Judge refuses to dismiss smokeshop case
CHARLESTOWN, R.I. – The Narragansett Indian Tribe may appeal a state superior court judge’s refusal to dismiss the smokeshop case against seven tribal members after learning that prosecutors failed to turn over hundreds of pages of police documents until a few days before the trial was scheduled to begin.
The now infamous smokeshop case involves misdemeanor charges against Chief Sachem Matthew Thomas and six tribal members stemming from a state police raid on the tribe’s tax-free smokeshop in July 2003. The raid ended in a scuffle that was televised across the country.
On Feb. 12, Superior Court Judge Susan E. McGuirl reprimanded prosecutors from the state attorney general’s office and state police for giving key documents late to the tribe’s defense attorneys and failing to hand over other documents until they were subpoenaed.
Testimony further revealed that an unknown number of e-mails relating to the smokeshop raid may have been deleted and cannot be recovered.
But even though the state officials showed a lack of due diligence, McGuirl said their actions appeared to be ”a lack of attention” rather than deliberate, and would not irreparably undermine the tribal members’ ability to present their defense.
McGuirl scheduled the trial for Feb. 25.
John Brown, tribal council member, said the tribe believes the case has been irreparably harmed and should be dismissed.
”They’re more interested in preserving the standards of the state than they are in preserving justice. How do you try a case when you have missing evidence?” Brown asked. ”They have already testified differently to what the documents say and they’ve already placed documents into evidence that differ from other documents they placed in evidence.”
The tribe has 30 days from McGuirl’s decision to file an appeal in state court.
”We’re looking at our options initially to the Rhode Island Supreme court for a dismissal and if they do not dismiss this case, then we may opt for a writ of habeas to the federal district court, because a severe injustice would have been done to the defendants and to the tribe. This case clearly shows the inability of the state of Rhode Island to be able to dispense justice on behalf of the Narragansetts, which is nothing new,” Brown said.
The attorney general’s office did not return a call seeking comment.
The tribe’s appeal would be the latest twist in a case that has wended its way back and forth through state and federal courts.
At the time of the police raid in 2003, the tribe was operating its smokeshop on the assumption that it had a right to do so as a sovereign Indian nation. After the raid, the tribe filed a federal lawsuit claiming the state had violated tribal sovereignty and immunity by sending state police onto sovereign land.
The suit ended in late 2006 when the U.S. Supreme Court let stand a lower court decision upholding state jurisdiction on the tribe’s 1,800-acre settlement lands.
In August of 2007, Gov. Donald Carcieri fought the tribe’s subpoena to testify about his instructions to the state troopers before the raid, but McGuirl ordered him to testify, saying the tribe’s right to present evidence outweighed Carcieri’s claim to ”executive privilege.”
Carcieri appealed to the state Supreme Court which overturned McGuirl’s order and sent the case back to her.
The tribe had intended to question Carcieri about a meeting the night before the raid, among other things, Brown said.
That night, the tribe met with the governor and attorney general to try to work out an arrangement about the smokeshop, such as a tax compact, said Attorney Doug Luckerman, who represents the tribe in other cases.
”The tribe was trying to avoid any kind of confrontation,” Luckerman said. ”There was no hint from the state that if there was no deal the state was going to come in and take action. Everybody at that meeting agreed that we should avoid any use of force; that we were going to court. The only disagreement was what court the argument should be in, state or federal.”
Luckerman said he worked through the night drafting the tribe’s legal complaint.
”At 11a.m., I got a call saying the chief had been arrested. So from day one and all the way through it’s just been this history of keeping back details, just one thing after another of hiding information,” he said.
The federal court has also played a role in what has become ”a boondoggle,” Brown said.
”The federal court could have handled this case because of the implied and expressed trust responsibility of the federal government. You do not cease being an Indian just because the state has some sort of jurisdiction. The federal court has an obligation to intercede when a tribe’s rights are being abridged,” Brown said.
