Judge slaps gag order on lawyers in Enrico Smalley murder case after surveillance video given to media

Fearful that pretrial publicity could impede the ability of the state to put on its case against a city man accused in the shooting death of 20-year-old Enrico Smalley Jr., a Superior Court judge sealed the court file and imposed a gag order that prevents attorneys from discussing the case outside of court.

The ruling from Judge Robert Billmeier comes days after The Trentonian published a story based off surveillance footage it obtained from attorney Edward Heyburn, who is defending suspect Shaheed Brown. Brown, 30, was indicted in November on charges of murder and weapons offense in connection with Smalley’s death.

Billmeier ordered attorneys to refrain from discussing the case with the media, saying he is concerned that now that the video is public it could influence witness testimony. A state prosecutor said at a Wednesday hearing the disclosure of the video has already had a chilling effect on a potential witness. Reciting a number of court cases while issuing his ruling from the bench, Billmeier said he was forced to act to ensure the integrity of a potential trial.

Going forward, he said, the courtroom “is the place to settle the issue.”

Heyburn, who emerged from court with his fingers clamped over his lips, contends he didn’t violate any rules of professional conduct by releasing the video to The Trentonian because it was done to counter “adverse publicity” his client received after he was indicted for the murder.

On top of that, Heyburn says the footage recently turned over by prosecutors through discovery appears to show another man, known only as “King,” reaching for something tucked into the left side of his waistband moments before Smalley was shot in the head outside of the La Guira Bar in the early-morning hours of July 12. Heyburn says police made no attempt to track down or interview the man, who he claims is the real shooter.

A hearing was held a day after Assistant Prosecutor Brian McCauley filed a motion asking Billmeier to consider the gag order. At the hearing, McCauley accused Heyburn of “doctoring” the video for his client’s benefit, marking the latest round of sparring between the attorneys who have accused each other of violating professional ethics. He didn’t clarify how he believed Heyburn had altered the video.

Heyburn renewed an accusation that McCauley made unsupported claims at his client’s bail hearing that he had shot an unnamed city resident in the face during a carjacking. Brown was never indicted for that shooting because the victim didn’t want to pursue charges, McCauley said.

McCauley said Heyburn violated a rule of professional conduct by turning over the video to The Trentonian. After it was posted on the newspaper’s website and circulated on social media, McCauley said he received a phone call from an attorney representing a witness in the case who is unwilling to cooperate with any future investigation unless there is a court order preventing future disclosures.

McCauley said he is worried evidence could continue to leak out to the media, which could have a “deleterious” effect on the case before it heads to trial.

“I just want to stop the steady bleeding,” of information, McCauley said.

A trial date hasn’t been set, with the sides expected to reconvene Jan. 14 for a status conference.

While weighing issues about the flow of public information and the defendant’s right to a fair trial, Billmeier said attorneys must now consult the court before making any future disclosures to the press about the case. He made no finding about whether Heyburn had violated any rules of professional conduct.

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