Judge rules on motions in Smith case: No gag order, state to provide evidence requested by defense

By Terry Lehrke, News Editor

Morrison County District Judge Douglas Anderson issued his judgment in requests from both the defense and prosecution in the Byron Smith murder case.

Smith is the Little Falls man charged with two second degree counts of murder in the shooting deaths of Haile Kifer and Nick Brady, during an alleged burglary at his home in November 2012.

Prosecutors asked for a protective order restricting disclosure to the public of discovery made in the case and the defense asked the judge to issue a gag order against the prosecution.

Anderson ordered that data disclosed to the defense in the course of discovery, or by court order, be used only by the parties, their legal counsel, employees of the legal counsel or any retained experts.

The defense’s motion for a restrictive gag order against the prosecution was denied.

“A fair and impartial trial is essential to both the state and the defense as well as to the court,” Anderson’s memorandum said.

“Therefore, the court will expect both sides, represented by experienced attorneys, to adhere to the Minnesota Rules of Professional Conduct, particularly Rule 3.6(a) which restricts both sides from making extrajudicial statements that the lawyer ‘knows or reasonably should know … will have a substantial likelihood of materially prejudicing a jury trial in a pending criminal matter.’”

Adherence to Rule 3.6(a), said Anderson’s memorandum, as opposed to a blanket gag order, will “strike a balance between protecting the right to a fair trial and safeguarding the right of free expression.”

Anderson ruled in favor of the defense’s motion to require the prosecution to make available copies of cell phone records, evidence obtained during search warrants, all Bureau of Criminal Apprehension (BCA) forensic analyses pertaining to the case, photos taken during the search of Smith’s home, 911 calls made from Smith’s home, shotgun photographs, surveillance video, audio recordings of statements made by 11 individuals, and any juvenile court records concerning Brady and Kifer.

In addition, Anderson ordered the prosecution provide documentation concerning the Oct. 27, 2012 investigation in the burglary of Smith’s home.

Smith’s defense attorney, Steven Meshbesher had also requested medical, mental health, treatment and school records on Brady and Kifer.

Prosecutors Washington County Attorney Pete Orput, acting a special assistant to the Morrison County Attorney’s office, and Brent Wartner, also with Orput’s office, said the state had no such records on Brady and Kifer.

Anderson’s memorandum indicated there was no reason to doubt this and did not order the state to produce the information.

He did order all discovery in the state’s possession be produced for the defense, “Reserving any decision regarding relevance and admissibility to a later date,” Anderson’s memorandum said.

In January, the court granted the defense an extension of time before an omnibus hearing as forensic analyses will not be completed until mid-April.

Smith’s omnibus hearing has been set for May 6.