Byron Smith should be convicted of premeditated murder

April 30, 2014

Cross posted from Frederick Leatherman Law Blog

BY: Crane-Station and Frederick Leatherman

Tuesday, April 30, 2014

Good morning:

Closing arguments today in Byron Smith murder trial.

Police found a cell phone jammer on the kitchen table in Byron Smith’s house. Crane and I wondered what it was and why it was there. We looked it up and we believe its presence in his house constitutes powerful evidence of premeditation.
Its presence was unusual and unlawful.

Federal law prohibits the sale and/or possession of cell phone jammers. The only exception is federal law enforcement officials, which he isn’t. The reason for banning them is to prevent people from interfering with or blocking 911 communications.

Byron Smith violated federal law when he acquired and possessed his jammer. Since businesses cannot sell them, people have to jump through some hoops to obtain one. Why would he have gone to all that trouble to acquire a jammer that is illegal to posess unless he had murder in mind.

Premeditation to kill began with his effort to acquire a jammer.

A jammer is certainly an odd thing for a homeowner to acquire because they typically want to call 911, if an emergency happens. Since he obviously did not want to contact 911, we can infer that he did not want the kids to call each other or 911. He did not want anyone interfering with or stopping his little party in the basement and that means he had it planned before they arrived.

Back in the day, I represented many kids who were charged with burglary and I’ve also been a victim of residential burglary. This one appears typical.

Enter the home when the owners are gone, or wait until they leave. One or more go inside while one or more remain outside to warn the kids inside, if someone comes home.

Run like hell if they do.

Kids generally commit residential burglaries for the adrenaline rush and for instant gratification. In addition to money and loose change, they look for booze, pot, pills and porn that they can share with their friends. Electronics are also popular.

Since kids are not sophisticated, they may steal a firearm or several of them, if they find them. They may wind up throwing them away once they realize their friends can’t afford them and no one will buy them. This may be why someone threw Smith’s shotgun in a swamp, assuming that happened.

Kids also raid the refrigerator and generally leave a mess, including some fingerprints, and they almost always confess when the cops arrest them.

They usually only steal what they can conceal and carry away in a backpack.

Their crimes are annoying but seldom cause serious harm. I consider them part of the price of living in an urban environment or residential neighborhood and never got very upset. Residential burglaries are ubiquitous to urban living and one of the reasons we have insurance.

Bored neighborhood kids with sticky fingers can be easily controlled by remembering to lock your doors and windows before you leave your house and getting a dog.

Any professional burglar will tell you that burglar alarms are useless and you would be better off spending your money on a dog. They won’t go near a house with a barking dog.

Along with hating minorities, smart people, liberals, teachers and just about everybody else and everything else you can think of the right wing hate machine hates kids who steal stuff out of homes.

Applying the one-size-fits-all solution, which is the limit to the nuance they can muster to solve any problem, they declare a war on kids and claim we should kill them.

I suspect that more than a few judges, prosecutors, defense lawyers, doctors, public officials and police entered residences without permission and stole stuff when they were kids. I’ll bet a lot of members of the right wing hate machine did too.

Executing kids who entered a house without permission is never justified unless the shooter believed he was about to be killed or seriously injured or he believed he had to kill the kid to prevent the kid from committing a felony in the house.

Don’t stop reading there because the most important part of the test is whether a reasonable person would have done the same thing.

Nick and Hailey were kids.

They were unarmed and unable to move or speak, much less harm him, when he finished them off with shots to the head at close range.

Only one thing prevented him from calling 911 for police and medical assistance.

He did not want to because he considered them vermin and he wanted to continue to record and savor his murderous fantasy and provide a running commentary of his acts for future reference.

A lot of words come to mind to describe what he did.

Reasonable is not one of them.

  • Byron Smith and the jury began hearing portions of recornings and here are some additions, captured on the same take.

    Fred to return soon.

    We extend out deepest sadness regarding the devstation. in Arkasas, Kansas, Missiouri, Kentuky, Tennessee, Oklohoma

    Wikipedia Cell Phone Jammers.

