![[William H. Buckman]](../images/whb.gif){kind=small}
William H. Buckman Law Firm
Phone: 856-608-9797 / Fax: 856-608-6244
SUPERIOR COURT OF NEW JERSEY
Appellate Division ____________________________ : DOCKET No. A-5334-95T3
STATE OF NEW JERSEY, :
Plaintiff, appellant, :
V. : Criminal Action
: On Leave To Appeal An Interlocutory
PEDRO SOTO, ET. AL., : Order Of The Superior Court Of
Defendant-Respondents. : New Jersey, Law Division,
: Gloucester County. ________________________ :
Sat Below:
Hon. Robert E. Francis, J.S.C.
Brief On Behalf Of Defendants DaCosta, Jackson, Lockhart And Monroe
WILLIAM H. BUCKMAN
Attorney for DaCosta, Lockhart and Monroe
714 E. Main St., Suite 1B
Moorestown, New Jersey 08057
(609) 608-9797
Of Counsel and On The Brief
JUSTIN LOUGHRY
Attorney for Jackson
20 Brace Rd.
Cherry Hill, New Jersey 08034
(609) 616-2252
Of Counsel and On The Brief Defendants Are Not Confined
PROCEDURAL HISTORY ........................... 1
PRELIMINARY STATEMENT......................... 2
COUNTER STATEMENT OF FACTS ................... 7
I. Introduction ......................... 7
A. State Police Structure And Organization 7
B. Public Allegations Of Racial Profiling 9
II. Statistical Analysis ................ 17
A. Creation Of An Appropriate Data Base Of
State Police Stop Data ............ 17
B. Analysis Of The Relevant Motoring And
Violator Populations .............. 19
C. Comparison Of Stop Data With Population Data 23
D. Missing Data Analysis 25
E. Increased Trooper Discretion Produced
Dramatically Increased Percentages Of Black
Stops ............................. 26
F. State's Statistical Analyses ........ 28
1. Dr. Cupingood 28
2. Cupingood's Three Studies Of Supposedly
Race Blind Stops .................. 29
a. Night Stops ............... 30
b. Radar Tickets ............. 31
c. DUI Calls For Service ..... 32
3. Profile Analysis ............... 35
4. Mantel-Haentzel Analysis ....... 38
5. Dr Cupingood's Concession Concerning
The Appropriate Benchmark ......... 42
6. Testimony In Prior Cases ....... 45
III. Non-Statistical Evidence Of Discriminatory Purpose 46
A. The Profile And Its Operation ....... 46
B. State Police Training And Other Materials 56
C. Profiling And The Drug Interdiction Unit 62
D. Expert Corroboration Of Effect And Purpose 75
E. Surrebuttal Corroboration Of A Profile 81
LEGAL ARGUMENT...................................... 84
Point I
The Defendants Met The Correct Burden Of Proof In
Establishing That They Were Victims Of Racially
Motivated Selective Enforcement................ 84
A. The Prima Facie Standard Is The Appropriate
Burden For Selective Prosecution Claimants 85
B. Statistics Alone Can Establish A Prima Facie
Case Although Evidence Can Be Drawn From The
"Totality Of The Circumstances.............. 91
C. The Trial Court Correctly Found That Presen-
tation Of A Prima Facie Case Of Selective Enforce-
ment Required The State To Credibly Rebut The Prima
Facie Case.................................... 96
Point II
The Credible Evidence Clearly And Convincingly
Established The Selective Enforcement Criteria Of Discriminatory Effect And Purpose.................. 105
A. The Statistical Evidence Alone Proven
Discriminatory Effect And Purpose............. 107
B. The Credible Direct And Circumstantial Non-
Statistical Evidence Likewise Proved
Discriminatory Effect And Purpose............ 135
Point III
State Constitutional Law And New Jersey's Commitment
To Eliminate Racism Require Suppression On The
Showing Made Below Without Individual Hearings..... 148
A. State v. Marshall Rejected McClesky V. Kemp
As A Matter Of State Constitutional Law And
Indicates Suppression......................... 148
B. Suppression Without Individual Hearings Is
Essential To Vindicate This State's Policy
Of Eliminating Racism......................... 154
Point IV
The Trial Court's Refusal to Admit The Department
Of Transportation Speed Monitoring Reports Was
A Proper Exercise Of Discretion.................... 160
CONCLUSION.............................................. 165
TABLE OF CASES
PAGE NOS.
Barnes v. Yellow Freight Systems Inc., 778 F.2d. 1096 (5th Cir. 1985) 144
Batson v. Kentucky, 476 U.S. 79 (1986) passim
Bazemore v. Friday, 478 U.S. 385, 106 S.Ct. 3000,
92 L.Ed. 315 (1986) passim
Carreras v. State, 936 S.W. 2d 727
(Texas App. 1996) 90
Castaneda v. Partida, 430 U.S. 460, 97 S.Ct.
