Tribal members Randy Noka, Hiawatha Brown and Chief Sachem Matthew Thomas leave Superior Court yesterday.

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The Providence Journal / Andrew Dickerman

PROVIDENCE — A Superior Court judge yesterday refused to order a new trial for three Narragansett Indians convicted of assaulting and scuffling with the state police during the smoke-shop raid, rejecting defense lawyers’ arguments that the jury was tainted by racial bias.

Judge Susan E. McGuirl denied a request for an inquiry into possible jury misconduct that included an accusation that one juror banged his water bottle like a tom-tom as the jury was about to render its verdict. “There were no clear racist statements that were said,” McGuirl said.

Defense lawyer William P. Devereaux had argued that the suggestion of prejudice and possible misconduct entitled the tribal members to a hearing and new trial.

Three of the jurors submitted affidavits to the defense team accusing two others of making offensive comments that they construed as racist, Devereaux said. One referred to the Narragansetts as “those people” and questioned why tribal members rose from their seats when Chief Sachem Matthew Thomas took the stand, saying “he’s nothing.” The other banged his water bottle like a tom-tom as the jury was about to return its verdict –– direct evidence of a racial thought process, Devereaux said.

In addition, a sheriff had caught the two jurors in question presumably discussing the deliberations with another juror outside the rest of the panel, Devereaux said. The forewoman, after consulting with one, sent a note to the judge saying the single minority juror was being intransigent, he said.

“There’s enough here to give us a hearing,” Devereaux said, adding, “They are entitled to the very end to know they got a verdict from a fair and impartial jury.”

But Special Assistant Attorney General Pamela Chin countered that there was no evidence that the jury had been corrupted by outside evidence. She acknowledged that there was some friction between jurors, but dismissed the accusations as speculation and interpretation about the others’ actions.

The crux of the state’s whole case, she said, was that “those people” shouldn’t have put their hands on a cop, as the juror was claimed to have said.

“I don’t know how you make the leap to say that shows any kind of bias on the part of the juror,” Chin said.

She added: “I don’t know in this day and age what a tom-tom-like cadence would be.” She implored the judge to let the jury deliberations remain in the jury room.

McGuirl sided with the state, saying the accusations amounted to inferences and speculation. She, too, said she did not understand the reference to a tom-tom. She added that the defense had taken a risk by allowing tribal members to rise when Thomas took the stand, which might not have worked in their favor.

In the end, she said, the information did not rise to the threshold needed to demand a hearing. The defense did not show sufficient racial bias to warrant an inquiry and new trial, she said.

Dozens of state police executed a warrant on July 14, 2003, to stop the tribe from selling tax-free cigarettes from a roadside shop on tribal land in Charlestown. The raid erupted into a scuffling match as troopers came onto the land. Seven adult Narragansetts were arrested.

After a six-week trial, a 12-member jury in April found Thomas guilty of assaulting a trooper. The panel also convicted Tribal Councilman Hiawatha Brown of assaulting a trooper by slamming her arm in the door and First Councilman Randy Noka of disorderly conduct for grabbing at an officer as police came onto tribal land.

Four others were exonerated, with the jury acquitting the Narragansetts of 12 counts and the judge dismissing another.

McGuirl yesterday also denied another motion for a new trial that asserted that the prosecutors had not produced enough evidence to convict.

McGuirl relied on photographs to support the convictions, particularly the images of Thomas grabbing Trooper Ernest Quarry from behind as Brown clutched Quarry’s throat. She called the interaction the “most disturbing” part of the whole incident.

Quarry, she said, was the best witness the state produced. “I thought his testimony was credible.”

Speaking outside the court yesterday, Thomas promised to appeal McGuirl’s rulings.

“Obviously, I’m concerned when I hear about somebody doing a tom-tom … after they get a verdict, which in my opinion is like a victory dance.”

Rhode Islanders, he said, have difficulty understanding what might offend Native Americans.

“I think everyone in the courtroom, except the judge, I guess, felt it was offensive,” he said.

McGuirl delayed sentencing until tomorrow to give defense lawyers a chance to find out how various sentences might affect tribal leaders’ dealings with federal agencies.

kmulvane@projo.com