Arguing that the state police deliberately withheld information that could have assisted in their defense, six of the Narragansett Indians arrested during a 2003 raid on a tribal smoke shop are asking the court to dismiss the charges against them.

At issue are two undated witness statements by state police Maj. Steven G. O’Donnell, who was a captain at the time and one of those in command at the scene. The first eight-page statement was submitted to the court Jan. 4. A second 11-page statement was part of a packet the state police gave the court Friday after being subpoenaed to produce all documents related to the raid.

The reports are being used by defense lawyers to bolster their arguments that the cases should be thrown out. State prosecutors will argue against the dismissal Thursday in Superior Court, Providence.

Judge Susan E. McGuirl agreed to delay the trial at the defense lawyers’ request, saying the newly released documents contained “significant factual information” that could play a role at trial. Jury selection had been slated to start tomorrow.

State police raided a tribal smoke shop in Charlestown at Governor Carcieri’s order on July 14, 2003, to stop the Narragansetts from illegally selling cigarettes without charging Rhode Island taxes. The raid descended into violence. Seven adult tribal members, including Chief Sachem Matthew Thomas, were arrested for misdemeanor charges of disorderly conduct, assault, and resisting arrest. Six of the defendants are being represented by the same lawyers.

Prosecutors and defense lawyers have been firming up details about what witnesses they will call as part of the discovery process as the trial approached over the past two weeks.

Defense lawyers complained after O’Donnell’s first report came in that it might have helped their arguments to the state Supreme Court that the governor should be called to testify at trial. McGuirl ruled in August that he could be called to the stand. The high court overturned that decision Dec. 21, saying his testimony would not be relevant to defense arguments that troopers used excessive force.

In his eight-page statement detailing preparations for the raid, O’Donnell said, “Major [John] Leyden discussed the possibility of resistance, stating that should members of the state police meet with any resistance, to have our people stand down, but to take every precaution to protect each other.”

Carcieri made numerous comments on TV and radio in the days following the raid that he had instructed police to withdraw if they met resistance. Retired Col. Steven M. Pare and Maj. John Leyden both denied ever receiving those instructions during testimony before McGuirl last fall.

In the statement released Friday, O’Donnell said “Major Leyden discussed the possibility of resistance and to take the necessary steps to protect each other.”

O’Donnell’s 11-page statement provides other details absent from his shorter report, including a description of a heated face-to-face exchange between Thomas and state police Detective Kevin Barry that he says was spurred by Thomas’ interference with an arrest. Barry, he says, was acting out of character, so much so that he intervened and asked him to back off.

He says he later learned that Barry had seen Thomas and tribal councilman Hiawatha Brown assault another officer.

Also missing from the shorter version were details about a scuffle between Thomas and Sgt. Robert MacKisey and Thomas’s subsequent arrest. Thomas, O’Donnell wrote, tried to stop officers from removing a handcuffed John Brown from the scene, despite being told by MacKisey not to interfere. “Sgt. MacKisey showed restraint and tussled with Matt Thomas and was assisted by others bringing Thomas to the ground and placing him under arrest.”

The longer statement contains details about tribal police Lt. Rodney Champlin informing state police the day before the raid that his department would honor a federal search warrant, but not one issued by a state court.

O’Donnell said an officer passed that message along to him while he was speaking with Leyden on the phone, but that the officer later said “I had a look upon my face as if it did not register. It did not and therefore was not passed onto to Major Leyden.”

The state police proceeded with a state court warrant.

The second statement includes a line identifying Leyden as the officer in charge that does not appear in the shorter version.

O’Donnell said yesterday that he could not comment on his statements because they are before the court.

To the defense, the omissions represent a deliberate violation of their clients’ right to due process and that the only way to right the “blatant and highly prejudicial course of conduct” is to dismiss the charges.

“The exclusion of information regarding Trooper Barry’s encounter with Chief Thomas from the eight-page report, and more importantly, the two versions of O’Donnell’s observations of the arrest of Chief Thomas represent a deliberate deletion and change of evidence provided to the defense,” Gary Pelletier, of the defense team, wrote. “Describing one event in an internal report and retelling significantly different version of observations in another report equates to an obstruction of judicial process.”

Defense lawyers are asking the court to appoint a forensic expert to analyze state police hard drives to ensure that all files had been turned over.

Judge McGuirl said she was not convinced that the statements would have influenced the Supreme Court’s ruling that Governor Carcieri does not have to testify.

William P. Devereaux, a defense lawyer, said they sought the additional subpoena because they were concerned that they had received O’Donnell’s statements and learned about statements by other witnesses to the raid with just a week before trial.

“It makes you wonder if there’s anything else out there,” he said.

Prosecutors were not aware of O’Donnell’s 11-page report until Friday either, because it was part of the state police internal affairs file, said Michael J. Healey, spokesman for Attorney General Patrick C. Lynch. He noted that defense lawyers had not submitted summaries about their witnesses until yesterday.

“Obviously, it would have been great to have them earlier,” he said.

The state is satisfied with the state police cooperation with discovery, he said.

“We know Major O’Donnell as a first-rate law enforcement officer,” he said. “We’re certain this is an honest mistake.”

Lynch in a statement yesterday said the motion to dismiss was “just the latest in what has become a series of frustrating delays.”

kmulvane@projo.com