1272 (1977) passim
City of Canton Ohio v. Harris, 489 U.S. 378, 109
S.Ct. 1197 (1989) 146
Commonwealth v. Van Wells, 657 A.2d. 507 (Pa. Super 1995) 90
County of Middlesex v. Clean Water Village.Inc.,
163 N.J. Super 166, 394 A.2d. 390 131
(App. Div. 1978)
Dixon v Amrgolis. 765 F.Supp. 454 (N.D. Ill.1991) 147
Dixon v. Rutgers, 541 A.2d. 1046, 110 N.J. 432
(1989) 91, 155
Doe v. Barrington, 729 F.Supp. 376 (D.N.J. 1990) 147
Federov v. United States, 600 A.2d 370
(D.C. App. 1991) 101
Fuchilla v. Layman, 109 N.J. 319, 537 A.2d 652 2, 155
(1988)
Hunter v. Underwood, 471 U.S 222 (1985) passim
Johnson v. Salem Corp., 97 N.J. 78, 477 A.2d 1246
(1984) 131
Jones v. White, 992 F.2d. 1548 (11th Cir. 1993)
cert denied 510 U.S. 1059 (1994) 89
(iv)
McClesky v. Kemp, 481 U.S. 279, 107 S.Ct. 1756
(1987) passim
Matter of Yaccarino, 117 N.J. 175, 564 A.2nd 1184
(1989) 131
Monnell v. Department of Social Services of City of New York, 436 U.S. 658, 98 S.Ct 2018 (1978) 146
Myrlak v. Port Authority of New York and New Jersey, 694 A.2d. 575, 302 N.J. Super. 1
(App. Div. 1997) 131
New York v. Belton, 453 U.S. 454 (1980) 152
Norris v. Alabama, 294 U.S 587 (1935) 160
Owens v. Haas, 601 F2d. 1242 (2d. Cir. 1979),
cert. denied 444 U.S. 980 (1979) 146
Oyler v. Boles, 368 U.S. 448 (1962) 85
People in Interest of W.Y.B.. 515 N.W. 2d. 453
(S.D. 1994) 90
Rova Farms Resort v. Investors Ins. Co.,
65 N.J. 474 (1974) 106
Saint Mary's Honor Center v. Hicks, 509 U.S. 502,
113 S. Ct. 2742 (1993) 104
Segar v. Smith, 738 F.2d. 1249 (D.C. Cir. 1984) 144
Spell v. McDaniel, 591 F. Supp. 1090,(E.D. N..Carolina 1984),aff'd in relevant part, 824 F. 2d 1380 (4th Cir. 1987), cert. den., 484 U.S.1027 (1988) 145
State v. Alston, 88 NJ. 211 (1981) 153
State v. Barman, 515 N.W.2d 493 (Wis. App. 1994) 102
State v. Bruzzese, 463 A.2d. 320, 94 N.J. 210 (1983) 91, 154, 158
State v. Clawans, 38 N.J. 162, 170 (1962) 117, 139
State v. DiFrisco, 118 N.J. 253 571 A.2d. 914
(1990) 88
State v. Ernst, 32 N.J. 567 (1960) 125, 146
State v. Geer, 756 P.2d 1 (Utah App.1989) 102
State v. Gilmore, 103 N.J. 508, 511 A.2d 1155 (1986) 88, 139, 160
State v. Hemple, 120 N.J. 182 (1990) 152
State v. Honore, 564 So.2d. 345, (La. App),
cert.denied 569 So.2d. 968(1990) 90
State v. Hunt, 91 N.J 338( 1992) 152
State v. Hyland, 431 N.W. 2d. 868 (Minn. 1988) 90
State v. Johnson, 68 N.J. 349 (1975) 150, 152
State v. Johnson, 42 N.J. 146 (1964) 106
State v. Jones, 104 N.J. Super 57, 248 A.2d. 554 (App. Div. 1968),
cert. denied. 53 N.J. 354, 250 A.2d. 755 (1993) 106, 143
State v. Kennedy, 588 A.2d 834, 247 N.J. Super. 21
(App.Div 1991) passim
State v. Kuhn, 517 A.2d 162, 213 N.J. Super. 275
(App. Div. 1986) 92
State v. Letts, 603 A. 2d. 562, 254 N.J. Super. 390
(Law Div. 1992) 92
State v. Lewis, 67 N.J. 47 (1975) 118
State v. Marshall, 130 N.J. 109, 613 A.2d. 1059
(1992) passim
State v. Muniz, 150 N.J. Super 436 (App. Div. 1977) 146
State v. Novembrino, 105 N.J. 95 (1987) 152, 158
State v. Pierce, 136 N.J. 184 (1994) 152, 153, 154
State v. Ramseur, 524 A.2d 236, 106 N.J. 123 (1987) 112, 115
State v. Russell. 343 N.W. 2d. 36 (Minn. 1988) 90
State v. Russo, 213 N.J. Super. 219 (L.Div. 1986) 118
State v. Smith, 134 N.J. 599 (1994) 152, 153
State v. Staples, 263 N.J. Super. 602 A.2d 791 (1993) 106, 143
State v. Valencia, 93 N.J. 126 (1983)
State v. Zaccaro, 154 Vt. 83, 574A.2d. 1256 (1990) 90
Swint v. City of Wadley, Alabama, 51 F 3d. 988
(11th Cir. 1995) 107
Texas Dept. Of Community Affairs v. Burdine,
450 U.S. 248, 101 S.Ct. 2742 (1981) 104
Thompson v. City of L.A., 885 F.2d. 1439 (9th Cir. 1989) 147
Todd v. Sheridan, 268 N.J. Super 387 (App. Div. 1993) 131, 143
Turner v. Fouche, 396 U.S. 346, 24 L.Ed.2d. 567 (1970) 133
Turpin v. Mailet, 619 F.2d. 196 147
United States v. Armstrong, U.S. , 116 S.Ct. 1480 (1996) passim
United States v. Bauer, 84 F.3d. 1549 (9th Cir.)
cert. denied 117 S.Ct. 267 (1996) 89
United States v. Bell, 86 F.3d. 820 (8th Cir.)
cert. den., 117 S.Ct. 372, 136 L.Ed.2d. 262 (1996) passim
United States v. Bell, 113 F.3d. 1345 (3rd Cir. 1997) 89
United States v. Brown, 9 F.3d. 1374
(8th Cir. 1993) cert. denied, 1145.Ct.
