R.I. judge refuses to dismiss smoke shop case

By Ray Henry
Providence, Rhode Island (AP) 2-08

A Superior Court judge refused to dismiss criminal charges against seven Narragansett Indians accused of scuffling with police during a 2003 raid on a tribal smoke shop.

Judge Susan McGuirl criticized prosecutors and state police for failing to turn over hundreds of pages of police documents until shortly before the scheduled start of trial, but she said the lapse was the result of a communication breakdown and not deliberate.

“Clearly, it appeared to me to be a lack of attention, a lack of care,” she said.

After the upcoming trial, McGuirl will allow defense lawyers to seek a reimbursement from the state for the time and expense of fighting over the late-discovered evidence, she said. Defense attorney William Devereaux said the tribe had not decided whether to seek a reimbursement, but he said their legal fees easily total thousands of dollars.

“You’re talking about a fairly impoverished tribe,” Devereaux said in an interview. “They don’t have a lot of resources.”

Chief Sachem Matthew Thomas and six other Narragansett Indians were arrested for allegedly scuffling with police during a July, 2003, raid on a tribal smoke shop that was not collecting state taxes. A federal appeals court later ruled the shop was operating illegally.

The defendants are charged with misdemeanor offenses ranging from disorderly conduct to assault. Each charge carries a maximum year in prison, although lawyers say the defendants are unlikely to receive prison time if convicted.

In her ruling, McGuirl repeatedly criticized the attorney general’s office and state police for turning over key documents late to defense lawyers, then failing to give other documents until getting a subpoena from defense attorneys.

Among the major missing pieces of evidence was a report from then-Capt. Steven O’Donnell, one of the highest ranking officers at the scene, describing an angry confrontation between a police officer and Thomas just before his arrest and tape-recorded statements from another defendant that were in an internal affairs file.

During weeks of testimony, state police officials said some e-mails relating to the raid may have been deleted and cannot be recovered.

Defense lawyers wanted the case dismissed because of that lapse, but prosecutors said they did not know the documents existed until recently and quickly turned them over.

Although the mistake was caught before trial, McGuirl complained of a “complete breakdown of communication” between prosecutors and various units in the state police involved in the raid.

McGuirl also ruled that The Associated Press must give prosecutors 124 unpublished photos taken during the raid by an AP photographer. The attorney general’s office subpoened the pictures after learning the former AP photographer has been called as a witness for the defense.

Lawyers for the AP fought the subpoena, saying many of the pictures were irrelevant to the criminal case and that the request was burdensome. McGuirl said that more than 100 other unpublished AP photos were irrelevant, but ordered the remaining pictures turned over because they show the behavior of defendants and witnesses or help establish the timeline of the raid.

The trial is scheduled for late Febuary.