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Recusal of Hernandez judge sought
FALL RIVER, Mass.
Prosecutors in the murder case of former football star Aaron Hernandez made it clear Wednesday they wanted a new judge — one of two surprising developments in what had been shaping up as a routine court hearing to discuss pending motions.
In a motion filed in the midst of the hearing, prosecutor William McCauley cited Superior Court Judge E. Susan Garsh’s handling of a 2010 murder trial as reason for her to step aside. In that case, McCauley charged, she “exhibited antagonism and bias toward the prosecution throughout the case.”
Defense attorney James Sultan made it clear he will fight the effort to get Garsh to recuse herself from the case in which Hernandez, the former Pro Bowl tight end, faces murder and weapons charges in the June 17 killing of Odin Lloyd.
The second surprise: The former New England Patriots star took the stand to answer questions from the judge about a potential conflict of interest involving one of Hernandez’s attorneys, Michael Fee.
Fee is law partners with a woman who is married to Assistant District Attorney Patrick Bomberg, who is one of the prosecutors in the case.
Many of the questions were rudimentary — did he speak and understand English, was he under the influence of drugs, had he been diagnosed with a mental illness. At one point the judge asked him about his education — “three years of college,” he said — and his employment.
“I played football — NFL,” Hernandez replied.
But she told Hernandez that she wanted him to understand the potential ramifications of the ongoing court case.
“Do you understand if you are convicted of murder in the first degree the sentence the judge would be required to impose would be life in prison without the possibility of parole?” Judge Garsh asked him.
“Yes,” Hernandez replied.
Hernandez, 23, has been accused of summoning two associates from his hometown of Bristol, Conn., late the night of June 16 to his home in North Attleboro, Mass. At that point, prosecutors allege that Hernandez convinced Lloyd he was coming to pick him up for a night out and that the three of them drove to the Dorchester neighborhood of Boston. Lloyd allegedly got into a rented Nissan with the trio, and Hernandez is accused of driving him to a secluded field not far from the player’s mansion and shooting him multiple times.
The alleged motive: Hernandez was angry that Lloyd had been talking with people he had problems with when the two of them visited a Boston nightclub a few days earlier.
Lloyd, 27, was the boyfriend of Shaneah Jenkins — the sister of Hernandez’s fiancee, Shayanna Jenkins.
Five others face charges in the case — Shayanna Jenkins has been accused of perjury; the two men allegedly with Hernandez at the time of the killing, Ernest Wallace Jr. and Carlos Ortiz, have been indicted as accessories after the fact; a cousin of Hernandez’s, Tanya Singleton, has been charged with contempt of court and conspiracy to commit accessory after the fact; and a man named Alexander Bradley has been arrested and ordered to testify before a grand jury investigating a 2012 double murder in south Boston.
Prosecutors are probing a possible link to Hernandez in that case.
Wednesday’s hearing was expected to focus on the defense’s motion for a gag order — which the judge denied — and its effort to put prosecutors on notice about the handling of evidence. In that instance, the judge made it clear that prosecutors needed to notify defense attorneys in the event any evidence is lost or damaged.
But then it turned when McCauley said he wanted the judge to recuse herself.
McCauley cited the 2010 case of a man named George Duarte, who was accused of killing a 15-year-old at a New Year’s party. Although McCauley won a conviction, he called out Judge Garsh after the case, questioning rulings that he charged were slanted to the defense.
In the motion he filed in the midst of Wednesday’s hearing, he charged that Garsh exhibited bias in that case and should step aside from hearing the Hernandez case.
“The perception of bias was manifested by the judge’s disparate treatment of counsel, needless interference with the prosecutors’ presentation of evidence, unfair exercise of discretion, disparagement of the prosecutor before the jury (by words, tone and conduct) and erroneous rulings of law,” McCauley wrote in the motion. “Such conduct created the perception of bias toward the prosecution which impaired the fairness of the proceeding.”
Judge Garsh, who had taken over the case in September, questioned the timing of the motion.
“Is there any explanation for why all these days and weeks have gone by and it hasn’t been raised?” she asked McCauley.
McCauley said that he had missed a previous hearing because he was in the midst of a murder trial and had not been told that she had taken over the case until he was informed by a report.
“The commonwealth obviously does not take lightly the filing of a motion to recuse,” McCauley said.
Sultan, one of three defense attorneys, made it clear he will fight the motion.
“We intend to object in the strongest terms to any motion to recuse, your honor,” he said.
Garsh scheduled a hearing Oct. 21 to take up the motion, and a hearing Dec. 13 for further proceedings.
The potential conflict of interest also took those in the courtroom by surprise.
Fee, another of Hernandez’s defense attorneys, disclosed that one of his law partners is the wife of Assistant District Attorney Patrick Bomberg. Fee told the judge that he disclosed the relationship to Hernandez in their first meeting, which occurred just hours after Lloyd’s body was discovered. He also said that steps have been taken inside his law firm to make sure she does not have access to any evidence or documents in the case.
At that point, Judge Garsh asked Hernandez to come to the stand.
He stepped forward wearing tan slacks, a dress shirt, a tie and a Navy blue sport coat. And though his attorneys had been granted permission to have his handcuffs removed, the shackles around his ankles rattled as he walked to the stand.
In the end, the judge concluded that Hernandez was aware of the issue and had chosen to keep Fee on his team without any outside influence or pressure.
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