Patriot’s Aaron Hernandez’s Best Catch Ever:

The one catch Aaron Hernandez will always remember is when the Massachusetts Superior Court bosses tossed him Judge Garsh to sit on his case.

Here’s why Aaron Hernandez will forever be delighted Judge Garsh is in charge of his trial. She and the prosecutor McCauley trying the case have had a history of bitterness between them. Now the judge might be the fairest person in the world, as we all think of ourselves to be, but having been attacked in public by the prosecutor who questioned her competence she’d have to be super human not to have some bias against him. Think of yourself, how would you feel about someone who went to a newspaper reporter, said you weren’t up to doing your job, and you read about it in the morning paper. I don’t suppose you’d be inviting him over to your next Super Bowl party.

Here’s what the prosecutor McCauley said to the New Bedford Standard-Times about Judge Garsh which was reported in the newspaper. He said she “issued unfair rulings on evidence.” McCauley had just finished a three week trial in front of her which had 80 witnesses. He said the evidence he offered “was repeatedly limited or excluded by . . . [Judge Garsh] who exhibited antagonism to the commonwealth’s case throughout the course of the trial.” By the way this wasn’t the statement of a sore loser since he won the case.

McCauley went on saying according to the paper that she appeared to have had no background in a murder trial like the one he was trying. He said the prosecutors expected “more from the witnesses and judges who hear these more serious cases.”

From my experience things had to be quite bad and trying for McCauley to speak out like that. But it gives you an idea of how they must feel about each other. You’d think that the powers-that-be when confronted with a case like that of Aaron Hernandez knowing it will be paraded before the nation would strive mightily to ensure that it is tried under circumstances where there would be no question about its fairness.

Remember Whitey Bulger’s case. There the trial judge was a former prosecutor who worked with other prosecutors during the time Whitey was being protected by the FBI. The judge may have had to rule on evidence relating to those other prosecutors. He was told to stand down because the public may perceive he could not be beyond all suspicion in his handling of the case. In his situation there was no showing of previous antagonism. Here we know of past cat fights.

Why it matters is judges have what is called wide discretion in deciding what evidence will be admitted at trial. You’ll understand it better with this example we’ve talked about before. FBI agent John Connolly was convicted of obstructing justice based in part on the testimony of Frank Salemme. After his trial it appeared that Salemme had committed perjury at his trial.

The trial judge had to decide if the perjury entitled Connolly to a new trial. He found it didn’t. He very well could have found it did. On appeal the court upheld him saying that was in the judge’s discretion even though in other cases such a situation brought about a new trial.

Another example is the way in which a case is handled. There are times when you have to ask a question similar to one you’ve asked before to approach a situation differently and to refresh the jury’s memory of the witness’s prior answer. The other side might interrupt saying: “objection, asked and answered.” The judge has to rule. If she upholds the objection she can obstruct the flow of the case and perhaps deprive the jury of important evidence.

Other examples are when one side objects with vague objections like “relevence” or “materiality” or “leading the witness” just to throw other counsel off pace and to distract the jury. The decision of the judge telling counsel to rephrase the question can hurt one side while helping the other. Add to that the judge’s attitude toward counsel which can affect the way a jury views the lawyer. If the jury notices the judge favors one lawyer it may do the same.

That is why it is important a judge be as neutral as possible and not carry any past baggage into a case. That is what we have in most cases. Unfortunately we don’t have it here which means every ruling of the judge in Hernandez’s favor like the one keeping out the texts will be questioned.

Her history is that of favoring the defense. McCauley said she exhibited antagonism to him throughout a prior murder trial. That’s not good for our system of justice. But is is certainly good for Hernandez who feels like he scored a touchdown with that catch.