1568, 128 L.Ed.2d. 213 (1994) 108
United States v. Chemical Foundation, 272 U.S. 1, 47 S.Ct. 1 (1926) 86
United States v. Collins, 972 F.2d. 1385
(5th Cir.1992), cert. denied, 507 U.S. 1017 (1993) 91
United States v. Crothers, 456 F.2d 1074 (4th Cir. 1972) 102
United States v. Cyprion, 23 F3d. 1189 (7th Cir.)
cert. denied 1155.Ct 211 (1994) 89
United States v. Estrada-Plata, 57 F.3d. 757 (9th Cir.1995) 89
United States v. Guiterrez, 990 F.2d. 472 (9th Cir. 1993) 89
United States v. Huff, 959 F.2d. 731
(8th Cir. 1992), cert. denied. 506 U.S. 855 (1993) 90
United States v. Mullins, 22 F.3d. 1365 (6th Cir. 1994) 89
United States v. Olvis, 97 F.3d. 739 (4th Cir. 1996) 107
United States v. Peete, 919 F.2d. 1168 (6th Cir. 1990) 90
United States v. Penagaricano-Soler, 911 F.2d 833
(1st Cir. 1990) 101
United States v. Redondo-Lemos,955 F.2d. 1296
(9th Cir. 1992) 102
United States v. Sparks,2 F.3d. 574(5th Cir. 1993) 90
United States v. White,972 F.2d 16(2nd Cir. 1992) 90
Whren v. United States ,____U.S.____, 116 S.Ct. 1769(1996) 86
Village of Arlington Heiehts v. Metropolitan Housing Development, 429 U.S. 252, 97 S.Ct. 555 (1977) passim
Wards Cove Packing Company v. Atonio, 490 U.S.
642, 109 S.Ct. 2115 (1989) 110, 132
Washington v. Davis, 426 U.S. 229, 96 S.Ct. 2040(1976) passim
Watson v. National Linen Service, 686 F.2d. 877(11th Cir. 1992) 115
Wayte v. United States, 470 U.S. 598, 105 S.Ct.1524(1985) passim
Whitus v. Georgia, 385 U.S. 545 (1967) 109, 111
Wilson v. Chicago, 707 F. Supp. 376 (N.D. Ill. 1989) 147
Yick Wo v. Hopkins, 118 U.S. 356, 6 S.Ct. 1704 (1886) 86
Constitutional Provisions Cited
N.J. Const. (1947) Art. I par. 1 148
N.J. Const. (1947) Art. I par. 7 148
Statutes Cited
N.J.S.A. 10:5-3 155
42 U.S.C. 2000(e) to 2000(e)-17 88
Rules Of Evidence Cited
N.J.R.E. 702 130
STATEMENT OF PROCEDURAL HISTORY
The instant matter consists of 11 separate indictments comprising the cases of 17 defendants all of whom are African American. The matters were consolidated to allow a joint presentation of their motions to suppress brought under the due process and equal protection provisions of the New Jersey and United States constitutions. All of the consolidated motions to suppress asserted that the defendants were targeted for stop and search on the New Jersey Turnpike in Gloucester County because the New Jersey State Police had a racially based profile in effect during the time in question. (Pa 33-37)(1) A consolidated consent order for discovery was entered on February 27, 1992 (Pa 33-37)
The plenary hearing on the motion to suppress was conducted by the Honorable Robert E. Francis, J.S.C. from November 28, 1994 until May 25, 1995 spaning 72 trial days. (1T to 72T)(2) Closing arguments on the consolidated motion were heard on November 11, 1995. On March 4, 1996 Judge Francis issued an unpublished opinion granting the consolidated motion to suppress. (Pa 1-16) Argument on the form of the order occurred on April 2, 1996 with a final order being entered on April 17, 1996. (Pa 21-24) Thereafter the State sought and obtained leave to appeal. (Pa 74)
PRELIMINARY STATEMENT
"[Eradication of the cancer of discrimination has long been one of New Jersey's highest priorities." Fuchilla v. Layman, 109 N.J. 319, 334, cert. denied, 488 U.S. 826 (1988). Yet from January 1988 to April 1991 the New Jersey State Police engaged in a program of racial targeting on the New Jersey Turnpike.(3) The opinion below is of the utmost importance to all citizens traveling on the New Jersey Turnpike, especially minority citizens and, indeed to minority communities throughout the region. The decision results from overwhelming proof of an established pattern and practice of abridgement of the rights of African American travelers by the New Jersey State Police Troop D stationed at the Moorestown Station.
The Court found that the practice was tolerated and in certain ways encouraged at the highest levels in the State Policy hierarchy, including then State Police Superintendent Clinton Pagano. The Court's suppression remedy does not have the unintended effect of "chilling" proper police activities; the opinion fulfills the need to eradicate the cancer of racism and "To deter future insolence in office of those charged with enforcement of the law." State v. Kennedy, 247 N.J. Super. 21 (App. Div. 1991).
Judge Francis' opinion resulted from painstaking analysis of seventy-two days of testimony, which produced overwhelming statistical and non-statistical evidence that compelled the Court's findings. Far from establishing a "stop quota", as alleged by the State, Judge Francis accepted the testimony of the State Police witnesses called by the Attorney General that African Americans drive no differently than members of other racial groups.(4) (Pa 6) In light of unsurprising similarities of driving ability and behavior among races and ethnic groups, the Court acted on the unrefuted statistical findings that a black was 4.85 times as likely as a non-black to be stopped(5) by troopers. The Court correctly concluded that the State Police used the motor vehi1cle code to selectively stop African Americans for search and arrest and found those purposes plainly evident in State Police testimony, materials, statistics and programs.
One such program was the creation in 1987 of the Drug Interdiction Training Unit (hereinafter referred to as "DITU"). The purpose of this unit was to train troopers in how to interdict drugs. An evaluation of a trooper by Drug Interdiction Training Unit(6) instructor Geleta reads as follows:
"Trooper Fash previously had DITU training, and it showed in the way he worked. He has become a little reluctant to stop cars in lieu [sic] of the Channel 9 News Report. He was told as long as he uses Title 39 he can stop any car he wants. He enjoys DITU and would like to ride again." (Da-65)
The "Channel 9 News Report" mentioned in the above quote was entitled "Without Just Cause". It charged the State Police with discrimination by stopping blacks to search their cars. This caused concern at the highest levels of the State Police hierarchy, including Colonel Pagano who ordered that the series be shown to all the troopers followed by a videotaped speech from him, telling them to "keep the heat on" (P69A) and
"... [H]ere at Division Headquarters we'll make sure that when the wheels start to squeak, we'll do whatever we can to make sure that you're supported out in the field ... . Anything that goes toward implementing the Drug Reform Act is important. And, we'll handle the squeaky wheels here." (P69A)
Absent from Colonel Pagano's speech was any hint that the WOR series' allegations would be considered by the State Police. Colonel Pagano went on to denigrate personally a black lawyer and a black high school principal who had complained about improper searches. (P69A)
Pagano's speech and the documented training instructions such as trainer Geleta's admonition to use the Motor Vehicle Code to "stop any car [a trooper] wants", serves as a window on how racial profiling was condoned and even encouraged. Pagano's video taped speech in response to outcries for investigation of State Policy practices serves as a window of how racial profiling was nurtured to emphasize the suspectness of blacks.
