Jailhouse news interview with suspected Hwy. 169 road rage killer prompts judge's gag order

Prosecutors say that a man jailed and charged with fatally shooting another driver on Hwy. 169 last year revealed crucial information about his case during a news media interview last week that now "poses significant dangers" to there being a fair trial.

The allegations leveled last week against Jamal Smith prompted Hennepin County District Judge Nicole Engisch to grant a written request from the County Attorney's Office for a temporary order barring Smith, attorneys on both sides, witnesses and anyone associated with the court from making "extra-judicial statements relating to the case or the issues in the case for public dissemination."

The prosecution went on to contend that "a 'trial by newspaper' poses significant dangers to a fair trial, including, most significantly, the possibility that pretrial publicity will taint the jury [pool]."

Smith remains held on $3.5 million bail on charges that he shot 56-year-old Jay Boughton of Crystal on the night of July 6 as their vehicles traveled south on the highway near the Rockford Road exit in Plymouth.

A grand jury returned a first-degree murder indictment against Smith in October. He's also charged with second-degree murder during a drive-by shooting and illegal weapons possession. Conviction on the highest count would mean a sentence of life in prison without the possibility of parole.

Engisch heard from defense and prosecution attorneys Monday about whether to make the gag order permanent. A ruling from the judge is pending. Smith, 34, of Chicago, is scheduled to go on trial before a jury on June 27.

In its motion for a gag order, prosecutors said that Smith gave an interview to a local media outlet Thursday and "discussed the facts of this case from his perspective. Defendant further discusses specific witnesses in the case, their statements, and his opinion or position on the truthfulness of those statements to include the substance of the [closed-door] testimony at the grand jury."

Neither the prosecution's motion for the gag order nor the judge's filing granting it on a temporary basis mentions the news outlet that interviewed Smith. Neither document takes up whether disclosure of the interview's contents should be restricted to any degree.

Defense attorney Emmett Donnelly, citing the gag order, declined to offer details about the interview, but did say, "We had an extensive argument [Monday in court] about free speech, and a record was made about our position. I don't want to risk violating the gag order by speaking at this point about our position out of court."

Assistant County Attorney Max Page, speaking on behalf of his office, said, "The motion is currently under advisement with the court, so we are not going to comment at this time."

Along with what Smith revealed during the news media interview, according to the prosecution's motion, the "defendant offers to provide ... witness transcripts to the media for their review and publication. The interview also had conversation about the potential for additional interviews and disclosures to the media. The state has concerns, based upon preliminary information, that this interview was facilitated by an investigator working on [Smith's] behalf."

According to prosecutors, Boughton's son told police that an SUV pulled alongside their vehicle, and his father "gestured" at the other driver about 10 seconds before a bullet shattered the driver's side window of their vehicle and struck his father. The charges did not specify the type of gesture made, but a relative told WCCO Radio that law enforcement told the family that the SUV's driver wanted to move into the right lane, but Boughton gave a shrug toward the other vehicle before being shot.

Smith has denied shooting Boughton and contends that someone else in the vehicle with him pulled the trigger.

The gag order marks the second time that Judge Engisch has had to intervene because of Smith's communications while in jail. She revoked his phone privileges in November, citing repeated efforts to manipulate witnesses.

In defiance of repeated orders from the court, Engisch wrote in her order, Smith "has had contact with witnesses through a number of jail calls, all of which he initiated."

Smith's phone use is now limited to private calls with his attorneys. Engisch rejected the defense's argument that any restrictions would violate Smith's free speech rights.

"The state has presented clear and convincing evidence ... that [the] defendant has tampered or attempted to tamper with a witness," the judge said. Her order noted that Smith called one witness 87 times, and in the 10 times that the calls were answered, the two spoke for a total of nearly 2½ hours.