Judge imposes gag order in Hernandez case


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.

11 responses to “Judge imposes gag order in Hernandez case

  1. After this judge would not even let the prosecution hear Hernandez’ jailhouse conversations, I criticized not only her, but the culture of the Massachusetts court system in general. For this I was roundly attacked. After reading this article, hopefully people will realize exactly what I was talking about, what prosecutors have to overcome in this state, much more than almost any other state. Judges are supposed to be advocates for justice and the rule of law, not advocates for the accused or the prosecution for that matter.

  2. Yes. We should make it as easy as possible to convict because, after all, it’s not like mistakes have ever been found.

  3. So all you need is an “unreasonable” paralegal and you can leak all the information you want to? Or you just need to have “unreasonable” people determining whether or not that information “might” sway some sort of incrimination against the defendant?

    I am not even a lawyer or in the law business and I can see holes here I could drive a truck through.

    I can see a legal argument now if somebody gets charged with violating the gag order. Here’s the defensive strategy:

    1) Bring up the 1st Amendment until the judge states for some stupid reason that isn’t a defense.

    2) Challenge anyone to define the word “reasonable.” The definition of the word from a dictionary is not admissible in court. I know this from watching an actual case on TV.

    3) If that is circled around, question what a “reasonable person” is. Then question who gets to determine what a “reasonable person” is. Then question the notion that nobody could really know what type of person would react in any situation…it is all hypothetical.

    The case could stagnate forever.

Leave a Reply

You must be logged in to leave a comment. Not a member? Register now!