The record, as a whole, contains overwhelming "non-statistical" evidence showing the existence of the racial profiling scheme within the New Jersey State Police, making race a trigger for State Police stops. For example, former troopers testified to its employment and its proliferation; training materials articulated its premises; specific examples illustrated the pretextual misuse of some marginal traffic violation; testimony from a young black professional who commuted on the turnpike and suffered approximately one hundred stops without receiving a ticket or a warning over a period of four years; a State Police "training" film which depicted all blacks as potentially dangerous, armed suspects.
The Attorney General's suggestion now that defense statistics were "flawed" is baseless, and unanchored in the record. In a manner specifically endorsed as adequate, customary and usable by the testifying experts, the defense measured: the racial composition of the driver population on the turnpike, the racial composition of persons violating the traffic laws such that they would be subject to stop, and the racial composition of those actually stopped.
Sub-studies consistently corroborated the principal studies' findings: That the black percentage of stops rose with rising levels of State Police officer discretion. In areas tainted by DITU activity black stop percentages were higher still. Many black stops, a majority of them South of Exit 3, do not arise from egregious driving behaviors as conjectured by the State. They do not even result in a traffic citation.(7)
After confronting the powerful defense statistical evidence, the State's expert recommended that the State conduct its own studies. The Attorney General's office ordered that no independent studies be done, even though the State Police had the necessary data and the ability to analyze it. Rather, the State chose to attack the defense evidence by presenting the morally repugnant and factually ridiculous notion that blacks drive in a way to make themselves stand out from other drivers. They then attempted to support this contention with faulty analyses of data couched in statistical terms. Scrutiny of these "analyses" revealed them to be bogus and nothing more than attempts to mislead the Court. The State's own factual witnesses did not support Dr. Cupingood's (State expert) "blacks stand out" hypothesis; indeed seasoned road troopers unanimously told the Court that blacks do not drive differently or worse than whites -- facts that the State's expert did not learn and did not know until informed via cross-examination. Nonetheless, the State clings to its expert's baseless conjectures and net opinions, and parrots them now in its brief. In so doing, the State issues an unwarranted calumny against the trial judge, a judge who did nothing but listen carefully to the evidence and reach conclusions that this evidence fairly compelled.
COUNTER STATEMENT OF FACTS
I. Introduction
A. STATE POLICE STRUCTURE AND ORGANIZATION
State Police Troop D patrols the New Jersey Turnpike, with units at three stations. Relevant to this matter is the Moores-town station which has responsibility for patrol of the Turnpike from its southern terminus at the Delaware Memorial Bridge to exit 7A in the North.(2T 77-14 to 2T 77-19)
The instant matter involves stops made in Gloucester County. All of the consolidated defendants in these matters were stopped by Troopers on an allegation of a motor vehicle violation. All of the searches and seizures took place south of Exit 3 of the Turnpike.
Three different State Police units operated out of the Moorestown Barracks during the time in question. (Pa 5)
Assignment to a particular unit determined the amount of discretion a trooper had with respect to stops. Id. Those units were as follows:
The Radar Unit consisted of a remote van containing radar equipment and an operator. The operator would measure the speed of approaching vehicles with the radar equipment from in-side the van and radio to chase cars that were nearer the roadway a description of the vehicle that they were to stop.(2T 12-16 to 2T 12-21)
The Tactical Patrol Unit ("Tac/Pac") consisted of troopers assigned to patrol cars. They would patrol areas, designated by a superior, because of traffic problems thought to exist there. These areas were high accident or other traffic problem spots. Their primary mission was motor vehicle enforcement.(2T 14-19 to 2T 14-23; 2T 67-7 to 2T 67-13) The description of Tac/Pac by Drug Interdiction Training Unit trainer Cobb while training Trooper William Hughes on February 28, 1989 confirms its role:
Being assigned to TAC-PAC Tpr. Hughes' motivation to actively pursue drug couriers is low. The very nature of TAC-PAC is MV enforcement, and has, historically been an assignment for troopers who fall into the niche of MV enforcement (only)...Must be remembered that TAC-PAC has been strictly MV enforcement. (Da 64)
The third unit operating out of Moorestown were the general patrol troopers. These troopers exercised the most discretion--virtually unbridled--regarding the physical area that they patrolled and the type of motor vehicle stops that they would effectuate. See generally the testimony of Sgt. Gilbert 21T 28 to 56.
There were other specialized units in operation within the State Police during the time period of January 1988 to April 1991. Relevant to this action are the following:
The Drug Interdiction Training Unit ("DITU") was created by order of Col. Pagano in 1987. (27T 167-15 to 27T 169-16; 27T 146-4 to 27T 148-12) The main purpose of this unit was to train troopers in how to interdict drugs on the roadway by sending its trainers around the state to ride with other troopers. (28T 93-7 to 13) DITU members would also meet once a week at various spots around the state considered high in drug traffic to patrol themselves. One such area was south of Exit 3. At the extreme southern end of the Turnpike DITU members would line up watching and stopping traffic as it exited the Delaware Memorial Bridge. (20T 132-5 to 20T 132-25; 19T 30-1 to 19T 32-25) Statistical analyses would indicate that the percentage of Black stops south of Exit 3 would be the highest.
