Defense attorney says his client ‘caught in crossfire’ between judge, newspaper’s feud

An attorney for a Trenton man on trial for murder said a judge has jeopardized his client’s right to a fair trial over a vendetta with a newspaper reporter.

Edward Heyburn

Edward Heyburn

Defense attorney Edward Heyburn said in court papers filed last week that his client, former Newark gang member Shaheed Brown, has found himself  “caught in the crossfire” of a public feud between Judge Andrew Smithson and The Trentonian, which was reignited last week when the judge closed the courtroom to discuss critical comments Heyburn made about the lead detective in the case.

Heyburn said his client’s Sixth Amendment rights were being infringed upon by the spat.

The Trentonian requested Heyburn’s motion last week but was told by court officials that Smithson had to approve its release before it could be made public.

Smithson OK’d the release Monday. In doing so, Smithson addressed for the first time the hostility with the newspaper and how it has not impacted his ability to ensure Brown gets a fair trial. He called Heyburn’s assertion to the contrary “misguided and really upsetting.”

“Nothing could be further from the truth and nothing could be more hurtful to me as a judge to hear something like that thrown at me,” Smithson said. “Court reporters are working for papers. Papers want to stay in existence they want to sell papers they want to make money for their shareholders and so forth. Court reporters … do what they have to do to get a paycheck. That’s how I see it.”

The controversy started last week, when Heyburn told The Trentonian that state police detective Joseph Itri should not be allowed to make “a racist argument” by testifying at the retrial that he believed Brown was armed with a handgun because he had sagging pants the night Enrico Smalley Jr. was fatally shot outside of a city bar in July 2014.

That led Smithson to hold a private hearing in which he excluded the public from the courtroom. Smithson also put in place a gag order preventing the attorney from discussing the murder case with the media and sealed transcripts of the private hearing.

Heyburn focused on whether the court should use a stenographer or CourtSmart, a recording system used by courts statewide, for the rest of Brown’s second trial.

Heyburn’s emergency motion asked Assignment Judge Mary Jacobson to rule on the matter, noting Smithson’s motivation for using a court reporter stemmed from his desire to make “it difficult for The Trentonian to obtain the court record.”

Smithson said he decided to use the recording system the night before Heyburn filed his motion.

The feud between Smithson and The Trentonian traces back to Brown’s first trial, which ended with a jury being unable to decide whether he gunned down Smalley.

The Trentonian reported extensively on the trial and wrote stories critical of Smithson after he shut out the public and press from his courtroom to hold a behind-close-doors meeting with a juror.

The juror said he overhead Brown’s attorney discussing a possible conspiracy with his client’s family.

The Trentonian was not allowed in the courtroom for the hearing but lawfully obtained a recording of the hearing and wrote a story about it, which included the juror’s name.

Smithson was furious when he found out the newspaper published the juror’s name, blasting a newspaper reporter in front of jurors at the conclusion of Brown’s first trial.

Smithson again addressed that episode Monday morning.

“They can print anything they want and we’ve had, too, with the juror’s name in the last trial,” he said. “That was shocking to me. It was like putting a bullseye on somebody’s back. It was one of the few times in my life that I was happy to see a mistrial because if it had been a finding of guilty that juror would have lived in fear for the rest of his life.”

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