a fair trial.
Prosecutors “must acknowledge that it has a duty to prevent the release of prejudicial extrajudicial statements by its agents, the unnamed ‘law enforcement sources’ and ‘sources close to the investigation who were not authorized to speak,’ ” the defense attorneys wrote. “The interests of justice demand that the paramount concern of the prosecution should be ensuring a fair trial for the defendant, not vindicating imaginary First Amendment rights.”
Duffly has not yet decided whether to rule based on the documents filed by both sides or to hold a hearing on the issue, according to the courts.
Hernandez is facing two civil lawsuits in Massachusetts, one from relatives of Lloyd and one from the fathers of two men he is suspected of shooting to death in Boston in 2012. Hernandez, however, has not been charged criminally in the Boston killings.John R. Ellement can be reached at email@example.com. Follow him on Twitter @JREbosglobe.