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Issues surrounding smoke shop trial aren’t settled

01:00 AM EDT on Sunday, April 27, 2008

Bad vibes linger from the Narragansett Indian smoke shop trial in Superior Court.

I’m talking about searing comments from jurors regarding the state police, Governor Carcieri and Attorney General Patrick Lynch.

Don’t think that Carcieri, Lynch or Col. Brendan Doherty, current police superintendent, are trembling.

Far from it.

If I were in their positions, I might be devastated by reading, for example, that jurors felt they couldn’t trust members of the state police who appeared during the trial.

Carcieri, Lynch and Doherty take the punch but stand their ground.

Doherty declares, “The people who testified in that trial are honorable troopers, and it hurts me to read that. … I believe that every one of them told the truth as they recalled it.”

While standing behind his force’s actions in court and in raiding the Charlestown smoke shop on July 14, 2003, Doherty at least expresses interest in what the jurors have to say. He says he’d like some day to meet with them, individually or in a group.

Quoting Winston Churchill, he says, “Courage is what it takes to stand up and speak; courage is also what it takes to sit down and listen.”

I had no problem with the jury’s conviction earlier this month of Chief Sachem Matthew Thomas and two other tribal members on misdemeanor charges stemming from the raid on their tax-free operation.

It seemed a close call, and if the jurors thought Thomas was guilty of assaulting a trooper, I don’t quarrel with them.

Ditto for the conviction of Tribal Councilman Hiawatha Brown for assault and disorderly conduct and First Councilman Randy Noka for disorderly conduct.

Nor do I quarrel with the acquittal of these defendants and others on other charges.

In comments as well as by their votes, jurors made clear that they thought at least three of the Narragansetts acted improperly.

If the convictions are not overturned in a new trial or on appeal, those found guilty stand to pay a price for their actions.

But what about the state?

Juror John A. Cassidy III said in an April 5 Providence Journal story that he was shocked by the raid. Speaking with reporter Katie Mulvaney, Cassidy called it an “awful, awful attack,” said he didn’t believe the testimony of most state troopers and planned to join other jurors in asking members of Congress to press to find out why Lynch did not charge any of the state police.

In an April 13 Mulvaney article, juror Donald Reese said the reason he and his colleagues cleared the Narragansetts of all charges of resisting arrest was that the troopers used excessive force.

He said he believed troopers who testified were lying or making things up.

In a recent letter to the editor, Reese, an English teacher, let loose.

He said jurors agreed there was poor leadership all around, from the state’s staging the raid to Thomas’ telling tribal members that the police had no right to serve a search warrant on tribal property.

As a citizen, I was especially struck by Reese’s report that the jurors agreed “we could not trust the testimony from the state police and could only convict on the basis of video and photographs and that showed us misbehavior beyond a reasonable doubt.”

He added:

“Of the 13 members of the Rhode Island State Police who appeared before us during that trial, not a single trooper appeared to us to be completely trustworthy. All appeared at least artfully evasive, some downright dishonest. Not a single one of the convictions was based on the testimony of state troopers.”

Reese said he hoped never to be in court again. “But if I were called tomorrow to serve on a jury that was to decide whether individual members of the Rhode Island State Police used unnecessary force, tried to provoke the members of the tribe, and acted absolutely unprofessionally in their actions that day, I would gladly do so and sit for another six weeks. If I could judge the actions of the governor, the attorney general and the leadership of the state police, I’d willingly sit in court for another year.”

This is strong stuff, so I set about questioning top officials, and it was no surprise when Thomas said later that he would ask the U.S. Attorney to look into the way the state handled this thing.

This chief who is in trouble for his actions says state figures “have to be held accountable” for theirs.

Republican Carcieri, who hesitated to order the raid but eventually acquiesced on the advice of Democrat Lynch, had little to say to me last week about the jurors.

“The trial went forward, they came to a conclusion,” Carcieri said. “As far as I’m concerned, that’s what our process is. When that whole thing occurred, I was hopeful it would not occur — you know that — but it did.”