The State Police Analytic Bureau was charged with the function of com-piling and analyzing statistics generated by the activities of the State Police. Pursuant to law and SOP, the State Police have numerous standardized forms on which data is collected. These include Consent To Search Data Forms, Con-sent To Search Forms, Operations Reports, Patrol Logs, Radio Logs, Ticket copies and Warning copies. Most of these reports yield data on the race of stopped motorists. The State Police never attempted to analyze the racial breakdown of the population of the citizens stopped by its members despite the availability of this data with the exception of one limited analysis of drunk driving arrests. (Da 57; Da 39; Da 80)
B. PUBLIC ALLEGATIONS OF RACIAL PROFILING
In the fall of 1989 a New Jersey television station produced a four part investigative series documenting State Police racial profiling on the Turnpike. (P69A) Entitled "Without Just Cause," the series documented the complaints of numerous African American motorists who were stopped, detained and searched by the State Police on the New Jersey Turnpike. Most of the persons who appeared in the series were never charged with an offense. The series made an attempt to measure the racial composition of the minority population on the Turnpike and then compared that statistic to the fact that 76 percent of the arrests on the Turnpike were of Blacks. "Without Just Cause" also featured an anonymous Black Trooper with his/her face and voice digitally disguised who confirmed the existence of a racially based profile.
Then Superintendent Clinton Pagano responded to "Without Just Cause" by commissioning the Analytic Unit of the State Police to do a study, now known as the Pagano Report. (Da 39) The report admits that the State Police were aware of widespread allegations of racial targeting:
Recently, certain members of the media and other public interest groups have accused New Jersey State Police of employing racial targeting in effecting motor vehicle stops, specifically on the I-95/turnpike corridor. (Da 40)
The report also acknowledged that the allegation of racial targeting applied to motor vehicle stops. Id. When interviewed for the TV series Col. Pagano admitted that stop data was essential to verifying the allegation statistically. (Da 69A) Yet Pagano made no attempt to gather and analyze stop data. He testified below that he did not believe it was necessary to capture data on who is stopped and searched to ensure constitutional compliance. (70T 78-10 to 88-11; 70T 117-9 to 121-21) He did nothing to determine the truth of the allegation or to correct the wrongs alleged.
Much of the "Pagano Report" consisted of a section purporting to be a compilation of intelligence gathered or received by the State Police which led them to believe that black people of American, Jamaican, and Nigerian background, and Hispanic people who originate from numerous Latin American countries, are the people bringing drugs into and transporting them through New Jersey. (Da 40-41)
Cross examination of State Police Det. Carl Douglas and Col. Pagano revealed that this "intelligence" was widely disseminated throughout the State Police. (71T 17-13 to 71T 17-20) A major portion of the "training" on the Jamaican Posses was a video Det. Douglas showed. (P-9) This video had been reviewed and approved for training by those in the State Police with authority over training. (17T 78-22; 27T 182-4 to 6) The video, Douglas admitted, was an unsubstantiated and fictionalized presentation intended to impart to trainees that Jamaican Posse members are violent. Without attribution or disclaimer, the "training" film featured scenes from a sensationalized, fictional motion picture entitled "The Harder They Come." (18T 27-1 to 18T 28-8; 18T 30-16 to 18T 33-12; 18T 37-7 to 18T 39-19) One such scene portrayed a Black man slashing another Black man with a knife. Id. Other portions of the training video showed street violence which turned out to be news footage of political rioting in Kingston but nothing to do with drug trafficking. (P-9) The video also showed a likeness of a Black man with dread locks in his hair wearing Jamaican like garb followed by shots of the same black man with short, well groomed hair and business attire. The voice-over warned that Jamaican posse members can disguise themselves to be indistinguishable from a professional black man. Id.
As a further response to "Without Just Cause," Col. Pagano videotaped a message to troopers, and appended it to a video tape of the WOR news broadcast. It was played for the members of the State Police throughout the state. (P69A; 70T 29-18 to 70T 31-19) In his remarks, Col. Pagano recited the nostrum: "When you put on this uniform, you leave your biases and your prejudices behind." However, immediately after this he said "that does not mean that when we put the heat on and we begin arresting the kind of offenders that we have been arresting, that we're not going to get some reverse flow in our direction." (P69A)
Colonel Pagano told the court that he made the tape and the comments to let the members see it so that he could assure them that they should continue their efforts. As Colonel Pagano testified, he had concluded claims of ethnic targeting to be nothing but "alibis" since his earliest days in the New Jersey State Police. He testified that it is up to the Court to deter-mine if the profiling allegations were true. (70T 155-21 to 70T 157-13)
In "Without Just Cause" a Trenton school principal named Jones claimed to have been stopped on the turnpike, threatened, intimidated, and assaulted by a state trooper. In his video response to the troopers Pagano's said: "We know that the teacher assaulted the trooper. He didn't have a driver's license or a registration for his fancy new Mercedes." (71T 55-56 to 71T 59-10) Colonel Pagano did not say why he thought that the middle-aged school official was the assailant rather than the victim. There was no evidence that the principal was convicted for assault.
