Defense Contests Charges Against Smith

A judge is currently considering whether former Harvard student Brittany J. Smith can legally be tried for her involvement in the May 2009 Kirkland shooting, despite the non-prosecution agreement she signed in July 2009.

Smith was indicted on six counts—including accessory after the fact of murder, illegal possession of a firearm, and willfully misleading a grand jury—in March 2010. Prosecutors claimed that she had lied to investigators, thereby violating the terms of the non-prosecution agreement they had made with her in exchange for her cooperation against the three other defendants in the case.

However, Smith’s attorney has argued that the state does not have grounds to revoke its agreement, and Smith should not be allowed to stand trial.

With Smith’s trial date set to begin in less than a month, the question of whether she can be prosecuted in this case has still not been settled by a judge.

NOW COMES THE COMMONWEALTH

In lengthy documents filed in Middlesex Superior Court, prosecutors outline the lies they allege Smith told investigators, which they say gives them cause to dismiss the non-prosecution agreement.

The state says that Smith made several false and misleading statements in order to protect her then-boyfriend Jabrai Jordan Copney, who allegedly fired the shot that killed Cambridge resident Justin Cosby, from the charge of felony murder.

Smith told prosecutors that when Copney and the two other men implicated in the murder—Jason Aquino and Blayn Jiggetts—came to her Lowell House room immediately following the shooting with a gun in his hand, “it was the first gun she had ever seen closely in her life. She specifically stated that she had never seen Jordan [Copney] or ‘Bliz’ [Jiggetts] with a gun before.”

However, Jiggetts told investigators that Smith watched him load the gun in her dorm room prior to the fatal meeting with Cosby.

Prosecutors further allege that Smith withheld knowledge of an earlier, related crime which would have strengthened their case against Copney.

Six months prior to the Kirkland murder, Copney and Jiggetts allegedly stole three pounds of marijuana at gunpoint from two Yale undergraduates—whom they met in Smith’s dorm room during the weekend of the 2008 Harvard-Yale football game.

Aquino, Jiggetts, and former Harvard student Chanequa N. Campbell—who was denied graduation by the University due to her connection with the Kirkland shooting—all stated that the 2008 robbery served as a model for the “drug rip” which the defendants planned to pull off on Cosby. Several lawyers familiar with the case have said that it will be important for prosecutors to establish the earlier robbery as a blueprint for the Cambridge crime, since the charge of first-degree murder rests on the fact that the murder was committed in the process of an attempted felony—in this case, the armed robbery of drugs from Cosby.

Prosecutors say that Smith could have helped them prove the precedence of the earlier robbery and that she instead withheld her knowledge of that theft.

When asked before the grand jury whether she knew about that robbery, Smith said that she had been asked about it by her friend Campbell but that she did not know anything about it.

Yet when police retrieved the murder weapon from the place where Smith admitted she had hidden it—under a friend’s bed in Lowell House—they found two IDs which Copney and Jiggetts had taken from the Yale students stashed in the same bag. Prosecutors say that this—along with Campbell’s testimony that she told Smith about her boyfriend’s involvement in an earlier robbery—proves Smith’s knowledge of the crime, which she neglected to share with police.

Smith told investigators that she believed Copney was going to buy drugs from Cosby when he met him in the basement of the Kirkland annex. But police say her conduct the day of the shooting further proves—in addition to her alleged sighting of the gun before it was fired and her alleged knowledge of the earlier robbery—that she knew the meeting would be a theft, not a transaction.

Several people, including Smith, have testified that she packed her bags before the shooting because she intended to go home to New York that evening. Yet court documents say that Smith had made plans via text message to meet a friend in the Dunster House dining hall for dinner that night. Prosecutors contend that Smith must not have had plans to depart Cambridge until she learned that her boyfriend and his associates were about to carry out an armed robbery.

TWO VERSIONS OF A ROMANCE

In a string of documents, the defense and the prosecution offer competing narratives of the events leading up to and following the shooting in the Kirkland annex. The depiction of Smith and Copney’s relationship in the two sides’ versions of events is strikingly different.

While prosecutors argue that Smith had a serious and ongoing relationship with Copney, which could provide a motive to lie in his defense, the defense aims to show that they did not have a strong attachment.

The state’s memorandum cites evidence from Smith’s “numerous” calls and visits to Copney in prison, all of which were recorded with the knowledge of both parties.

In these conversations, prosecutors write, “[Smith] indicates her hope that she is pregnant with [Copney’s] child. They agree that they will try to find a way to be married, and she describes research she has performed so that she can marry him in prison.”

The memorandum states, “The Commonwealth views these calls as reflecting an ongoing relationship of sufficient intensity that Smith is willing to lie to obstruct justice.”

Reading the motion filed by Smith’s attorney John T. Osler, one finds a very different view of Smith and Copney’s romance.

In Osler’s summary, he writes, “Smith and Copney had a strained relationship.”

Osler writes that Campbell recalled Smith being displeased that Copney was “taking her money and spending it all on marijuana.”

The defense’s motion claims that Copney once had sex with Campbell and refers to several instances in which Copney spoke disparagingly of Smith.

According to an account provided to investigators by one of the Yale students from whom Copney stole drugs, “Copney spoke of Smith and told the men that she was not really his girlfriend but just someone he was having sex with and that he had ‘more on the side or something.’”

Jiggetts—one of the alleged accomplices—described the relationship in more blunt terms, saying that Copney had called Smith his “meal ticket.”

NULL AND VOID?

At the moment, the question of whether Smith can be prosecuted hinges not on the attorneys’ salacious suggestions about Smith’s relationship with Copney but on the decision of a Superior Court judge.

The non-prosecution agreement that Smith signed in July 2009 states that the District Attorney’s office can declare the arrangement “null and void” in the event that “it is determined that [Smith’s] cooperation, assistance or testimony has not been complete, candid and truthful.”

Former prosecutors said that the D.A.’s office has the authority to revoke such an agreement in the event that a defendant is untruthful.

“When the Commonwealth goes the distance and says, ‘Okay, we’re not going to prosecute you,’ you have to do certain things,” said Karen A. Colucci, a defense lawyer and former Middlesex assistant district attorney.

Smith’s attorney contests prosecutors’ allegation that Smith broke that agreement, saying that the state’s case against Smith’s truthfulness rests on unreliable testimony provided by individuals involved in the crime.

“What is it that the government finds so unsatisfactory about Smith’s performance? ... On what basis?” Osler’s motion asks. “The government seeks to abrogate the non-prosecution agreement principally on the basis of isolated segments of the statements made by Jiggetts, Campbell, and Aquino.”

The decision is now in the court’s hands. Osler confirmed that the matter was discussed at a hearing earlier this month but said it is still under consideration.

“If she did in fact lie—if she gave false information knowingly, the court’s going to have to decide,” Colluci said. “They may nullify that agreement, and if they do so, she can be prosecuted.”

—Kerry M. Flynn, Hana N. Rouse, and Xi Yu contributed reporting to this article.

—Staff writer Julie M. Zauzmer can be reached at jzauzmer@college.harvard.edu.