Cases pending in a court of law routinely play out in the court of public opinion. In criminal cases especially, facts supporting the prosecution’s case can be leaked under the broad cover of “law enforcement sources.”
In the murder case pending against former Patriots tight end Aaron Hernandez, the door has been slammed on any further leaks.
On Friday, Judge Susan Garsh issues a so-called “gag order,” which requires both sides to take “reasonable precautions” to prevent prejudicial disclosures. The order also requires prosecutors to investigate any reported leaks.
Via the Boston Globe, the order provides in part that “[n]one of the lawyers appearing in this case or any person with supervisory authority over them shall release or authorize the release of information about this proceeding that a reasonable person would expect to be disseminated by any means of public communication if the lawyer knows or reasonably should know that it will have a substantial likelihood of materially prejudicing potential trial jurors or witnesses or will have a substantial likelihood of heightening public condemnation of the accused.”
That’s a long, convoluted standard with plenty of nooks and crannies, for both sides. The prohibition on the release of information “that a reasonable person would expect to be disseminated” publicly if the lawyer “knows or reasonably should know” that the information will have a “substantial likelihood” of swaying jurors or increasing “condemnation” of Hernandez ultimately can be more of a sword for the defense than a shield for the prosecution, because terms like “reasonable person” and “reasonably should know” and “substantial likelihood” ultimately will be assessed by Judge Garsh. Given that the prosecution at one point tried to have Judge Garsh removed from the Hernandez litigation due to alleged bias against prosecutors in a past case, the prosecution likely will try to avoid any situation in which she would have the ability to conclude that this complex standard was violated.
Which means that the prosecution should stay as far away from the line as possible, providing no information to the media. Moving forward, the media will get its information on the case from the court filings and the courtroom proceedings, like the media does in virtually every other criminal case.