TRENTON >> For the second time in as many weeks, a Mercer County jury was unable to decide a verdict in a high-profile murder trial, leaving a retired judge and the prosecutor who tried the case scratching their heads.
Defendent Shaheed Brown listens to trial testimony. (Gregg Slaboda - Trentonian)
The defense attorney, Edward Heyburn, said he was disappointed his client must remain behind bars until the retrial following what amounted to an "exhibition game."
Judge Andrew Smithson said Thursday it was "regrettable" that the jury was hung in the murder trial of former Newark gang member Shaheed Brown. Jurors were also hung in the recently concluded murder trial of Isiah Greene, who was tried down the hallway from Brown.
The retired judge had told jurors – perhaps improperly – during his charge prior to the start of their deliberations he had already come to a decision about whether Brown fatally shot Enrico Smalley Jr. outside of crime-ridden La Guira Bar in the early-morning hours of July 12, 2014.
“It’s a shame,” Smithson said. “It’s an easy case that did not have a lot of moving parts. I though you would have a verdict in hours. You have gone as far as you can. Don’t go drive yourself insane. I don’t take these things home with me. You made a decision, and we all have to live with it.”
Edward Heyburn
Brown will have to live with it, too, until at least April 2016 – a tentative date prosecutors have asked for in the second trial.
“Extremely disappointed,” said Heyburn, who put on a third-party guilt defense blaming another man, Alvie “King” Vereen, for Smalley’s murder. “I was hoping to have my client home by this week.”
Family members of Smalley, the victim, were heard outside the courtroom wailing. Smalley’s godmother, Michelle Jones, sat stone-faced in the halls.
“It’s not the best out of the day because we have to start all over,” she said. “But at the end, I rather have a hung jury rather than not guilty. We’ll do this again.”
Assistant Prosecutor Brian McCauley, flushed in the face and frustrated with the non-decision, could only shake his head. He didn’t know what jurors thought or didn’t think. especially when they refused to speak to a Trentonian reporter following their announcement.
“They didn’t see the same trial I did because if they did he would be convicted right now,” he said. “I cannot understand how they reached any other conclusion.”
That was the problem. They didn’t. And jurors would not explain the reasons why they were deadlocked, leaving everyone around them reading the tea leaves.
The Trentonian approached each of the 12 jurors for comment as left the courthouse in a group. But they all either ignored a reporter or made a series of terse comments that had nothing to do with the verdict.
One female juror told a reporter to, “Take a hike, dude.”
This happened moments after Judge Smithson chastised The Trentonian in front of jurors for publishing an article about a secret conversation he had with a male juror, Mark Nalbone, on Wednesday about a conversation he had heard Heyburn have with his client’s family.
Nalbone said to a reporter on his way out: “Not laughing now.”
He was referring to a Trentonian reporter chuckling at Judge Smithson’s public disavowal, which dissuaded jurors from discussing their deliberations over the last three and a half days.
Jurors were handed the case Monday following closing arguments from opposing attorneys.
Virtually out of the gates, the jury appeared deadlocked, asking the judge to send it home early Tuesday, their first full day of deliberations, following days of key testimony from witnesses Melissa Brown, former Trenton state prison guard Kenneth Crawford, city resident Phillip Hedgepath and bar bouncer Kevin Cole.
Brown testified she saw the “fire” coming from the gun, but did not get a glimpse of the shooter’s face.
The testimony of Crawford, the state’s star witness, was inconclusive at best. He said he was parked across the street in his SUV at the time of the shooting but that his view of the incident was obstructed by a vehicle.
McCauley introduced Crawford’s 911 tape to jurors in which he gave a detailed account of the shooting and the shooter. The former Trenton prison guard described the shooter as black man with dreadlocks, standing 6 feet tall, and wearing a light-colored shirt. He said the shooter was standing over Smalley, pumping rounds. But he admitted after reading newspaper coverage, he had mistaken Smalley, the victim, for the shooter.
Both Brown and Smalley had dreadlocks.
Brown, who was accompanied by several men to the bar, was captured by surveillance wearing a white shirt. He also appeared to be wearing a black glove on his right hand moments before the shooting.
Hedgepath testified the black glove unsettled him as he saw at least three men wearing black gloves. He said he knew people to wear gloves to avoid leaving fingerprints.
Hedgepath and Cole appeared to give prosecutors their motive, describing an encounter between Brown and Smalley’s people at La Guira Bar the week before the murder. It wasn’t clear whether Smalley was present from the testimony.
But Cole testified he broke up the fight and watched from inside the bar as the men chased Brown from the bar.
McCauley said in his closing argument Brown was out for revenge when he was seen on tape lurking outside the bar. Heyburn countered there was no proof his client killed Smalley and that it was more likely Vereen was the shooter.
As proof, he pointed to Vereen stepping off camera for four seconds prior to the shooting and then appearing to tuck something in his waistband as he fled.
The jury was unable to come to sort through it all.
“I think a couple of the jurors were stuck on the evidence that my client had a glove,” Heyburn said. “They extrapolated he had to be the shooter.
“If the glove wasn’t in this case,” Heyburn said, harkening back to a statement from famed attorney Johnnie Cochran, “they would have acquitted.”