Smith’s defense asks court to treat both sides equally in release of non-public data

By Terry Lehrke, News Editor

Prosecutors in the murder case of Byron Smith asked Judge Douglas Anderson, to order that his defense not release evidence of the case without a court order.

Smith’s attorney, Steve Meshbesher filed a motion Feb. 15, asking that the same be held true for the prosecution.

Thursday, during a hearing on the motion, Meshbesher told the judge he felt “compelled to respond” to the prosecution’s motion.

His client  is charged with two counts of second degree murder for shooting Nick Brady and Haile Kifer, during an alleged burglary at his home Thanksgiving Day.

Meshbesher said he didn’t want to keep information from the public, but that the defense position was that Smith did nothing wrong.

“We don’t believe the state should have carte blanche freedom to say what it pleases about evidence in its possession,” he said.

He asked the court, if so inclined, to issue an order that applies to both sides in regard to releasing evidence without a court order “To be balanced and fair,” he said.

Prosecuting the case is Washington County Attorney Pete Orput, acting as special assistant to the Morrison County Attorney’s office, as is Brent Wartner, also with Orput’s office.

Wartner said the prosecution’s request for a protective order was one-sided because, “Only one side has disclosed information.”

The prosecution provided more than 400 pages of law enforcement reports, transcripts of audio-taped statements, photos and audio recordings.

In another motion filed Thursday, Meshbesher asked that the court compel the state to disclose and provide discovery listed on nine pages, including cell phone records of seven people, including the deceased, and five people interviewed by law enforcement in connection with the burglary of Smith’s home, from June 1, 2012 to present.

Meshbesher asked that the state disclose to the defense all medical, mental health and/or chemical dependency treatment records related to Brady and Kifer from any treatment and/or counseling facility for dates preceding Nov. 22, 2012, the day of the shootings.

Meshbesher said the central issue was about Brady and Kifer and the actions taken by Smith. “We know, I think, that both Nick Brady and Haile Kifer abused illicit drugs and also that their peers did, too,” he said.

Bureau of Criminal Apprehension criminal history printouts were requested, as well as Morrison County Sheriff’s Office records, Little Falls Police Department records and more, involving Brady, Kifer, and three others interviewed by investigators.

Audio recordings of statements made by 11 witnesses (and others), including Smith, to law enforcement were also on the list.

Meshbesher said this evidence was necessary, because the case was not about what happened “over the course of a couple of minutes, but over the course of time” that may explain why the shootings occurred and what led up to it.

In the audio recording Smith had of the day of the shooting, before the shots were heard, glass breaking and shattering could be heard, Meshbesher said.

The two decedents did that, he said, before entering Smith’s home uninvited. “Not just uninvited, they used something to shatter the glass,” he said.

Hearing the audio statement, hearing whether someone’s voice was shaking or not, and whether that indicated fear, would be up to a jury to decide, he said, and that the defense was entitled to the recordings.

Wartner noted the latest motion from the defense for discovery had just been received  by their office the day prior, and that the defense had been given more than 400 items from law enforcement.

The prosecution will continue to make discovery, he said, which will be made available as it becomes available.

Some of the requests, such as school records, medical records and mental health records were not in the state’s possession, he said.

“The state is not Mr. Meshbesher’s investigator,” said Wartner. “Mr. Meshbesher has the power to investigate.”

Wartner said Meshbesher could bring the school in on subpoena.

“These are items we don’t have or have access to,” said Wartner. “I don’t think the court should order the prosecution to do that.”

He said it was not up to the prosecution to do particular tests on behalf of the defense.

“We’re meeting our obligation in a timely manner,” said Wartner.