    ‘Internet Explorer’ Bug Affects EVERY Version Ever Released
    The Huffington Post UK | Posted: 28/04/2014 10:41 BST | Updated: 28/04/2014 12:59 BST

    ‘Internet Explorer’ Bug Affects EVERY Version Ever Released
    The Huffington Post UK | Posted: 28/04/2014 10:41 BST | Updated: 28/04/2014 12:59 BST

    Closing arguments today in the Byron Smith trial

    April 29, 2014

    On Monday, the defense rested in the Byron Smith murder trial. Jury instructions included first and second degree murder for each of the two victims, 18-year-old Haile Kifer and 17-year-old Nick Brady. Smith shot and killed the teens after a home break-in. The jury will deliberate on whether he went too far in his actions.

    Closing arguments are set to begin at 9 AM.

    Here is the defense lawyer, commenting to the press:

    posted by Crane-Station

    Donald Sterling is a racist and unfit to own LA Clippers

    April 28, 2014

    Monday, April 28, 2014

    Good afternoon:

    Donald Sterling is a racist and unfit to own the LA Clippers. He should be banned from owning any sports franchise.

    If you doubt that he is a racist, listen to what he has to say during this telephone conversation that he has with his girlfriend.

    I would also ban him from attending any games.

    Byron Smith will not testify: Closing arguments today

    April 28, 2014

    Monday, April 28, 2014

    Good morning:

    The Byron Smith trial resumes this morning. He has decided not to testify. Closing arguments will start soon.

    Smith’s soliloquy during the lengthy audio recording of the shootings and their aftermath does not serve him well because he does not appear to be in any distress. Instead, he seems to be narrating an execution with about as much passion as a medical examiner describing an autopsy that he is conducting.

    The legal test for self-defense is whether he believed that he was in imminent danger of being killed or suffering great bodily harm and whether his belief was reasonable. That is, whether a reasonable person in the same situation would have believed that he had to use deadly force to prevent being killed or suffering great bodily harm.

    Since the incident happened inside his home, the law also permitted him to use deadly force, if reasonably necessary to prevent the intruders from committing a felony in his home. Again, the word reasonable means that his decision to use deadly force must be judged by what a reasonable person would have done in the same situation.

    Would a reasonable person set an ambush and record it starring himself as the executioner-narrator?

    Even if jurors conclude that his initial disabling shots were reasonably necessary, will they conclude that the kill shots to the head from close range were reasonably necessary to prevent them from killing him or seriously injuring him or committing a felony in his home?

    He knew they were not armed and he never called 911.

    There are two counts and the jury will be instructed to consider each separately. Therefore, it is possible that the jury might find him not guilty of murdering the boy, but guilty of murdering the girl.

    This is our 1,000th post.

    If you appreciate what we do and have not already made a donation, please do so today.

    Thank you,


    Mayflower-Vilonia, AR tornado, aerial, radar (VIDEOS)

    April 27, 2014

    uploaded by Cotton Rohrscheib
    Published on Apr 27, 2014
    We shot this video shortly before God spared our lives. Others around us were lost. Thoughts & Prayers for those affected…

    Arkansas Tornado Damage Aerial Video 4-27-2014

    Mayflower/Vilonia, AR Tornado WSR88-D Radar Image

    University of Wisconsin has posted an infrared image, that can be enlarged:

    Jesse ‏@WhistlePig11 16h
    Pray for Mayflower, guys. It’s needed right now. #arwx
    Reply Retweet Favorite

    Heartbleed, Running the Code – Computerphile (VIDEO)

    April 27, 2014

    Published on Apr 18, 2014
    We look at and run the code that exploits the Heartbleed bug. Dr. Steven Bagley takes us through the code and shows us how it works.

    Relevant RFC Document

    posted by Crane-Station

    Since I am not very tech-savvy, I will be reviewing this video a lot myself. I thought to share it for others, who are curious about how Heartbleed works.

