Kilmartin asks court to block release of 38 Studios docs

PROVIDENCE, R.I. (WPRI) – Attorney General Peter Kilmartin hit back at Gov. Gina Raimondo in court on Tuesday, arguing a judge should not unseal material presented before a grand jury during the criminal investigation into the failed 38 Studios deal.

Raimondo petitioned for release of the material in February, following the conclusion of the state’s civil lawsuit over 38 Studios, the video-game company founded by Curt Schilling that went bankrupt after receiving a $75-million state-backed loan.

Raimondo has argued that while grand-jury secrecy usually means such material should remain under wraps, the “extraordinary public interest” in the 38 Studios saga is sufficient reason for R.I. Superior Court Presiding Justice Alice Gibney to order the documents released.

But in a 29-page filing Tuesday, Kilmartin’s lawyers argued Raimondo had only made “meager and legally insufficient arguments” in favor of her “extraordinary request.” They suggested the governor “does not appreciate the methods of the grand jury,” whereas attorneys general have “been involved in every grand jury convened in this state since it was colonized.”

“The governor’s ‘transparency’ based argument is squarely at odds with the centuries of precedent protecting the grand jury and its process,” they wrote. “The governor’s petition and public statements have done nothing but fuel misguided speculation about the grand jury process, undermine its integrity, and cast a negative light on the entire process.”

The filing goes on to detail the history of grand juries as far back as their use in England in the 1600s. Its citations reference Soviet spies and Watergate, as well as a 1917 ruling in Rhode Island federal court that held the defunct Providence Tribune newspaper in contempt for publishing details about a grand jury proceeding.

“The public’s right to full disclosure and the public’s interest in transparency does not outweigh witnesses’ right to secrecy,” Kilmartin’s attorneys wrote.

They also pushed back at two examples of materials from a grand jury being released in recent years, regarding the fatal shooting of off-duty Providence Police Sgt. Cornel Young Jr. and the Station nightclub fire, saying those circumstances were different – including the fact that those cases “were investigated fully.”

The attorneys did acknowledge that courts have allowed the release of material from a grand jury due to an “exceptional circumstance” before, but said that exception has never been invoked in Rhode Island and should not be used now.

“While recognizing that this matter is significant, the importance of the grand jury and its process are monumental,” they wrote.

Raimondo and Kilmartin, both Democrats, have clashed over 38 Studios repeatedly in recent months, and not just over the grand-jury documents. The attorney general also criticized R.I. State Police Col. Ann Assumpico, a Raimondo hire, for closing the criminal investigation – although her predecessor joined Kilmartin last year to announce no charges would be filed following the lengthy probe.

In Tuesday’s filing, Kilmartin’s lawyers said the grand jury never took a vote on potentially bringing charges over 38 Studios, and also said the likely 10-year statute of limitations for any potential crime has not yet run out. They also said some examples of grand-jury material being released only happened decades later, not this soon.

Kilmartin is barred by term limits from seeking a second term, but has indicated he could decide to run for a different office next year. Raimondo is up for re-election in 2018, and has highlighted her push to unseal the 38 Studios grand-jury documents when criticized for breaking a campaign promise to order an independent investigation into the deal.

Kilmartin’s filing appears to take a veiled shot at Raimondo over the latter decision, suggesting, “If the governor is seeking further information or more answers she can form her own inquiry.”

Kilmartin’s opposition to releasing the grand-jury material has left him politically isolated. The R.I. House of Representatives voted last month to require the release of “any investigative records generated or obtained” during the 38 Studios probe, with some exceptions. The Senate has taken no action on the bill.

Ted Nesi (tnesi@wpri.com) covers politics and the economy for WPRI.com. He writes Nesi’s Notes on Saturdays and hosts Executive Suite. Follow him on Twitter, Facebook and Instagram

An earlier version of this story noted Kilmartin’s brief is far longer than the governor’s original three-page petition; however, the governor’s office has separately filed a lengthier memo outlining its arguments in more detail.