I wrote recently about the prosecutors in Hernandez case appealing a couple of evidentiary rulings by Judge Garsh to the Supreme Judicial Court (SJC). Justice Cordy who heard the appeal upheld Garsh. He may not have agreed with her but he knew that he was not at the trial and that it is difficult at best to try to evaluate a judge’s rulings in a piece meal manner. He was aware that tradition teaches that trial judges have wide discretion when it comes to evidentiary rulings. He also knew that to do otherwise than to deny such an appeal would be opening the door to others who might not like a trial judge’s rulings on evidence during a trial. This would result in bringing the trial system to a halt if a lawyer during a trial could run up to SJC every time he felt aggrieved by an evidentiary ruling.
That’s why it has become custom for appeal courts not to decide anything relating to a trial until the trial is over and the record complete. It can then review what happened in the context of the whole trial. If error is made, it can remedy it at that time.
The only problem with that is if the Commonwealth loses, that is if the defendant is found not guilty, then the case ends. The Commonwealth has no right of appeal. That is why the Hernandez case prosecutors took the highly unusual step of appealing evidentiary rulings by Judge Garsh which seem to them to be throwing the case for Hernandez.
I can only imagine their frustration that caused them to do something totally out of precedent. They had to know they would receive short shrift at the SJC. They also had to know that if things continue like they are, that if Judge Garsh keeps preventing them from showing evidence that they believe leads to a conclusion of defendant Hernandez’s guilt which they were relying on to show the jury, then Hernandez will walk.
The prosecutors have seen Garsh keep out some of the circumstantial evidence that incriminates Hernandez such as the text messages the victim of the murder sent to his sister minutes before his murder. And remember, the prosecution has publicly complained in the past that Judge Garsh has kept out relevant evidence in other murder cases. Unfortunately there is no provision in our practice for stopping a judge leaning in favor of a defendant and bringing about his acquittal. This is the greatest fear of a prosecutor. Fortunately, it rarely happens.
Here we are seeing one of those outlier situations where a judge with a past history of animosity toward a prosecutors’ office sitting on a case that is quite notorious. I’ve pointed out before that having that situation is detrimental to the perception of fair and equal justice. It just didn’t seem right to start off a high publicity case with a judge and prosecutors who were fighting like cats and dogs. Why it was done I do not know.
I had hoped that the differences between the parties would have been put aside and that the trial would have been conducted in such a way that all would say it was a fair trial. But at this point the prosecutors for the government said in their filing with the SJC they are being deprived of a fair trial. Being used to the complaints of trial lawyers on either side, myself included, about how the judge was siding with the other side I would normally think that was just part of the usual griping that occurs in a trial. Yet this trial started off differently with the open animus so the screams of the prosecutors take on a different color.
It is sad that the prosecutors for the Commonwealth are shouting aloud that they are not getting a fair trial. I’m told the judge is a bright with a lot of experience. That’s why I’m surprised she had let the case reach this state. I’m not at the trial and cannot properly judge what is going on. I do know it is not good from the prosecutors point of view.
Is it the judge has a poor grasp of the rules of evidence? One way to hide this is to routinely rule on evidentiary issues in favor of the defendant. Is she afraid of being overruled by a higher court? One way to prevent this is routinely rule on evidentiary issues in favor of the defendant. There appears to be something rotten in this case and that’s more the pity.