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Byron David Smith

Byron David Smith

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Accused Little Falls killer makes bail; tough case ahead

  • Article by: RICHARD MERYHEW
  • Star Tribune
  • December 18, 2012 - 11:07 PM

He's confessed to firing multiple shots at two teenage intruders. He's got videotape of them outside his house before they broke in and an audio recording of their gruesome killings as they walked the stairs to his basement on Thanksgiving Day.

And according to prosecutors, he made chilling comments to the teens as they lay dying: "You're dead" to Nick Brady, 17, and "bitch" to Brady's cousin Haile Kifer, 18.

With so much evidence working against Little Falls homeowner Byron David Smith, who posted bond and got out of the Morrison County jail Tuesday, how does an attorney go about defending him on second-degree murder charges?

"I might withdraw," Minneapolis defense attorney Joe Friedberg quipped.

Attorney Steve Meshbesher, who represents the 64-year-old retired a U.S. State Department employee, declined Tuesday to discuss his legal strategy or make his client available to talk about what happened.

"I'm not going to turn this into a zoo," he said. "There's been too much media attention already. This is about me defending a person who is very defendable, and I have every intention of doing that in the courtroom."

Meshbesher said he will spend the coming weeks scrutinizing everything prosecutors have gathered in building their case against Smith, who once set up security systems at U.S. embassies across the world.

In the meantime, colleagues said Tuesday that Meshbesher faces a formidable challenge in defending his client, who lived alone in a home on the edge of Little Falls and said he had been the victim of multiple break-ins.

Twin Cities defense attorney Earl Gray said it will be difficult to argue self-defense in the case: The bodies were left in the basement for a day, multiple shots were fired at each victim and because so much time passed between the killings -- about 10 minutes, according to prosecutors who listened to the audio recording.

"If he went over after they were lying there after they were already shot and he shoots them again, I don't know of any self-defense statute" that would apply, Gray said. "The idea that self-defense allows you to execute somebody, that's just not the law.

"He may well have been excited, he may well have been scared. Maybe he thought another one was coming down the steps. Who knows? But you've got to deal with that and have to have some kind of theory to explain to the jury 'Why didn't you stop?' "

Paul Applebaum, a St. Paul defense lawyer, said the confession, on top of the audio recording and other evidence, also could make it difficult to argue self-defense.

"He admitted he shot both kids," he said. "And a lot of judges may not permit him to raise that defense if they don't think the evidence warrants it."

Gray said Meshbesher will probably have a psychiatrist examine and evaluate Smith "to see if he's understanding what's going on now and to see what he understood at the time he was killing these people."

If Smith is found to be mentally unstable, his attorney could argue that "he didn't understand the nature of his act," Gray said.

But establishing an insanity defense in Minnesota, Applebaum said, is "virtually impossible."

He said Meshbesher could play up Smith's record as a law-abiding, longtime government employee in hopes of winning sympathy from jurors and getting him off on a lesser charge.

"It's not like he was out on the street looking for trouble," Applebaum said. "He was in his basement. And I think plenty of people out there feel all bets are off if you break into their home."

Applebaum said he also would try to introduce expert testimony on how a rush of adrenaline can impair judgment.

"You need to find a way to somehow explain that he was filled with adrenaline and fear and wasn't filled with intent to kill," he said. "If you package it correctly, you might be able to sell it to a judge to let an expert testify how the mind goes on automatic pilot when you are under threat. You oftentimes hear where people are in intense combat situations where they don't often remember what happened.

"It's not an open-and-shut case, especially in a rural community that doesn't like law enforcement all that much or government all that much," he added. "You get guys up there who think, 'My home is my castle.' "

Richard Meryhew • 612-673-4425

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