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A judge rejected a request Friday by prosecutors in ex-New England Patriot Aaron Hernandez's murder case for his jailhouse phone recordings, then ordered them to turn over to the defense copies of calls they acknowledged already having.
Judge Susan Garsh said prosecutors did not make a sufficient case for her to order the Bristol County sheriff to release the recordings, but she is allowing them to make the request anew. She said they must provide more information about what led them to believe the recordings are relevant to the case.
Prosecutors are also seeking records of Hernandez's jailhouse visits, including from his fiancee and cousin, both of whom face charges in connection with the case.
Defense attorney James Sultan called the state's request "grossly overbroad" and said prosecutors are on a "fishing expedition."
The ex-NFL player has pleaded not guilty to murder in the killing of Odin Lloyd, a 27-year-old Boston man who was dating the sister of Hernandez's fiancee. Lloyd, a semi-professional football player was found dead June 17 near Hernandez's North Attleborough home.
Hernandez is being held without bail at the Dartmouth jail.
Prosecutors' original filing said the sheriff's department had voluntarily provided "the contents of some of the defendant's telephone conversations." But they disclosed in court for the first time that they have some of the actual recordings. That irked both the defense and the judge, who questioned why the materials hadn't yet been turned over to Hernandez's attorneys. She ordered the prosecution to do so by Monday.
Sultan accused the jail and the Bristol County district attorney's office of being in a "bizarre partnership," saying the jail was acting as an "arm of the prosecution" by handing over information it thought the state would be interested in.
The sheriff's office must be subpoenaed for the recordings and records if the information is to be used at trial. Lead prosecutor William McCauley said he filed the request to comply with the sheriff's "protocol."
The prosecution claims that Hernandez, in the calls, communicated about the murder case in "coded messages" and discussed his "belief about his criminal liability" and the "extent of his control over persons charged as accessories." They say he also talked about other matters related to his co-defendants' "whereabouts and likely criminal liability."
Four others are charged in the case. Ernest Wallace and Carlos Ortiz, who were with Hernandez and Lloyd on the night of the killing, have pleaded not guilty to accessory to murder after the fact.
Hernandez's fiancee, Shayanna Jenkins, has pleaded not guilty to a perjury charge. Hernandez's cousin, Tanya Singleton, has pleaded not guilty to conspiracy and contempt charges.
Also Friday, the judge ruled against a defense request to force prosecutors to disclose whether they think Hernandez was the one who pulled the trigger. They have not said who they believe was the gunman. Requiring them to do so at this point in the case would put prosecutors in a "straitjacket," Garsh said.
The next hearing is set for June 16.