Judge Anderson to consider multiple motions before Smith murder trial begins

Trial may take longer than first anticipated; defense estimates two – three weeks after jury selection

By Terry Lehrke, News Editor 

At a pre-trial hearing Tuesday, Byron Smith’s defense attorney Steven Meshbesher told the court he would need three to five days to present his defense.

That would follow the five days Prosecutor Washington County Attorney Peter Orput said he would need to present his case. The prosecution’s witness list alone contains 60 names.

Meshbesher told Judge Douglas Anderson that including final arguments, he felt the case could last up to three weeks, not including jury selection. Anderson asked for estimates so potential jurors would have an idea as to the length of their service.

Smith, now 65, was initially charged with second-degree murder, in the shooting deaths of Haile Kifer, 18, and Nicholas Brady, 17.

Smith shot the two multiple times after he said they broke into his Little Falls home Thanksgiving Day, Nov. 22, 2012.

A grand jury indicted Smith on first-degree premeditated murder charges in April 2013.

Meshbesher noted he had received multiple motions from the prosecution at the end of the day Monday, and had had-delivered prepared responses.

He asked the court to dismiss the case, saying the defense had not received items of discovery requested since January 2013, including some of the photos of items taken from Smith’s home, copies of the chain of custody, copies of finger, palm and thumbprints of the deceased, as well as shoes worn by Brady for comparison with footprints found at an October 2012 burglary at Smith’s home. Meshbesher indicated he had an expert in Florida to do the comparison.

Prosecutor Brent Wartner indicated the state had provided opportunity for the defense to review the shoes, but Meshbesher wanted to take the shoes for the comparison.

Wartner said the state had made every effort to provide evidence or make it available for review, saying there was a standing offer for the defense to come to wherever the evidence is to look at it. The prosecution said 776 evidence items had been released to the defense.

Meshbesher also had an issue with more than six hours of audio tape made the day of the shootings by Smith, that a Bureau of Criminal Apprehension agent had made transcripts for and provided markers for the jury to hear.

Anderson asked for the audio to listen to it in its entirety before deciding what would or would not be presented to jurors.

Orput objected to the calling of a psychologist witness for the defense.

Meshbesher said that witness would offer testimony on the components of human fear and how fear can cause humans to react.

Anderson will make decisions on these motions and others before the trial proceeds.

The jury will be selected the week of April 14. Anderson indicated the entire jury pool would receive questionnaires to fill out the first day, but just 20 would be questioned then. After that, Anderson said 30 potential jurors would be questioned each of the remaining four days until the final jury had been selected.

The trial has been set to begin the week of April 21.

Anderson asked the defense and prosecution to informally discuss ways to shorten the trial.

Meshbesher is being assisted by Attorney Adam Johnson.

Orput and Wartner were named as special Morrison County assistant attorneys.