Pagano also told the members that the arrest of a Baltimore basketball coach for possession of a .22 caliber rifle raised a question in his mind. But he said it was a stolen rifle. Whether that rifle was stolen was unsubstantiated. Col. Pagano never explained to the members or to the Court why that African-American basketball coach's vehicle was searched as a result of a traffic violation. (P69A)
The first African-American New Jersey State Trooper in history, Paul McLemore, was interviewed during "Without Just Cause." McLemore, now a practicing attorney, spoke of discrimination within the ranks of the State Police. (P69A) He showed an obscene racial poster, a caricature of a black person with the heading: "running nigger target. Be careful bullets may ricochet." Id. This apparently was disseminated in the ranks. McLemore argued that if troopers relate to their fellow troopers who are black in such a way, one can only wonder at how they treat minorities among the public. Pagano did not specifically address McLemore's allegations. Rather, Pagano dismissed McLemore as "an ingrate." (71T 67-11 to 71T 67-18; 71T 86-10 to 71T 87-25)
Pagano emphasized to the members that drug interdiction remained "the number one priority" and that they should continue their efforts. He told them to watch "without Just Cause" for their edification, but to get out there and "keep the heat on" drug abusers. He then assured them:
...[H]ere at Division Headquarters we'll make sure that when the wheels start to squeak, we'll do whatever we can to make sure that you're supported out in the field. ...Anything that goes toward implementing the Drug Reform Act is important. And, we'll handle the squeaky wheels here. (P69A)
The Court asked Colonel Pagano if he was aware of any general complaint by blacks or other groups about targeting before the WOR Series aired. Pagano knew of a general complaint by blacks, specifically by the NAACP, but the state police addressed only specific individual complaints. You can't "scatterboard" on every black complaint. "Give me facts and we'll conduct an investigation." (70T 42-22 to 70T 44-7)
The Court then asked the Colonel how a specific claim could prove targeting. Pagano answered, "It wouldn't."(8) (70T 44-18 to 20)
The Court asked Colonel Pagano what he did about the general complaint of targeting before the WOR Series aired? (70T 44-21 to 25) Pagano answered that he did not recall looking into it or seeing any need to. He referred to financial resources. He claimed that he spent over a $100,000 reinvestigating the Lindberg case, which involved allegations against German Americans. (70T 45-4 to 6) The Court again asked him if he did anything about these general claims. He re called that he flew to Deepwater (the southern end of the Turnpike) regularly and had discussions with the commander and detectives, but he did not recall ordering the analysis of any statistics. 70T 46-13 to 19.
The Court questioned Colonel Pagano further as to whether he recalled any study being done as the result of court actions filed in three counties. (70T 118-19 to 119-9) Colonel Pagano answered that if he saw any statistics they were not troubling. (70T 120-18 to 121-1) However, he would not be surprised if Captain Tezsla, the commander of Troop D, looked into it. He would have expected that Tezsla did. (70T 124-8 to 70T 127-13)
Major Al Tezsla, who had been the captain and commander of Troop D from July 1989 to August 1992 (40T 4-16 to 17), offered a different scenario. He thought the Colonel was handling "that matter." Asked how Pagano was handling it Teszla confessed that he did not know. Tezsla stated he would not have conducted an investigation of the situation on the turnpike, even if blacks represented seventy-six per cent of those arrested. He was content to leave investigation of problems to a case by case review. Of course, that would reduce the inquiry to the word of the motorist against the word of the trooper, with predictable outcomes.
Tezsla claimed limited awareness of the litigation concerning allegations of racial targeting on the turnpike that had occurred in Middlesex and Gloucester Counties during the time he was the troop commander. If Tezsla were concerned by any statistics he would have passed them along to the Colonel and to the Internal Affairs Bureau. When presented with various examples of what the evidence has shown the stop and arrest data to be, Tezsla could give no definitive answer as to what he would have done had he been aware of it. "Anything is possible." (41T 18-14 to 19; 41T 24-22 to 41T 25-20; 41T 41-25 to 41T 43-24)
In its surrebuttal case, the state called Sergeant J. Kirchhofer. He testified as to Cultural Diversity and Sensitivity Training that the state police provided. It did not begin until November of 1990, lasted about a year, with a few make-up sessions given in 1992. There was no evidence of who attended it. (66T 41-20 to 66T 42-5)
To Sergeant Kirchhofer's knowledge, the subject of racial profiling did not come up in the training because it was not the focus of the training. (66T 75-23 to 66T 79-1) Training on the issue of prejudice was general and did not address such specific issues. (66T 57-13 to 66T 57-18; 66T 61-15 to 66T 61-20;
Kirchhofer acknowledged that the NAACP and ACLU received many complaints regarding racial targeting prior to this training. Handouts provided to the state police by the NAACP for use at training made recommendations, among them, that the State Police stop the practice of racial profiling. (66T 75-23 to 66T 79-1) This witness did not report any reaction on the part of those organizing the training or those receiving it that the recommendation was without merit. (66T 79-1 to 66T 79-10)
II. STATISTICAL ANALYSIS
A. CREATION OF AN APPROPRIATE DATA BASE OF STATE POLICE
STOP DATA
The defense filed its motion to suppress in March of 1990.(PA 25) The State ultimately stipulated that the defense had made the appropriate showing and conceded that the defense was entitled to extraordinary discovery embodied in subsequent court orders. See (PA 33-37)
At first the defense requested and was granted discovery, for the relevant time period, of arrest reports, patrol charts, radio logs and traffic tickets. Later, the defense was provided with photocopies of the backs of traffic tickets issued, which included race identifiers on 342 of them. The volume of documents was pared down using a sampling technique employing 35 randomly selected days.(9) (5T 106-14 to 5T 107-15) The State and its experts conceded at trial that the methodology of using thirty five randomly selected days was acceptable, and that in fact, the thirty five days were randomly selected.
Yet an issue of missing data, documents and materials remains significant to an understanding of this case. State Police SOP's re-quire race identification on many records generated by their contacts with citizens. For example, when Troopers stop any vehicle, SOP required that the Trooper give a description of the race of the occupants of the vehicle to be recorded in the radio logs. But, in a major portion of the cases this information was not recorded. (Da1-3; 5T 107-10 to 5T 108-7)
The Court would learn that in furtherance of profiling activities Troopers would not call in all stops, to eliminate a record of pretext stops. Former Troopers Kenneth Wilson and Kenneth Ruff testified that troopers patrolling the turnpike would frequently stop blacks and not call in the stops unless they decided to make an arrest, issue a citation, or felt that a complaint would be made by the motorist. (10T 91-23 to 10T 92-13; 7T 74-16 to 22) In the case of most fruitless profile stops, (most of them are) (10T 92-11), the motorist was happy to be allowed to go upon his way and the trooper would not call it in.
