38 Studios Investigation Closed; Different Explanations Offered

Feb 3, 2017

Kilmartin, left, with former State Police Col. Steven O'Donnell last year.
Credit Ian Donnis/File Photo / RIPR

Attorney General Peter Kilmartin said Friday the investigation into 38 Studios is now closed, although he had hoped to reactivate it and was rebuffed by State Police Col. Ann Assumpico. But Assumpico said there is not persuasive enough evidence to continue the probe at this time.

“Yesterday, I had our assigned prosecutor reach out to the lead investigator for the State Police, who informed our prosecutor that he was under orders not to further investigate 38 Studios 'until the Attorney General called the Colonel directly,' " Kilmartin said in a statement. "I did so, and for the first time, Colonel Assumpico informed me that she considered the investigation closed, that she would commit no further resources to it, and that her decision was final."

In a statement, Assumpico said she does not plan to reopen the criminal investigation into 38 Studios unless new evidence is uncovered that would warrant a reopening of the case.

“In my view, the case is closed," she said. "If presented with new evidence or leads, I will direct the State Police to reopen the criminal investigation. That is exactly what I told the Attorney General when we spoke yesterday.”

Governor Gina Raimondo's communications director, Michael Raia, said Raimondo did not direct Assumpico to take any particular course with the investigation.

Kilmartin said he talked with Assumpico weeks ago about his "belief that additional investigation should include a review of all of the remaining documents resulting from the civil litigation, and potentially compelling certain live witness testimony."

“Without the investigative resources of the State Police, however, it is fruitless to pursue these paths alone," he continued. "Therefore, as of this date, the criminal investigation of the 38 Studios scandal is closed."

But Assumpico said, “The criminal investigation into this case ended more than a year and a half ago, with no criminal charges resulting. When I met with the Attorney General yesterday, I told him I would be willing to reopen the investigation if we had new, solid, credible leads. The information the Attorney General’s Office has provided to us is not persuasive enough to reopen the case at this time.”

“Rhode Islanders are rightly angry over 38 Studios and I share the view with many people in the state that the public has the right to know what happened,” Assumpico said. She said she “whole-heartedly” disagreed with the attorney general’s assertions that refusing to reopen the criminal investigation, even though there is insufficient evidence to do so, would create the public perception of a cover-up.

Kilmartin and Assumpico's predecessor, Steven O'Donnell, announced last July that a criminal investigation of 38 Studios had failed to produce any criminal charges. The case remained formally open at the time.

The final defendant in the state's lawsuit over 38 Studios, formerly known as First Southwest, reached an agreement, it was announced this week, to take part in a settlement. That led Governor Gina Raimondo to say she was ready to call for the release of grand jury materials from the 38 Studios investigation.

In her statement, Assumpico cited "great public interest in the findings of the criminal investigation. To delay the case any longer by examining thousands of pages of documents from the most recent civil case would delay the conclusion of this case with little expectation of revealing any new information."

“Rhode Islanders are rightly angry over 38 Studios and I share the view with many people in the state that the public has the right to know what happened,” Assumpico said.

When it comes to the potential release of investigative documents, court spokesman Craig Berke said any request involving a grand jury investigation would go in the form of a petition to Superior Court Presiding Justice Alice Gibney. Raia said Governor Raimondo will petition the court for the release of the documents "as soon as the settlement with First Southwest is approved." A hearing on that is expected on Thursday, February 9.

Kilmartin offered this comment on the matter of the documents:

"With the investigation closed, I remain greatly concerned about setting the precedent of releasing investigative records regarding a criminal investigation that thus far resulted in no criminal charges and for which the Statute of Limitations has not tolled. In this case, extensive documentation derived from the civil litigation has already told the public much of the story of the 38 Studios legislation and loan process.

“As Attorney General, I have an obligation to prosecute those who break the law, but I also have an obligation to adhere to my professional responsibility to respect the rights of all citizens, including witnesses, and the rights of those investigated, but against whom no charges have been filed.  I am also very concerned that the release of information, especially the names and statements of cooperating witnesses, will chill the willingness of witnesses to come forward to law enforcement in the future, particularly in cases of public corruption."

“The State Police will now reach their own conclusion regarding the release of documents, and our Civil Division will notify the parties to the pending APRA [Access to Public Records Act] litigation of today’s developments.”

Assumpico closed her statement with this:

“My tenure as Superintendent at the Rhode Island State Police may be in its early stages, but I can promise you that my administration stands for honesty, integrity and transparency. There will not be, and has never has been, any cover-up of this investigation or unnecessary delay in its resolution.”

“The Rhode Island State Police stands ready to reopen the 38 Studios criminal case when or if new evidence presents itself. In my opinion, this degree of evidence has not been established at this time. The status of the 38 Studios investigation will remain closed."