Governor Carcieri yesterday asked the state’s highest court to overturn a lower court ruling that he must testify at the trial of seven Narragansett Indians who were arrested after he ordered a raid on a tribal smoke shop.

Arguing that the governor’s testimony is unnecessary and would undermine the concept of executive privilege, the appeal asks the Supreme Court for an expedited review that would resolve the matter before the four-year-old case against the tribal members goes to trial on Sept. 17.

A lawyer representing six of the seven tribal members subpoenaed Carcieri on Aug. 1, seeking details on his instructions to then-state police Supt. Steven M. Pare before troopers conducted the raid. Carcieri’s lawyer fought the subpoena but Superior Court Judge Susan E. McGuirl ruled that the tribal members’ rights to due process outweighed the governor’s claim of executive privilege, especially in light of his public comments after the raid.

Carcieri’s appeal, filed yesterday afternoon by Marc DeSisto, argues that the threshold for overruling executive privilege has not been met because the governor’s testimony is not germane to the charges against the tribal members, the governor does not have personal knowledge of the raid and information on the governor’s instructions can be obtained from “other sources.”

“At the end of the day, this is just an attempt to deflect attention from the actions of the defendants,” said Carcieri spokesman Jeff Neal.

“It is a diversionary tactic that has little or nothing to do with the underlying case.”

Carcieri ordered the state police to executive a search and seizure warrant on the roadside smoke shop after the tribe began selling cigarettes without charging Rhode Island taxes, in violation of state law. The result, on July 14, 2003, was a violent clash that ended with eight arrests, including that of one juvenile, and eight people being sent to the hospital with minor injuries.

At a news conference the next day, Carcieri, with Pare at his side, said he had told the state police to withdraw if they encountered resistance.

Pare, testifying this month, denied that he received those instructions but said there was an understanding that no one should get hurt or killed over untaxed cigarettes.

The seven tribal members, including Chief Sachem Matthew Thomas, face up to a year in jail and $1,000 fines for misdemeanor charges of resisting arrest, assault, obstruction and disorderly conduct.

Lawyers for the tribal members say the governor’s instructions to Pare would shed light on why the raid transpired the way it did.

“The governor is an incredibly important witness,” said Kevin J. Bristow, who represents tribal conservation officer Thawn Harris. “There was a stage set that resulted in the state police entering the grounds the way they did.”

In arguing for executive privilege, Carcieri is invoking the concept that that executive level government officials should be spared, in certain instances, from having to reveal confidential information or personal communications at the request of the legislative branch or the courts because it would hamper their ability to govern.

A Supreme Court clerk said the governor’s appeal will have to be screened to determine if and when it will be heard. The court is between sessions but reconvenes for a conference on Sept. 6. Memorandums to oppose the governor’s appeal must be filed within 20 days, she said.

redgar@projo.com