Aaron Hernandez and Judge E. Susan Garsh

(1) Judge-Susan-Garah_20131021060743729_660_320I’m wondering about how Judge E. Susan Garsh’s suppression of the information that was contained on the telephone and Ipads seized from the home of Aaron Hernandez will affect the prosecution’s case. Is any of it crucial to the proof of his guilt? Is it just corroborative of other evidence? Or, is it of no importance, and if the latter, why did the DA want to put it into evidence.

I assume it is either of the first two: crucial or corroborative. The Bristol DA now has to make a decision whether to appeal her ruling. If  the judge was wrong in her decision and the DA takes Hernandez to trial and loses, her mistake will never be remedied. A person can only be tried once if acquitted in almost all cases. (You may recall FBI agent John Connolly was tried twice.)

Any legal errors made before or during the trial disappear once a person is found not guilty. So the time is now, before the trial starts, for a prosecutor to appeal a judge’s decision keeping evidence out of the trial. Obviously if the evidence is crucial, I’d expect the DA to appeal. Or even if it is just corroborative, the DA should appeal. Juries sometimes need the additional corroboration to push them to a conclusion.

I’m reviewing Judge’s Garsh’s findings and will  give my opinion on them soon. I’ve been trying to find out something about her. I heard she was quite pro-defendant.

Then I read about defense lawyers extolling her for her fairness. One suggested that she was “very reasonable to deal with it. . . . She’s very objective. . . . She plays it right down the middle.” If you know anything about the way the system functions, for defense lawyers to praise a judge so highly usually indicates she’s sitting in their corner.

When the DA heard she was appointed to the Hernandez case he refused to comment. It seems that the prosecutor who is trying the Hernandez case for the DA’s office, First Assistant District Attorney William McCauley, and Judge Garsh aren’t exactly bosom buddies. In 2010 he tried a murder case in front of her where he convicted the defendant. 

Here’s what is reported about that case: “After the three-week trial — which featured more than 80 witnesses — McCauley told the New Bedford Standard-Times that Garsh issued unfair rulings on evidence, which McCauley added, “was repeatedly limited or excluded by a trial judge who exhibited antagonism to the commonwealth’s case throughout the course of the trial.” 

McCauley said Garsh appeared to have had no background in a murder trial like Duarte’s, and added that the district attorney’s office expected “more from the witnesses and judges who hear these most serious cases.”

I don’t know about you but it seems quite odd to me for a high profile case like the Hernandez case to be given to a judge who has had run ins with the DA’s office on prior occasions. Barbara J. Rouse the Chief Justice can pick from 79 judges and she picks the one with a history of animosity with the DA. That doesn’t sound like she’s using the best of judgment in making that pick. You have to wonder what’s behind it?

ADA McCauley said Judge Garsh had no background to be handling murder trials. It’s highly unusual for an ADA to go after a judge like that. I checked to see her credentials.

She was born in 1947 making her rushing into her late 60s. As you know the people of Massachusetts passed an amendment to the constitution that requires judges to retire at 70-years-of age. (How the judges ignored the Constitution and continue to sit, some into their 90s, is a story for another day.)

22 years after being born she graduated from Barnard College in New York City. Barnard College is a private women’s liberal arts college which has been affiliated with Columbia University since 1900. She went from there to Harvard Law School from which she graduated in 1973.  She clerked for a year with Judge Levin Campbell, a 1951 Harvard Law School graduate.

From there she went to the white shoe law firm of Bingham, Dana and Gould where she stayed from 1975 to 1993. That’s the type of firm that shies away from criminal work. She then became a judge. She’s led a sheltered life with little or no experience in criminal work. I’m beginning to get the ADA’s point.

An internet site called Judgepedia which gave me her background has a section called: “Notable Cases.” In her 21 plus years on the bench only one case is listed. It is the Aaron Hernandez murder trial. 

Garsh can look into the offing and see the end of her judge’s trail looming on the horizon. Is this a case where a judge wanted to go out with one notable case on her record so she lobbied to get this one?  Did the confederacy of judges require Chief Judge Rouse to give this to her despite her ongoing feud with the DA?

Garsh’s decision suppressing evidence may indicate a continuing animus to the DA. Maybe not, but the unusual way in which she has been assigned the case can make one wonder what’s up. It makes one feel uncomfortable about the case.

It’s hard enough to prosecute a case when the ring is level. But when you come into it and see that the judge and defense lawyers are wearing the same colors and in the same corner, you know you’re entering into a meat grinder.

This is too big of a case to have these problems. With the nation watching, I’d have thought everything would have been done to make it appear that both sides would be treated fairly. Right now that does not appear to be the situation.

