Trenton juror questioned by judge over ‘conspiracy’ in former Newark gang member murder trial
It was the word juror Mark Nalbone heard come out of the mouth of defense attorney Edward Heyburn on Tuesday as he walked through the the halls outside of Judge Andrew Smithson’s courtroom, where former Newark gang member Shaheed Brown is on trial for the July 2014 murder of Enrico Smalley Jr. outside crime-ridden La Guira Bar.
“I heard one word – it was very loud and distinct – and the word was ‘conspiracy,’” Nalbone said, according to a recording obtained by The Trentonian. “All the other words went back to normal mumbling where I could not really make it out. Not that I wanted to. I try to stay as far away as I can.”
There has been no evidence presented of a conspiracy in Brown’s murder trial. However, it is clear from a recording obtained by The Trentonian that the juror believed Heyburn plotted his own conspiracy to expose him to the word.
“Your perception was that it was intentional?” Heyburn asked the juror.
“To be honest, that’s what I thought,” Nalbone said. “I thought you took a glimpse and saw me coming and then, like I said, I heard this mumbling, and I didn’t hear anything so I made sure I walked away. But as I was getting closer, the one word that was just a lot louder than the normal conversation was the word ‘conspiracy’ and then you proceeded to talk at a lower volume.”
Judge Smithson expelled members of the public from his courtroom over the objections of a Trentonian reporter in order to have a private exchange with Nalbone and opposing attorneys in the murder trial. He also told attorneys not to speak with news reporters about the issue.
Sheriff’s officers were stationed outside of Judge Smithson’s courtroom to enforce his order barring anyone from entering while court officials discussed the issue for about 20 minutes.
“This is to be treated as a conference in chambers,” the judge said, “so I don’t have anyone in the courtroom. I don’t want anybody at the door because it has an intimidating effect. The juror will be here, and I want him to feel as comfortable as possible as we discuss whatever he perceived.”
The judge needed to know whether Nalbone hearing part of the conversation Heyburn had with his client’s family undermined his ability to serve as a juror and whether he shared what he heard with panelists.
Nalbone admitted he had told the other 11 jurors about the incident to gauge their opinion about whether he should inform the court about the conversation he overheard while walking out of the courthouse Tuesday, following the conclusion of deliberations.
After extensively questioning Nalbone about the incident and a lengthy powwow with the attorneys, the judge decided the juror could continue deliberating and a mistrial was unnecessary.
Although Nalbone had reported the incident to jurors, they told the judge it would not infect their deliberations.
“That’s one of the loudest responses I’ve heard from this group,” the judge said of the “no” that reverberated through his courtroom. “Lots of talk goes on in hallways. There’s no question in my mind that it does not affect and should not affect this case in any way.”
The unintentional eavesdropping occurred Tuesday as jurors trickled out of the courthouse to catch the bus following the end of their deliberations. (They had still not arrived at a verdict at the end of deliberations Wednesday.)
Heyburn was huddled with his client’s family members to discuss his client’s case. He said he had been given the all-clear by a Mercer County sheriff’s officer that all the jurors had left.
But Nalbone was still around.
As he walked toward where Heyburn was standing with the group, he heard Heyburn mumbling. He said he believed the defense attorney “saw me out of the corner of his eye” and intentionally began speaking louder.
“I heard that one word very loud,” Nalbone said, estimating he was around 10 steps away from the defense attorney. “I thought it was odd that was the one word I heard very loud.”
He reported the incident to court officials Wednesday morning, following the jury’s early-morning break for drinks.
“I have to at least get it off my chest,” he told the judge. “Whether it has any kind of meaning or not.”
Judge Smithson said he was pleased the juror came forward with the information rather than playing “mental ping pong” over it.
For the record, Heyburn denied he intentionally said the word louder. He said his back was turned to the juror while he was having a conversation with his client’s family.
“They were asking me questions about – speculative – what the prosecutor could have charged my client with as opposed to what they did charge him,” Heyburn told the judge. “They were asking me could they have charged him with conspiracy. As we were talking about ‘conspiracy,’ that juror walked by. One of the family members alerted me. I stopped and said, ‘Wait,’ and then we waited till he got on elevator to finish our conversation.”
Heyburn said he didn’t think Nalbone heard anything.
“Apparently he did and was thinking about it last night and then brought it to Officer Hendricks’ attention,” Judge Smithson said. “It doesn’t make any sense to him in any which way.”
Nalbone was brought into the courtroom and questioned but the judge decided there was no danger in keeping him on board.
“They were talking about a lot of things,” the judge told Nalbone. “The word ‘conspiracy’ was mentioned, but not in connection with anything in particular to this case. Really, that’s the answer to it.
“That’s great,” Nalbone said.
“It doesn’t have any effect and it shouldn’t come into your thinking in any way,” the judge said.
Then Smithson, a domineering retired judge who has pretty much been Heyburn’s executioner throughout the trial, stood up for the embattled defense attorney.
“I’m satisfied in talking to Mr. Heyburn and Mr. [Brian] McCauley that it was not done in some way to place something in your head or mind or interrupt or add something to that which has occurred here,” Smithson said. “I don’t find that Mr. Heyburn attempted to do something that was uncalled for, unprofessional or unethical. If I did it would be a very, very different matter.”