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Aaron Hernandez Update: Prosecutors' motion for recusal of judge in ex-NFL star's murder case "not a good idea," legal analyst says

Former New England Patriots NFL football player Aaron Hernandez confers with his attorneys during a pretrial court hearing in Fall River, Mass. on Wednesday, Oct. 9, 2013. Hernandez was indicted in August in the killing of 27-year-old Odin Lloyd, a semi-professional football player from Boston who was dating the sister of Hernandez's girlfriend. He has pleaded not guilty. (AP Photo/Brian Snyder, Pool) Brian Snyder

Former New England Patriots NFL football player Aaron Hernandez confers with his attorneys during a pretrial court hearing in Fall River, Mass. on Wednesday, Oct. 9, 2013.
AP Photo/Brian Snyder, Pool

(CBS/AP) FALL RIVER, Mass. - Prosecutors in the murder case against former New England Patriot Aaron Hernandez want the judge to recuse herselfbecause, they said Wednesday, she and the lead prosecutor have a public history of antagonism and she has shown bias.

But, CBS News' legal analyst Rikki Klieman says that request may be a big mistake for the prosecution.

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"I found that motion absolutely stunning," Klieman told CBS This Morning. "We know that defense lawyers go to court a lot and they ask judges to recuse themselves for a whole variety of reasons. In my day of trying cases and of covering cases, I have never seen a prosecutor make this motion."

Klieman said she thinks the motion for recusal "is not a good idea" despite any bad blood that the prosecutor and the judge may have had in the past.

READ: Timeline of Aaron Hernandez murder investigation

During a hearing in Fall River Superior Court Wednesday, Bristol County Assistant District Attorney William McCauley said he wants Judge Susan Garsh to remove herself from Hernandez's case.

McCauley did not detail his reasons in court, but a new filing cited a "well-known and publicly documented history of antagonism" between him and Garsh, stemming from a 2010 murder trial he argued before her.

Though McCauley won a conviction in that case, he was quoted in the media as criticizing Garsh, saying she had unfairly limited or excluded evidence and exhibited hostility.

The filing said the friction would likely be exploited and sensationalized by the media in the high-profile case and could impair the ability of McCauley and Garsh to perform their sworn duties.

"This isn't a matter the Commonwealth takes lightly," McCauley told the judge in court Wednesday.

Klieman says the filing makes the whole district attorney's office "look suspect in the eyes of other judges" because other sources of information say Judge Garsh is very fair.

In fact, defense and civil attorneys who have argued cases before Garsh have praised her as an intelligent and tough, but fair-minded, jurist, the Fall River Herald News reports.

Hernandez attorney James Sultan said in court Wednesday that the defense would strenuously object to the recusal request.

Judge Susan Harsh speaks during a pretrial court hearing for Former New England Patriots NFL football player Aaron Hernandez in Fall River, Mass. on Wednesday, Oct. 9, 2013.
AP Photo/Brian Snyder, Pool
Garsh declined to comment, citing judicial ethics. She didn't address their history in the hearing.

McCauley has previously sought Garsh's recusal in a case. In a 2011 court filing, resubmitted Wednesday in support of the new request, he wrote that she had "exhibited antagonism and bias toward the prosecution throughout the (2010) case" and that he didn't believe she could be free of bias.

Garsh never ruled on that recusal motion because she had to give the case to another judge due to scheduling conflicts, the Herald News reports.

Klieman says a much better move for the prosecution would have been for the prosecutor to recuse himself.

"Prosecutors are actually fungible. You have a whole office full of prosecutors," Klieman said. "If you're going to move to recuse a judge because you have personal animosity or she has it towards you, for heavens sake, why not recuse yourself and let some other prosecutor go ask the questions."

Hernandez, 23, was indicted in August in the killing of 27-year-old Odin Lloyd, a semi-professional football player who was dating the sister of Hernandez's girlfriend. He pleaded not guilty to first-degree murder and five weapons-related charges last month and is being held without bail at a county jail.

The defense has said previously that prosecutors' case won't hold up during a jury trial and they are confident Hernandez will be exonerated.

"We are very, very much looking forward to Aaron's day in court," one of Hernandez's attorneys, Charles Rankin, said outside court Wednesday.

Arguments on the recusal request are scheduled to be heard Oct. 21.

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  • Stephanie Slifer

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