6 replies on “Aaron Hernandez and Judge E. Susan Garsh”

  1. ” The Law is what the Judge says it is. ” …. or words to that effect

    . by Matt Connolly ( Always liked that one. If a song it might be named THE BALLAD OF JOHN CONNOLLY)

  2. Matt, I see the fine distinctions you are making, about some leading questions being allowed to move the trial along. But in Wyshak’s and other federal prosecutors’ cases, as I’ve heard and read about them, the leading questions are constant and go to the heart of the matter and are a deliberate tactic and they do contaminate and prejudice the jury in my opinion. I would amend the law to say (1) no prosecutor should knowingly ask a leading question (except to move the case along: You are from Hyde Park and work at HoJos, Mr. Smith?”; (2) judges should reprimand and prevent prosecutors from asking leading questions even when the defense counsel fails to object. 3. Defense counsel who fails to object to leading questions shall be reprimanded by the judge.
    BEYOND THE LEADING QUESTION ISSUE: I see federal judges and federal prosecutors knowingly violating the rules of evidence and rules of procedure. They think it’s a game to put people in jail, bankrupt them an destroy their reputations. At least they act like it’s an insider’s game, in my humble opinion. It’s a high stakes game of federal judges and federal prosecutors trampling on fair trial, due process and other constitutional rights.

  3. Gee. It would appear to me, not an esteemed member of the bar, that qualification for judgeship is like virginity status – either you are, or you are not.If she was not qualified to be a judge, then what has she been doing these past twenty-one years? While it may appear better that a judge with experience presiding over many complicated murder cases may be preferable to lessen the chance of grounds for appeal, either she is qualified to preside over this case, or she is not. Besides, what would be considered an “insignificant” murder trial, or are only prosecutors or defense attorneys who have handled many murder cases to be considered “qualified” to preside over a murder trial?

    Let me ask this question another way. Would it not be more problematic if a judge who had a demonstrated history of tolerating prosecutorial misconduct was selected to hear this case? Pardon my directly invoking Godwin’s Law on you, but are you stating a preference for the Roland Freislers of the courtroom?

    1. Ed:
      You perhaps don’t understand that the background of a judge makes one a better judge in one area than another. Just like being a lawyer doesn’t mean one can practice well in all areas, so with judges. They have their strengths and weaknesses. Judges who come from the criminal bar usually try to avoid complex civil cases and judges from the non-criminal side are not as strong in handling those cases as those who came from those areas. That a person is made a judge does not mean she is qualified to handle all types of cases. I thought that would be obvious to most people.

      Your question shows a lack of understanding of the system. Prosecutorial misconduct is not tolerated anywhere in the state and will cause a prosecutor to lose his ticket. The best type of trial is when the field is even. When a judge has a history of problems with a DAs office it is not wise to have her sitting on such a prominent case.

      As for your reference to a Nazi prosecutor since you seem to like Wikipedia perhaps you can go back and look at what Mike Godwin said about his law: “I wanted folks who glibly compared someone else to Hitler or to Nazis to think a bit harder about the Holocaust”. How you bring the Nazis into this discussion is certainly beyond my ken.

  4. Matt, informative article; info not found in Main Stream Media. I’ve seen judges, newspapers and prosecutors collude to the detriment of justice. And I’ve heard of anti-prosecution judges. It makes me wonder how and why she got assigned this high profile case.
    A lot about the judicial system in Boston, federal and state, makes me wonder. For example, as all law students know, a prosecutor can’t ask “leading questions.” Yet Fred the Fed Wyshak not only constantly does so—a fact noted in many newspaper articles—but the federal judges allow him to get away with it. There’s corrupt thinking in some legal circles that at trial even though the government prosecutor knows he’s violating a rule of evidence, he should try to do so, if the judge lets him get away with it. So you see Federal Prosecutors constantly asking leading questions, making comments which they know if objected to will be striken “the jury is ordered to disregard the prosecutor’s last statement or question” (after the jury’s mind already has been contaminated by the prosecutors’ intemperate remark). In John Connolly’s Miami case, I just cannot believe that Fred the Fed Wyshak did not know that the Statute of Limitations had run on the Murder by Gun Count—it had run 24 years prior to the charge being inserted at the end of trial—and I can’t believe Wyshak did not know that the so-called Florida Enhancement statute did not apply to Connolly’s case. But Wyshak and the FEDs then and now continue to push and appeal these legal inanities, as they continue, I bet, to knowingly violated the rules of evidence by making extemporaneous remarks, by asking leading questions, etc. By the way, how’s that investigation going into who in the Boston Office of the Department of Justice leaked Bill Bulger’s Grand Jury Testimony and who sent two FBI agents to Bill Bulger’s house to harass his wife and daughter when Bill Bulger was away in Washington D.C. testifying before Congress? What other constitutional rights and statutory rights of the citizens are the FEDs in Boston violating? What’s afoot in our judicial systems? Let’s get to the bottom of this broken system.

    1. William:

      There is at least a perception problem when a judge who has had a run in with the DA’s office is put onto a big case like Hernandez. Even more so when the ADA who is to try it has had a personal run in with her before.

      As for leading questions, it is up to the other side to object to them. In Connolly’s trial there were not many objections, I figured that was agreed between the counsel and the defendant; in Whitey’s the lawyers had to object to everything pursuant to Whitey’s orders. Many leading questions move the trial along so only those that reach into critical areas are normally objected to in the course of trials.

      It is a federal crime to leak grand jury testimony and to publish it. That case on the leak of Billy Bulger’s testimony was open and shut; but when the leaker is supposed to investigate itself, well you know what happens in that case.

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