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Judge refuses to modify gag order in Aaron Hernandez case

Aaron Hernandez.

Jonathan Wiggs/Globe File

Aaron Hernandez.

The judge overseeing the murder case in Bristol County against former New England Patriots player Aaron Hernandez refused to modify her gag order Tuesday, concluding that changes sought by District Attorney C. Samuel Sutter are unwarranted.

In a three-page order, 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.

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“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.

Tuesday’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 killing 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.

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In addition to the request to modify the gag order with Garsh, Sutter and the prosecution are also asking Supreme Judicial Court Justice Fernande R.V. Duffly to throw out or sharply trim back the order based on Garsh’s 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,’’ 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 it requires his office to train nonlawyers, and potentially State Police troopers, about the restrictions they must operate under while the Hernandez case is active.

Hernandez’s defense team has said that too many news stories have surfaced in which journalists have attributed their information to people with ties to law enforcement.

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.”

Hernandez is facing two civil lawsuits in Massachusetts, one from relatives of Lloyd and one from the fathers of two men that were shot to death in Boston in 2012. Hernandez has not been charged in the Boston killings.

John R. Ellement can be reached at ellement@
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