Ultimately, 3,060 stops were examined. The defense database included 1,146 race identified stops. The state's statistical expert, Dr. Leonard Cupingood, testified that his review of the data found 1,212 race identified stops. Thus, between 37.4% and 39.6% of the stops were race identified. (5T 107-10 to 5T 108-7) Dr. Cupingood acknowledged that while there were some minor discrepancies between the parties' final databases such small discrepancies are unavoidable when large databases are created, and the percentages that each party computed remained relatively constant. Final computations did not differ in any material way. Dr. Cupingood conceded the accuracy and reliability of the final defense database for purposes of the analyses in the case. (44T 128-6 to 44T 132-14)
B. Analysis Of The Relevant Motoring And Violator Populations
In order to establish a standard against which to compare the stop and arrest data Dr. John Lamberth, Chairman of the Psychology Department of Temple University directed the design of and participated in traffic and violator surveys for the areas in question. Dr. Lamberth was qualified, as he has been in many other state and federal courts, as an expert in statistics.(10) He testified to extensive experience in designing studies of a statistical nature. (2T 69-17 to 2T 74-12; 5T 27-15 to 5T 46-14)
The traffic survey was conducted from June 11 to June 24, 1993, between the hours of 8:00 a.m. and 8:00 p.m. The dates and times were randomly selected by Dr. Lamberth. (2T 151-12 to 2T 153-12; 5T 48-1 to 5T 56-7) Four sites were selected, two northbound and two southbound, one between exits 2 and 3, and one between exits 2 and 1, for each direction. Twenty-one randomly selected sessions (each of two segments for a total of 42 segments) were conducted. Defense witness Fred Last supervised the teams which observed and recorded raw data. The survey counted the vehicles on the turnpike with one or more black occupants. Excluded from consideration were large trucks, tractor trailers, buses and state vehicles. During the hearing, testimony was presented at great length as to how this study was conducted. (2T 81-2 to 2T 99-18; 2T 102-11 to 2T 105-3; 2T 144-15 to 2T 145-6)
The defense team counted 42,706 cars during the survey; 13.5% of the cars had a black occupant. (5T 59-17 to 5T 64-3) Almost 90 percent of the cars counted were registered in one of eleven eastern states. Dr. Lamberth testified that according to the 1980 census the black population of those states was 12.40 percent. Based on the 1990 census the black population of those state was 13.48 percent and thus consistent with the defense census. (5T 64-4 to 5T 69-19)
According to Dr. Lamberth the traffic survey revealed that 24.15% of the traffic on the turnpike involved vehicles registered in New Jersey (5T 65-22); 11.3% of the New Jersey vehicles counted in the traffic survey had black occupants. The traffic survey was also consistent with census figures and a study done by the Triangle Group for the U.S. Department of Transportation, of which Dr. Lamberth was aware. In this study, where New Jersey residents were surveyed as to their travel plans as to New Jersey limited access highways, between 8% and 13% of them were black. (5T 86-7 to 5T 88-14)
State expert Dr. Cupingood agreed that the defense traffic census was a reasonable method of determining the racial composition of the traffic on the Turnpike. (45T 35-14 to 45T 35-20)
In order to measure the racial mix of persons eligible to be stopped on the turnpike, Dr. Lamberth designed and the defense conducted a violator survey. The defense team drove a pre-tested pace car on the turnpike between Exits 1 and 3, while traveling at a fixed speed of sixty miles per hour (mph). Ten sessions were conducted over a four day period in July of 1993. (2T 153-13 to 2T 156-4) Vehicles which passed the survey vehicle which was operated at sixty mph, were deemed to be speeding and in violation of Title 39. 2T 156-7 to 15. Survey supervisor Fred Last also looked for other violations in addition to speeding. (2T 156-16 to 157-4) He made observation of 2,096 vehicles. (2T 164-9 to 12) He observed in excess of 300 vehicles that were both speeding and committing other violations.(11) (2T 169-9 to 10)
The violator survey established that 98.1% of the vehicles observed were violating the law; 15% of those violating the law were black, while 14.2% of multiple violators, i.e., those violating the speed limit and committing some other violation, were black. (2T 165-10 to 2T 167-22)
State witness and expert Leonard Cupingood offered but two minor criticisms of the violator survey: that it was carried out over only four days, and only during daylight hours. (47T 15-18 to 47T 16-1) He conceded, however, that he was unaware of any study or other support for the proposition that driving patterns were different at night than during the day. (49T 79-19 to 49T 80-12) He found the violator study to be sufficient to establish what was occurring on the four days studied. He further agreed that Reasonable statisticians could find that this study and its resulting data were accurate and could employ them in the overall analysis, as Drs. Kadane and Lamberth had. (47T 16-23 to 47T 17-7) Cupingood would have been "more comfortable" if more data had been collected. Yet he found that the number of observations of violators was sufficiently large.
Further, Dr. Cupingood did not question the 15% black violator figure; he only questioned whether it was the appropriate bench-mark, since the figure set for speeding was vehicular speed in excess of 60 mph. (45T 47-8 to 18)
Dr. Lamberth testified that based upon the violator survey, that the black percentage of the violator population is essentially the same as the black percentage of the population of turnpike travelers. (5T 94-18 to 5T 94-25) He found the difference between the counted 13.5% black population and the 15% black violator population to be statistically insignificant. 5T 116-4 to 8. He also noted that there was nothing to indicate that traffic patterns had changed between the time periods of April 1988 to May of 1991 and June to July 1993. (5T 77-7 to 5T 78-14; 5T 164-25 to 5T 168-7) Dr. Kadane concurred. Both experts concluded that the 15% figure would represent the number of black stops in a racially neutral system. (6T 111-13 to 6T 111-17)
C. Comparison of Stop Data with Population Data
Dr. Lamberth used these studies to analyze the stop and arrest data in the database. For the entire area south of Exit 7A, 35.6% of the stops in the defense database were of blacks. (5T 108-4 to 5T 108-14) This figure represented a 22.1% absolute disparity, a 164% comparative disparity, and 22.1 standard deviations between the stops of black motorists by the New Jersey State Police Moorestown Barracks and the numbers of stops of black motorists that would have occurred if they had been stopped consistent with their representation in the violator population. (5T 108-16 to 5T 109-6) Dr. Lamberth found it highly unlikely that the disparities could have occurred randomly or by chance. (5T 110-23 to 5T 111-20)
Dr. Lamberth informed the Court that between Exits 1 and 3, 46.2% of the stops were of blacks. (5T 109-7 to 5T 111-3) This was an absolute disparity of 32.7% a comparative disparity of 242% and 16.35 standard deviations.(12),(13) Id.
