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SJC justice won’t change gag order in Hernandez case

Aaron Hernandez

AP File

Aaron Hernandez.

A state Supreme Judicial Court justice on Monday refused to alter the gag order imposed by a Bristol County judge on prosecutors who are pressing the murder case against former New England Patriots star Aaron Hernandez.

Justice Fernande R.V. Duffly ruled on the gag order issued by Bristol Superior Court Judge E. Susan Garsh. The order applies to both Bristol District Attorney C. Samuel Sutter’s office and the defense team, but only Sutter challenged the scope of the order.

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Hernandez, a former tight end for the Patriots, is being held without bail after pleading not guilty to a first-degree murder charge that alleges he orchestrated the murder of Odin L. Lloyd of Dorchester in an industrial park not far from Hernandez’s home in North Attleborough.

Sitting as a single justice, essentially a gatekeeper for the SJC, Duffly wrote Monday that Sutter had neither shown that his office had been harmed by the order, nor laid out a convincing case that the gag order would hurt the way the prosecution operates in the future.

“The Commonwealth has failed to establish that the extraordinary relief available [to the SJC] is appropriate,’’ Duffly wrote, alluding to special powers the SJC has to change a judge’s order before a criminal or civil trial begins.

“The Commonwealth has shown nothing but speculative future harm should it or the defendant make, or determine there is a need to make, an extrajudicial statement concerning some as yet to be determined event,’’ Duffly wrote.

Duffly also praised what she called Garsh’s “carefully crafted order’’ that she concluded simply took existing legal ethical rules and applied them to both the prosecution and defense in the Hernandez case.

“The order does not apply to potential trial witnesses, places no restraints on the media or on public access to any courtroom proceeding, and does not involve attorney discipline for violation of the rules of professional conduct,’’ Duffly wrote.

Duffly also wrote that the prosecution can ask Garsh to modify the order down the road, if prosecutors can show it is having a negative impact on the case from their perspective.

In an e-mail, Sutter spokesman Gregg Miliote said the district attorney was studying the ruling before deciding what the next step would be for his office.

“The district attorney is surprised and disappointed,’’ Miliote wrote. “But he won’t be able to comment until he has read through the entire decision.’’

Michael Fee, a member of Hernandez’s defense team, referred a reporter to the defense’s filing in the case and declined to comment on Duffly’s decision.

John R. Ellement can be reached at ellement@globe.-com. Follow him on Twitter @JREbosglobe.
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