He added, “I support the state police. I think they did a commendable job. Beyond that, whatever jurors are saying, I have no comment on that. That’s their right.”

Although Carcieri stands up for the police, he did say soon after the raid that they had disregarded his instructions to withdraw if they met resistance from the tribe. Retired Col. Steven Pare, then the superintendent, confirmed for me at the time that Carcieri indeed gave those instructions, but in a preliminary proceeding in the recent trial he said the governor in fact had not. Pare was not called to testify at the trial itself.

At the time of the raid, Doherty was the state police administrative officer. He says he was not involved in the raid.

He tells me he was “troubled” by the juror comments and respects the work the men and women did. “However, I stand behind the troopers, their actions. They were faced with adversity from the time they walked on the land. … I would also like to point out the fact that looking at film footage or looking at frames of different situations doesn’t always tell a true story.”

While Doherty says the troopers who testified told the truth, he notes that anyone could have a hard time recalling every detail of something several years before. He also asserts, “The defense attorneys did a good job twisting the story.”

Doherty declares, “When the state police walked on that land, they were immediately confronted and pushed and blocked and obstructed. They were there lawfully. If no one had obstructed them or pushed them, there wouldn’t be any assault arrest. There wouldn’t be any dishonorable conduct arrest.”

He says he is meeting with his command staff to review procedures for executing search warrants.

Attorney General Lynch also stands behind the state police.

He says their testimony was honest.

“Jurors have different perspectives,” Lynch says. “Obviously from the verdict as a whole, they struggled with different counts but came back and agreed on some and for that I’m grateful.”

Yet isn’t it stunning when juror Reese writes a letter to the editor saying jurors couldn’t believe the testimony of any state police officer?

Lynch says, “Obviously, again, he struggled with the testimony that he heard but he was one of the entire body who in spite of struggling still came back with convictions.”

Lynch says that’s a commentary on the “extreme nature of the unfortunate response” of the Narragansetts.

He adds, “I’ve never backed away from the advice I gave the governor, nor would I ever. The only thing that I regret in looking back on it is the timing.”

He says the raid should have happened sooner and without warning. Maybe so, but I tried to draw Lynch back to the main point at hand: How does he feel when a juror reports the jury couldn’t trust the testimony of 13 members of the state police?

“That’s the beauty of our system,” Lynch says. “Our system is the greatest legal system on the face of the planet, but it’s an imperfect one where different people with different perspectives … make decisions. While I disagree wholeheartedly with the writing by that gentleman … I still congratulate him for serving and for the verdict that he rendered.”

What of comments by juror John Cassidy, a former Marine, that the raid was an awful “attack” by the police, that he didn’t believe the testimony of most troopers, and that jurors cleared the Narragansetts of resisting-arrest charges because of “deplorable” police violence?

Lynch says, “Again, people have different perspectives. He struggled with it. … Obviously they didn’t have an understanding or an appreciation of, in my estimation, what resisting arrest is, and the difficult challenges that law enforcement face when they respond. And they found not guilty…. While I disagree wholeheartedly with that decision, I congratulate them for their service.”

Lynch press aide Mike Healey contends the chances of winning convictions on the charges of resisting arrest would have increased if Judge Susan McGuirl had allowed Chief Sachem Thomas to be cross-examined about militant-sounding quotes he made before and just after the raid.

Healey says, “The jury could only deal with what was put in front of them.”

Well, that’s true, but the defense side could make the same observation.

Finally, about the matter of not charging any troopers:

In the weeks following the raid, an internal state police inquiry found that troopers “acted appropriately” with “the lowest level of force.”

When the report was released on Aug. 1, 2003, Lynch embraced it and said, “I commend the men and women of the state police who did their jobs as well as they did under extremely difficult circumstances.”

He said last week that this is still his view.

He said that his office never considered charging any troopers. “We made a review of the circumstances. There was no reason to [bring charges]. There was no basis to.”

M. Charles Bakst is The Journal’s political columnist.

mbakst@projo.com