By JONAH LOSSIAH
One Feather Staff
The pre-trial of Benjamin Cody Long continued Monday, July 26 to resolve an issue between the defense and the Eastern Band of Cherokee Indians (EBCI) Office of the Attorney General.
The representation for Cody Long is Brent Smith and Robert Saunooke. Cody White and Shelli Buckner represent the prosecutors in this case, and Chris Siewers was present from the Office of the Attorney General. Chief Judge Monty Beck is hearing this case.
The defense, through Saunooke, had signed off on two subpoenas to the witnesses used in the case against Long. Saunooke said that he wished for these to be ordered from Tribal Court to have a deposition interview with each of these witnesses prior to trial, which is currently set for Monday, Aug. 9.
What was previously misunderstood as a motion to quash from the Office of the Attorney General (AG) was a statement saying that the defense did not have a right to depose these individuals. Siewers said that the AG’s office would be representing the individuals involved as Tribal employees.
Saunooke referenced to Chapter 15-7 of the Cherokee Code, which states ‘The Eastern Band of Cherokee Indians adopts all the protections afforded in Title 25, Chapter 15 of the United States Code, as amended.’ He argued that under the code, as well as the Tribe’s adoption of all protections under the Indian Civil Rights Act of 1968 (ICRA), that the Tribal Court clearly had the authority to grant the right to the defense to depose witnesses prior to trial. He stated that because the EBCI has not made specific clarification for right to deposition, that they Court should look to the Federal rules for proceedings and err of the side of the defendant.
Siewers began by clarifying that this was not a motion to quash, and if a motion was being offered it would be a ‘motion to compel’ from the defense to call upon the court to order these subpoenas. He said that for the sake of expediency, he would consider Saunooke’s argument for these depositions a verbal motion. Siewers then proceeded to make his case against allowing the depositions.
He stated that Tribal Court has never offered the right to depose witnesses pre-trial and has not used federal rules for criminal proceedings. He also argued that even if the Court deemed this to be the case, the Federal rules for deposition state that there must be an ‘exceptional circumstance’ for doing so. Siewers said that simply being a defendant who potentially faces jail time is not an exceptional circumstance and then demonstrated several instances where such a ruling has been used. He said that the most common reason for granting a deposition pre-trial has to do with a fear that the witness will not make it to trial, whether that be for fleeing or health risks.
Judge Beck questioned Saunooke’s assurance that the Court had the authority to issue these subpoenas, stating that nowhere in the Tribal Code does it directly state that authority. Saunooke argued that “silence is not the omission of anything,” and just because the Code does not directly grant the power, that does not mean that there inherently is no right to deposition.
Beck also said that the defense did not follow procedure when issuing these subpoenas, stating that they did not bring a motion to do so. Saunooke said that the defense researched the decision and was trying to follow all guidelines.
Saunooke said that by not allowing deposition, the Court would be limiting the rights of his client. He said that without a sworn testimony, there was no way to get valid information from the witnesses they would be seeing in trial. He said that they could lie or refuse to offer anything prior to trial, and that his client has a right to face his accusers.
After nearly an hour, Saunooke stated that the discussion was gaining little ground, and that he simply wished to hear a decision from Judge Beck, and they would deal with the rest in trial.
Judge Beck once again pointed to the fact that Tribal Council has not clearly stated that the Court has the authority to offer the right of deposition to the defense. He said that he would be treating this situation as a motion to compel from the defense, which he would be denying.
There is set to be one more hearing before the scheduled trial on Aug. 9. The parties will reconvene at 10 a.m. on Monday, Aug. 2 to discuss the exhibits of trial with Judge Beck.
Long was arraigned and detained in December 2019 following a cyberattack on the tribal network. This attack shut down most tribal operations for several months, leading to a lengthy and postponement-heavy trial.
The week following the attack, tribal prosecutors brought forth two felony charges against Long, as well as seven other charges in January 2020.
On Wednesday, Feb. 17, 2021, those felony charges were dismissed including 19 CR 4505 Felony Tampering with Public Records (In violation of Section 14-70.12(a)(3)) and 19 CR 4606 Felony Obstructing Government Functions (In violation of Section 14-70.14 (a)(2)).