The judge in the murder case of former New England Patriots player Aaron Hernandez says she will not recuse herself from the case.
Such motions are seldom filed, and even more rarely are they filed by the prosecution. But at a hearing in Bristol County Monday, prosecutor William McCauley said Judge Susan Garsh treated him unfairly in a previous trial.
After the hearing outside Superior Court in Fall River, District Attorney Samuel Sutter tried to put the most positive spin on things.
"We never said in our filing that Judge Garsh, whom I have a great regard for, was biased against the commonwealth," Sutter said.
Perhaps, but what McCauley, Sutter's first assistant prosecutor, had said was that the judge was antagonistic toward him and the commonwealth, that she was "accusatory," erroneous in her findings, "dismissive," and "discourteous and demeaning" during a trial in which he appeared before the judge three years ago. And in which he won a conviction.
"The court continued in its behavior, its tone, its manner directing toward me what was clear,
sending signals that the jury would naturally think that I was doing something wrong," McCauley said during Monday's hearing.
If the prosecution's argument seemed light on specific evidence of judicial bias in that past trial, the defense said it was "utterly devoid of factual or legal merit."
McCauley said asking the judge to step down had nothing to do with "judge shopping." But retired Superior Court Judge Robert Barton said that's what this was all about.
"I don't think there's any question about it. They don't want her to sit on this case," Barton said. "In their minds, she's not the idyllic judge for the government."
Defense lawyers have the obligation of being zealous advocates for their clients, but prosecutors have the ultimate obligation of seeing that justice is served, more important even than winning convictions. So when prosecutors seek to have judges step down, and when they accuse judges of being unfair, the issue becomes much more serious because it goes to the integrity of the criminal justice system.
Jamie Sultan, Hernandez's defense attorney, argued against the motion, saying the prosecution failed to meet its burden.
"The fact that a judge may have ruled against me in a case does not allow me to have a lifetime exemption from appearing before that judge again," Sultan said. "That's essentially what Mr. McCauley is looking for here."
The prosecutor cited "a well-known and publicly documented history of antagonism" between himself and the judge. He then argued that unless Judge Garsh stepped down from the current case, "this relationship will be exploited and sensationalized by the media" and thereby "prejudice the defendant and the the public perception" of the court.
At the hearing Monday, Judge Garsh — who had been prevented by judicial ethics from defending herself when McCauley lashed out against her in the press three years ago — had the opportunity to respond in the courtroom.
"I harbor no bias against the commonwealth or against First Assistant District Attorney William McCauley or against the defendant," Garsh said.
The defendant, Hernandez, whose name was barely mentioned, is not allowed to watch football while in jail. But here in the courtroom, he could hear the judge blitz and sack the prosecutor with her legal argument.
"That the commonwealth may believe that ADA McCauley might be impaired in the performance of his duties is not grounds for recusal," she added.
The antagonism was unilateral, the judge said, and she had none.
Outside, Sutter conceded. "We had a fair hearing," he said. "Having so ruled, we will not appeal."
Barton, who formerly sat on the state's Commission on Judicial Conduct, called the prosecution's actions frivolous and transparent.
"She denied the motion to recuse. All they have to do is go to the Appeals Court if they think they are so right," Barton said.
But they aren't.
"And what does that say?" Barton added "That says, 'We don't think we've got enough to tip it over.'"
Having questioned her fairness, the prosecution can now hope the judge will question herself when she makes future decisions.
This program aired on October 22, 2013.