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.