Prosecutors and attorneys for former New England Patriots tight end Aaron Hernandez sparred for an hour Monday, squabbling over what steps are reasonable to manage pre-trial publicity in the headline-grabbing murder case.
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The hearing centered on the request by Hernandez’s lawyers that Massachusetts Superior Court Judge E. Susan Garsh issue a strongly worded gag order in the case against the former football star. It was the third time Hernandez’s lawyers have sought such an order — and though Garsh ultimately took the question under advisement, she indicated that she will issue a written directive for attorneys on both sides.
It remains to be seen, however, whether it will go beyond her earlier admonitions to lawyers on both sides that both state law and the rules governing the conduct of attorneys established clear bounds for what they could — and could not — discuss publicly.
“Mr. Hernandez is entitled to a fair trial,” one of his lawyers, Michael Fee, argued during the hearing. “He is entitled to a jury panel that has not been poisoned by either false or sensational statements.”
Hernandez’s attorneys have accused prosecutors of an orchestrated campaign of leaks designed to smear the former Pro Bowl player who is being held without bail in the June 17 murder of Odin Lloyd.
William McCauley, first assistant district attorney, shot back, accusing defense lawyers of “wild accusations.”
The source of defense attorneys’ ire? Stories and photographs posted by multiple news organizations on Oct. 27 that detailed the fact Massachusetts state police officers had served Miami Dolphins center Mike Pouncey with a subpoena to testify before a grand jury. Citing unnamed sources, the stories reported that Pouncey’s testimony was being sought in the ongoing investigation of Hernandez — and some stories indicated that the grand jury was considering gun trafficking allegations.
Pouncey, a college teammate and good friend of Hernandez’s, was handed the subpoena in a hallway in the bowels of Gillette Stadium after the Dolphins played the Patriots.
And Hernandez’s attorneys accused prosecutors of tipping off reporters in what they asserted was in “brazen disregard” to an earlier court order limiting pre-trial publicity.
“The rules have been flouted,” Hernandez’s attorneys wrote in their motion asking again for a tougher gag order. “Having been warned through the court’s measured but clear order, the commonwealth less than two weeks later orchestrated a publicity stunt in front of reporters that was guaranteed to result in prejudicial pre-trial publicity, and ‘law enforcement sources’ resumed their relentless campaign to leak statements to the media that would foster a negative image of Mr. Hernandez in the public domain.”
Prosecutors refuted the assertions.
At one point in the hearing, McCauley ticked off a series of assertions made by defense attorneys, beginning with the claim that prosecutors tipped off reporters to plans to subpoena Pouncey as part of a “publicity stunt.”
“That’s not true,” McCauley said forcefully of each assertion.
“Their comment, their suggestion that we have moles out there leaking information about the case is factually not true,” McCauley also said.
He also said that some of the information in the articles in question was not accurate — and argued that meant it could not have been provided by anyone who was actually involved in the case. However, he told Garsh he could not specifically talk about the inaccuracies because grand jury investigations are, by their very nature, secret.
In the end, the two sides agreed to specific language on five points drafted by Hernandez’s lawyers. However, that language was drawn directly from existing laws and rules, and whether Garsh will go further in her ruling was in question.
She told both sides that they could submit proposed language on what steps would be “reasonable” to make sure those laws and rules are followed.
It wasn’t clear when Garsh will rule.
In addition, she scheduled the next hearing in the case for Feb. 5. There, she may take up the question of whether prosecutors have shared all the evidence they are supposed to with defense lawyers.
Prosecutors have alleged that late the night of June 16 Hernandez summoned two associates from his hometown of Bristol, Conn., to his home in North Attleboro, Mass. From there, according to court documents, the three men drove to the Dorchester neighborhood of Boston, where they picked up Lloyd.
Lloyd, a semipro football player, was dating the sister of Hernandez’s fiancée, Shayanna Jenkins.
From there, prosecutors allege that Hernandez drove back to North Attleboro — roughly 50 miles from Boston — and pulled into a secluded area in an industrial park. There, Hernandez has been accused of shooting and killing Lloyd with a .45-caliber Glock.
Prosecutors have alleged that Hernandez was upset with Lloyd because the man had been talking to people at a nightclub whom the football star had problems with.
The two men with Hernandez, Ernest Wallace Jr., 41, and Carlos Ortiz, 27, have been charged as accessories after the fact to murder. Hernandez’s fiancée has been charged with perjury for allegedly lying to a grand jury, and a cousin of his has been charged with contempt of court and conspiracy to commit accessory after the fact to perjury.
In addition, Hernandez is part of an ongoing grand jury investigation into a July 2012 double-murder in Boston. A vehicle that matched the description of one used in that killing was discovered in the garage of a home in Bristol owned by Hernandez’s uncle.
He also is the subject of a federal lawsuit filed by a man who alleged that Hernandez shot him in the face in Florida after a dispute at a nightclub last February.