Primary issue: The prosecution is attempting judicial slight-of-hand by ignoring the substantial issue and substituting their own straw-man issue.

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That straw-man issue is created by accepting without question the Minnesota Supreme Court’s determination that the courtroom closure was “administrative” and then proceeding with the easy argument that “administrative” closures are allowed. The earlier “fact-bound” decision remains incorrect because of incomplete facts, which is the basis of this appeal.

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The substantial issue is whether the closure was administrative or judicial, as noted on page 12. The prosecution fails to address that critical issue, admitting on page 13 that public trial right  DOES APPLY to an evidence suppression hearing. The undisputed facts are that the closure hid that the judge was hiding critical evidence and denying critical witnesses. If that’s not “judicial”, then that word needs to be redefined.

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The statement about “evidentiary boundaries” deceptively evades the issue of hiding the total exclusion of critical evidence and irreplaceable witnesses. This is not a “boundary” issue, it is an issue of total exclusion. Absence of such exclusion would likely have reversed the jury’s verdict, as demonstrated by the prosecution’s strong and long-repeated demands that they be given those exclusions. Total exclusion is not merely “administrative” and such far-reaching exclusion deserve public scrutiny. It must be noticed and emphasized that the prosecution weakens their case with irrelevant assertions, deceptions and outright lies:

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• On page 8: Judging the importance of courtroom closure by its duration, that it was only twotenths of one percent, is proven irrelevant by comparison to other parts of the trial. If that was to be a valid standard, both the jury’s verdict and the sentencing could be ignored as well.

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• On page 1, third paragraph: Smith did NOT “see his neighbor drive by his home.” This is not possible because his home is 550 feet from the nearest public street which dead-ends at that point.

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• Third paragraph: Smith did NOT “park(ed) several blocks away.” He parked two blocks away. Two is not several.

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• There is no street, public or otherwise, near Smith’s home as given in (2). There is only his private driveway. His home has no doors facing that driveway. The front of his home is the river and he entered from the front side. (The implications of sneaking and associated guilt are traditional deceptions common in prosecutorial misconduct.)

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• Smith did NOT “went down to his basement.” He entered his basement from its own outside door on the front of his home. (It is a “walk-out” basement, the home is on the river bank.)

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• Page 2, paragraph 1: The prosecution has frequently and FALSELY both implied and stated publicly without any proof that Smith was watching the four-view monitor. State’s evidence proves that it was two rooms away, 40 feet away and around two right-angle corners. Furthermore, it was only a 5” monitor, resulting in 2” wide images, adequate only to determine whether or not a camera was functional.

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• Page 2, paragraph 3: “Brady…walking around in the house,” earlier given to the Circuit Court as “wandered around for a while” is FALSE. Smith’s testimony, corroborated by the audio recording that Brady came directly down the 35- footlong central hallway without stopping, turned into the stairs and came directly down the stairs. The prosecution is falsely implying that the attackers’ victim had time to consider and plan.

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• “As Brady walked down the stairs, Smith shot him several times.” Smith’s testimony was “one shot.” The state’s own ballistics evidence demonstrates one shot. The audio recording which was never protected from subsequent editing as mandated by US Code, has the sounds of two shots. (But editing a digital audio file (not a tape) is trivially simple.) Later, prosecutor statements say “multiple shots”, which might be stretched from “two.” However, “several” only means three or more. This is a sequence of accumulating multiple lies.

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• Page 2, paragraph 4: “After Brady fell” falsely implies that he was still at the bottom of the stairs. As prosecutor Orput falsely claimed in reference to the female attacker’s location, “in nearly the same place.” That is a LIE, as proven by state’s evidence photos. Brady continued his attack on Smith, running towards him, finally falling again, 14 feet from where he first fell at the bottom of the stairs. Smith, their victim, was continuing to defend his life against a continuing attack.

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• Page 3, paragraph 1: “After approximately 30 hours passed…” The attack was at 12:30 p.m. Smith first called his neighbor at 10:30 a.m. That’s 22 hours, not 30. Judge Anderson, at the prosecutor’s insistence, denied psychological testimony which would have explained the reasons for that delay. That is contrary to a great many case precedence and contrary to 100’s of published law review articles. The “state of mind” of the victim of multiple attacks is critical evidence. (NB=Minnesota statutes 609.748 and .749, on stalking and harassment state that three attacks in 12 months results in terror. Smith suffered six felony burglaries in five months and four violent home break-ins during the final 30 days.)

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We must apply the legal maxim: “Falsus in unum, falsus in summum.” (If you lie once, nothing else you say can be trusted). If the prosecutors thought they had a solid case, why have they found it necessary to tell so many lies? Haven’t these “defenders of justice” taken oaths to tell the truth?

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On page 5, “The court stated that the evidence was inadmissible because Smith did not know the identity of those who broke into his home before Thanksgiving.” “Identity” is a tricky word. How well would a victim need to know a repetitive violent intruder who takes extra effort to conceal his identity? Would his birthday and school status need to be known”? All of the attacks were “signature crimes”: the same time of day, method of entry, objects stolen, the type of chaos left afterwards. The Thanksgiving Day attack, the sixth attack, was following the same pattern.

 

Then, as demonstrated by Smith’s testimony to Deputy Luberts on Friday, Smith identified the shoes worn by the attacker, which he saw coming down the stairs. They were the same shoes that were worn earlier when he had stolen three of Smith’s guns. Deputy Luberts later stated on record, “I don’t know why he thought the shoes were important.”

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Because Smith knew that this particular attacker had earlier stolen three of his guns, and Smith was justified in assuming that people who steal guns use guns. Thus, he was justified in firing that one initial non-lethal shot. Then when the attack continued, he was well justified in firing again. Prosecutor Orput’s claim that Brady “lay helpless at the bottom of the stairs” is absolutely FALSE, proven false by the state’s own photographic and ballistics evidence. Furthermore, in this small town of 8,500 (population), there were no other break-ins/burglaries except those also proven to have been committed by these same attackers. They demonstrated their own criminal propensity, have been committed by these same attackers. They demonstrated their own criminal propensity, as the female attacker bragged in her cellphone text: “We’re Bonnie and Clyde now.” Judge Anderson’s implication that there may have been other gangs of attackers is unjustified by either fact or speculation. The exclusion of previous attacks is unjustifiable.

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During the disputed courtroom closure, the court ruled out admission as evidence of the shoes and the door panel with its clear, crisp print of tread pattern resulting from having been kicked in for access. Again, this exclusion was the result of vigorous demands by the prosecution. Judge Anderson was trying to hide what it was that he was hiding. If the media, or especially the jury, had understood the threat that Smith knew he was facing, they could have easily decided that his selfdefense was justified.

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To hide the existence of all that crucial evidence is judicial, not administrative. This is why public scrutiny is essential for hearings. The evidence was not only excluded, but also hidden from public judgement, demonstrating why this particular courtroom closure must be ruled as “judicial.” Then, as state has already admitted, the trial is obviously irremediably flawed.

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END