Suspect in Hwy. 169 shooting seeks murder charge dismissal, citing prosecutorial misconduct

Attorneys for the man charged with fatally shooting another driver on Hwy. 169 last year are asking a judge to dismiss the case against him because of alleged prosecutorial misconduct and improper behavior by a juror during grand jury proceedings.

Attorneys Emmett Donnelly and Kellen Dotson argued in a motion filed Monday that prosecutors Amy Sweasy and Dan Allard from the Hennepin County Attorney's Office allowed witnesses to lie during testimony and failed to present evidence that was favorable to their client. They also argued that prosecutors failed to thoroughly investigate the influence media coverage had on jurors and one juror's use of a cellphone amid the proceedings.

Jamal L. Smith, 34, of Chicago, was indicted in October on charges of first-degree murder with intent, second-degree murder drive-by shooting and ineligible possession of ammunition or firearm. He is accused of shooting 56-year-old Jay Boughton of Crystal once in the head as the two drove on the freeway in Plymouth last July 6.

"The grand jury proceedings in this case were wrought with deficiencies that undermine the integrity of the grand jury proceeding and the legal process," the defense motion said.

In a statement, the Hennepin County Attorney's Office said it will file a written response after it reviews the motions.

"At this time, however, we can say categorically that the motions are entirely without merit, both factually and legally," the office said.

The charges against Smith allege that he was driving an SUV and pulled up next to Boughton's car on Hwy. 169 in Plymouth. Boughton's 15-year-old son was riding in his father's car and told police his father "gestured" at the SUV's driver and within seconds his father's window was shattered by a bullet and his father slumped over.

Police said Smith was in the left-hand lane and turned his right-turn signal on as if to merge into the right-hand lane where Boughton was driving.

The defense filings raised questions about the backseat passenger in Smith's car, Brandon Smothers, noting the day after the killing that Smothers was recorded in a video handling a gun similar to a weapon used in the shooting. Smith's attorneys noted that Smothers testified he was sleeping at the time of the shooting and did not see the shooter, but thought it was Smith.

Smith's attorneys said Smith would have had to make a difficult shot across a different man in his front passenger seat and through an open window in order to strike Boughton.

"Without Mr. Smothers' testimony, the State would have asked the grand jurors to believe that Mr. Smith made an incredible — nearly impossible — shot," the defense wrote. "... Annie Oakley herself would likely be impressed by this marvel of a trick shot."

According to the defense motion: Under questioning by prosecutors, Smothers testified that he never held the suspect gun and didn't know what happened to it, even though video on Smothers' phone showed him handling a similar gun the day after Boughton was shot.

"The state took no action to correct Mr. Smother's lie before the grand jury," the defense wrote. "... Mr. Smothers' testimony was the only direct evidence presented that Mr. Smith shot Mr. Boughton."

The video of Smothers "dancing" at a party while holding a gun was evidence favorable to Smith, but prosecutors failed to present it to the grand jury, the defense said.

"The jury would hardly believe any of Mr. Smothers' testimony if they were subsequently shown a video of Mr. Smothers cavorting with the alleged murder gun the day after the shooting," the motion argued. "Without Mr. Smothers' testimony, the most that the State can prove is that Mr. Smith was in the suburban with two other men at the time Mr. Boughton was killed."

The impact of widespread media coverage of the case was not properly vetted by prosecutor Amy Sweasy, the defense also argued.

"Ms. Sweasy did not ask the jurors any questions about the extent of their knowledge of the case, any opinions about the case or how their knowledge would impact their judgement," according to the motion.

Juror 4 asked one witness a pointed question about the case that appeared to be gleaned from news coverage, not testimony, the defense wrote, noting that it introduced "outside information" to the proceeding. The same juror also was confronted about using a cellphone during the proceeding and told prosecutors they were using email but did not send any communication or make any recordings.

"Ms. Sweasy did not investigate further...," the defense wrote.

Smith's attorneys filed a second motion Monday asking that the county jury office provide demographic data for jurors who served on the grand jury and information about how they were selected. Smith's defense said they would seek a dismissal if Black residents were underrepresented. Smith is Black; Boughton was white.

"The method of drawing residents as potential jurors needs to be transparent in order to determine whether the grand jury in Mr. Smith's case was chosen from a representative pool and whether certain groups are being systematically excluded from jury service," said the filing, which alleged that from June 2020 onward, jury panels "appeared to skew white, suburban and affluent."