Published On: Wed, Jul 14th, 2021

Long hearing continues; motion to dismiss denied

 

By JONAH LOSSIAH

One Feather Staff

 

There will be one final hearing in the case of Benjamin Cody Long before heading to trial. That trial date is tentatively set for Monday, Aug. 9.

This final pre-trial hearing was set for Wednesday, July 14, but after a short consultation was continued to Monday, July 26. The issue stemmed from a motion to quash presented by the Eastern Band of Cherokee Indians’ Office of the Attorney General. The representative from the Attorney General’s office was not present at Court, and after a phone conversation with Attorney General Michael McConnell, it was agreed to shift the hearing to July 26.

Chief Judge Monty Beck offered some resistance on the move to continue the pre-trial before eventually conceding. He said the Court needed assurance that this move would not affect the date of the trial in August, as the Long case has been given priority.

Brent Smith, the defendant’s attorney, insisted that they would be able to accomplish the business they needed to in the two weeks between July 26 and August 9. Smith said that the primary work would be the dispositions of two individuals, and that more of the work for the trial could be done at the July 26 hearing following the motion to quash.

Smith also said that the defense would be working with Robert Saunooke as a co-counsel moving forward.

Once all parties agreed on the new hearing date, Smith then requested that his motion for dismissal be heard the same day. Judge Beck said that hearing this motion required more discussion, and that he needed to hear the arguments for offering this hearing to the defense. He stated that the motion for dismissal seemed more like a request for a probable cause hearing. This is something Smith pushed back against, but was willing to use that language if they would hear the motion.

Just this week, Smith submitted this motion for dismissal, arguing that the probable cause for the charges was in question and deserved to be addressed. The Long’s attorney felt that with information that is being presented since the original charges, that the probable cause no longer holds. Smith cited that after a year of investigation, Tribal prosecutors dismissed the two major charges associated with the cyberattack case from December 5.

Smith said that they should be granted a hearing under Rule 7 (d)(2) in Chapter 15 of the Cherokee Code. He argued that his motion addressed these aspects of the code:

  1. ‘Motions That Must Be Made Before Trial. The following must be raised before trial or are subject to waiver:
  2. A Motion alleging a defect in instituting the prosecution.
  3. A Motion alleging a defect in the Warrant or Summons, but at any time while the case is pending, the Court may hear a claim that the Court does not have jurisdiction or that the charge does not state an offense.

He also argued that this motion would fall under his client’s right to due process under the Indian Civil Rights Act.

Cody White , EBCI Office of the Tribal Prosecutor,  argued that this motion for dismissal was more so a request for a probable cause hearing, and that there is no entitlement to such in the Cherokee Code or the Indian Civil Rights Act. White said that if a probable cause hearing was granted at this point in the pre-trial, that it would continue to complicate all of their cases moving forward. He said that the aspects that Smith was arguing against would be discussed in the trial itself. White said that using this logic, Tribal prosecutors might have to hear every one of their cases twice.

Judge Beck pushed Smith for evidence for his claims that the warrant process was defective. There was a lengthy discussion on the original aspects of the charges against Long. Beck disregarded most of Smith’s arguments that included newer evidence, stating that he has to make a decision on this hearing based on the original and remaining charges of the case.

After nearly 40 minutes of discussion, Chief Judge Monty Beck denied setting a hearing for the defense’s motion for dismissal. He referenced that the United States Supreme Court deemed that you do not have entitlement to a probable cause hearing, and that nowhere in Cherokee Tribal Code or the Indian Civil Rights Act does it state that entitlement either. Judge Beck said that he does not believe the charging document is defective, and so this motion would not be heard on July 26.

Before finishing business on this case, details were solidified for the last pre-trial hearing. It was requested by the prosecutors and the defense that Judge Beck be available to hear their list of exhibits that they wished to use for trial. They stated that this would help finalize their cases and make sure that all the exhibits they wished to use would be accepted by the judge. For example, the prosecutors have several pieces of digital evidence they wish to use. Smith stated he would raise objection to all of those.. After some clarification on times, Judge Beck agreed to hear them out following the motion to quash from the Attorney General’s office.

The final pre-trial date of Benjamin Cody Long will take place on Monday, July 26 at 2 p.m. If there are no other issues, the jury trial is expected to be set for Monday, Aug. 9.

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)).

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