    Sharlene Simon is a cruel and selfish mess

    April 27, 2014

    Sunday, April 27, 2014

    Good afternoon:

    While driving her SUV too fast on a two-lane country road around 1:30 am on October 28, 2012 Sharlene Simon slammed into and killed 17-year-old Brandon Majewski. He and two of his friends were riding their bicycles to a store to get some hotdogs when she plowed into them from behind. Both of his friends survived. Richard McLean, 16, sustained a broken pelvis while Jake Roberts, 16, suffered only a few scratches.

    She admitted to driving 90 km/h in an 80 km/h zone.

    Brandon’s parents sued Simon and her husband who owns the car for the wrongful death of their son. Simon filed a counterclaim against Brandon’s estate and the other two boys for $1.38 million for causing her severe emotional distress because they were “incompetent bicyclists.”

    CTV News reports:

    According to her lawyer, Michael Ellis, Simon has since been diagnosed with post-traumatic stress disorder and is no longer able to work. The statement of claim says that she suffers from headaches, depression, irritability, anxiety and severe emotional discomfort and trauma.

    “She relives the terror of this incident every day. Ms. Simon has been unable to return to work since the collision. She has been diagnosed with post-traumatic stress disorder. She is also a victim,” Ellis said in a statement.

    The Toronto Sun reported Brandon’s mother’s response:

    “I’m devastated, I’m in shock,” said Brandon’s mother, Venetta Mlynczyk, a dental assistant who is drowning in sorrow. “She killed my child and now she wants to profit from it? She says she’s in pain? Tell her to look inside my head and she will see pain, she will see panic, she will see nightmares.”

    Brandon’s older brother committed suicide after Brandon was killed.

    This is our 997th post.

    If you appreciate what we do and have not already made a donation this month, please take a moment to do so.



    The Feynman Series – Beauty and Think Like a Martian

    April 26, 2014

    posted by Crane-Station

    The Feynman Series is a collection of videos narrated by physicist Richard Feynman and featuring footage from NASA, BBC Planet Earth, Microcosmos, Chronos, and others. The creator is Reid Gower, who also made The Sagan Series.

    The Feynman Series: Beauty

    MUSIC : Goldmund – Threnody
    NARRATION: Richard Feynman – The Pleasure of Finding Things Out
    BBC Planet Earth
    BBC Life
    BBC The Grand Rift
    BBC The Secret Life Of Chaos
    BBC The South Pacific

    The Feynman Series- Think Like a Martian

    Music: Philip Glass – Invitation
    Narration: Richard Feynman

    Think Like a Martian is Reid Gower’s most recent addition to The Feynman Series. To view other segments in the series, and also, to see The Sagan Series, please visit Reid Gower’s YouTube channel.

    The Deadly Cost of Fashion-NYT Op-Doc: Rana Plaza Collapse (VIDEO)

    April 25, 2014

    Read the New York Times article here.

    A photojournalist who covered last year’s deadly collapse of the Rana Plaza building in Bangladesh draws connections to New York from clothing labels he found in the rubble. by Nathan Fitch and Ismail Ferdous

    On April 24, 2013, Rana Plaza in Bangladesh, in the garment district collapsed, killing more than 1100 and injuring 2500.

    posted by Crane-Station

    Byron Smith Murder Trial Discussion 4/25/2014

    April 25, 2014

    Friday, April 25, 2014

    Good morning:

    The prosecution rested its case yesterday in the Byron Smith murder trial. He is accused of ambushing two teenagers in his basement around noon and shooting them to death on Thanksgiving Day, 2012.

    He claims he shot them in self-defense and to prevent them from committing a felony in his residence. Minnesota law permits a person to use deadly force under those circumstances if reasonably necessary to prevent them from killing him or inflicting grievous bodily harm or committing some other felony in his residence.

    The key word is reasonable. Whenever you see that word in a legal setting, you should realize that it is referring to an objective test. That is, whether the totality of the objective facts and circumstances, as opposed to his subjective perception of them, were such that a reasonable person would have decided that it was necessary to use deadly force to prevent being killed, or suffering grievous bodily harm (i.e., serious injury), or to prevent the commission of another felony in his residence.

    He must also have actually believed that he was in danger of being killed or seriously injured by the intruders or that they were going to commit a felony in his residence unless he used deadly force to prevent it.

    A residential burglary cannot be the felony because it had already been committed. That is, the elements of a residential burglary are: (1) entry into a residence without permission (2) with intent to commit a crime inside, regardless whether that crime is committed. Under these circumstances, the residential burglary was completed when the kids entered Smith’s residence, if they intended to steal something.

    That is the test that the jury will be instructed to apply.

    If you are not familiar with this case, you can get up to date by reading my article yesterday titled, The Murder Trial of Byron Smith.

    Here is a narrative description of portions of the defendant’s audio recording of the shootings. Yes, indeed. He did record what happened in the basement and even provided a running commentary of what he was doing.

    The narrative description was provided by Pam Louwagie, a reporter for the Star Tribune. She tweeted as she listened to the recording being played in the courtroom on Wednesday.

    Pam Louwagie ‏@pamlouwagie Apr 23
    Audio of time before, during and after break-in played for jury in Byron Smith trial.

    Pam Louwagie ‏@pamlouwagie Apr 23
    “I realize I don’t have an appointment but I would like to see one of the lawyers here,” he says calmly before break-ins, talking to self.

    Pam Louwagie ‏@pamlouwagie Apr 23
    Haile’s mom puts face in hands during re-playing of audio of shootings.

    Pam Louwagie ‏@pamlouwagie Apr 23
    After shootings, Smith talks to himself, according to compressed audio played for jury.

    Pam Louwagie ‏@pamlouwagie Apr 23
    “I’m safe now,” he says. “Cute. I’m sure she thought she was a real pro.”

    Pam Louwagie ‏@pamlouwagie Apr 23
    “I feel a little bit safer. Not totally safe, I’m still shaking a bit,” he says after the shootings.

    Pam Louwagie ‏@pamlouwagie Apr 23
    “I left my house at 11:30. They were both dead by 1,” Smith says on audio recording after the shootings.

    Pam Louwagie ‏@pamlouwagie Apr 23
    “I refuse to live in fear,” Smith is heard saying. Then later, “I felt like I was cleaning up a mess.”

    Pam Louwagie ‏@pamlouwagie Apr 23
    Many of his utterances are in a whispery voice: “Not even like diarrhea, the worst possible mess and I was stuck in it.”

    Pam Louwagie ‏@pamlouwagie Apr 23
    “I was doing my civic duty,” he says later.

    Pam Louwagie ‏@pamlouwagie Apr 23
    “I don’t see them as human. I see them as vermin,” Smith is heard saying.

    Pam Louwagie ‏@pamlouwagie Apr 23
    “fun, cool, exciting and highly profitable until somebody kills you,” he is heard saying.

    Pam Louwagie ‏@pamlouwagie Apr 23
    Later, he says: “I’m sorry. So much regret. I try to be a good person. I try to do what I should.”

    Pam Louwagie ‏@pamlouwagie Apr 23
    And even later: “I’m a sucker. They think I’m there to take advantage of. Is that the reward for being a good person?”

    Pam Louwagie ‏@pamlouwagie Apr 23
    Jury also saw Smith’s surveillance video of him moving his truck at 11:25 a.m., walking back to his house at 11:45.

    Pam Louwagie ‏@pamlouwagie Apr 23
    Brady approaches the house at 12:33 p.m., according to surveillance video shown to jury.

    Pam Louwagie ‏@pamlouwagie Apr 23
    Brady is wearing camouflage, has a hood and is seen looking into windows, trying doors.

    Pam Louwagie ‏@pamlouwagie Apr 23
    Brady spotted one of the surveillance cameras — hidden in a wood pile — and moved it.

    If you were a juror, would you vote guilty or not guilty and why?

    Feel free to go off topic if you desire.

    I am not certain if the trial will continue today or resume Monday because judges often reserve Fridays to handle other business, including sentencings and hearings in other cases.

    We will be following Ms. Louwagie on twitter, which you can also do.

    Finally, if you appreciate what we do and have not already made a donation, please do so today.

    Thank you,


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