The defense also presented the testimony of Dr. Joseph B. Kadane. Described by the Court as "an eminently qualified statistician," (Pa 4) Dr. Kadane graduated cum laude in Mathematics from Harvard University in 1962. Four years later he obtained a Ph.D. in statistics from Stanford University. After four years as an assistant professor of statistics at Yale , Dr. Kadane joined the faculty of Carnegie Mellon University in 1971. From 1985 to the present he has occupied the Leonard J. Savage Chair, as Professor Of Statistics and Social Sciences. Dr. Kadane chaired the Carnegie Mellon Department of Statistics from 1972 to 1981. (Pa 4; 6T 73-22 to 6T 90-23)
In addition, Dr. Kadane has held numerous editorships, including serving as Editor In Chief for the Journal of the American Statistical Association. He served on the National Research Council/National Academy of Science Committee for research in Law Enforcement and the Administration of Justice, from 1980 to 1986. Id. He has been a member of the Advisory Committees for the National Science Foundation on Ethics and Values in Science and Technology and Ethics and Values Studies. Dr. Kadane served on the Task Force on Proportionality Review and Death Sentence Cases for the National Center for State Courts. From 1990 to 1995, he was a member of the Council for Social Sciences Policy of Yale University. His publications are legion. Dr. Kadane was qualified as an expert in the fields of statistics and social sciences. (Pa 4; 6T 73-22 to 6T 90-23)
Dr. Kadane testified that in his opinion the traffic and violator surveys were well designed and were reliable for statistical analysis. (6T 92-10 to 6T 99-2) He confined his analysis primarily to stops carried out south of Turnpike Exit 3. When comparing those stops to the 15% violator base, the expert found that a black was 4.85 times more likely to be stopped than a non-black, on the New Jersey Turnpike south of Exit 3. (6T 111-5 to 6T 111-20) Dr. Kadane explained that data do not establish the thought process of any individual officer, but testified that these data require a very serious explanation since it would appear that something "strong and social" was driving these numbers and that they indicate a substantial lack of race neutrality. (6T 122-21 to 6T 123-20; 6T 146-21 to 6T 147-10) Although he considered stop data to be by far the most important data for analysis, he also looked at arrest data. Dr. Kadane told the Court that he considered the arrest data to be ambiguous because he did not know the extent of persons eligible for arrest. However, he determined that 74.3% of the arrests south of Exit 3 were of blacks. He calculated that a black is 16.5 times more likely to be arrested than a non-black south of Exit 3 on the New Jersey Turnpike. While ambiguous, he found these statistics not to be meaningless but further suggestive that something "strong and social" was occurring on the turnpike. (6T 147-11 to 6T 148-19; 6T 150-5 to 22)
D. Missing Data Analysis
Since only 37.4% of the stops were race identified, in order to satisfy himself that missing data was not a problem, Dr. Kadane conducted a logarithmic analysis utilizing what he described as the "extreme assumptions" that the odds of a black person's race being recorded when stopped were two and three times as great as the odds for all others having their races recorded. (6T 124-15 to 6T 123-13) Even using these radical assumptions(14), the stop data are not race neutral. Under the most extreme assumption that the odds of race being recorded were three times greater for blacks, the probability is 99.7% that the results were not race neutral remains. (6T 158-3 to 6T 161-4; 6T 142-5 to 6T 146-20) State's expert, Dr. Cupingood agreed that Dr. Kadane's missing data analysis was conducted using a reasonable and accepted technique recognized in the community of statisticians. (53T 133-7 to 53T 133-20) Now on appeal state attempts to cast doubt on this accepted procedure performed by an expert the court below found to be "eminently qualified."
E. Increased Trooper Discretion Produced
Dramatically Increased Percentages of Black Stops
The defense studied the racial composition of the tickets issued by the three different units that operated out of Moores-town: Radar Unit, TAC/PAC and General Patrol. (Da 4)
Using a remote van and leaving no discretion in the hands of patrol troopers, the Radar Unit issued only 18% of its tickets to blacks. (13T 19-11 to 13T 21-2) Drs. Lamberth and Kadane testified that this proportion was statistically consistent with the 15% black percentage in the violator survey. (14T 28-19 to 14T 29-4; 62T 42-13 to 22) 23.8% of the tickets issued by the Tactical Patrol Unit were to blacks. (13T 31-9 to 12) However the Patrol Unit issued fully 34.2% of its tickets to blacks.(15) (13T 31-13 to 13T 31-15)
The Radar Unit's 18% figure of tickets issued to blacks com-pared to the 34.2% issued by the Patrol Unit to blacks, is a statistically significant difference, representing 2.89 standard deviations. (14T 5-9 to 14T 8-13) By convention, something is considered statistically significant if it would occur by chance fewer than five times in a hundred (two standard deviations). (14T 10-23 to 14T 11-15) 2.89 standard deviations would occur by chance less than five times in a thousand. (14T 15-12 to 18) Comparing the tickets issued by the Tactical Patrol Unit to those of the Patrol Unit Dr. Lamberth found a statistically significant difference between the rate at which tickets are issued to blacks by those units, to the extent of 2.21 standard deviations. (14T 17-22 to 14T 18-1) Such differences would occur by chance three times in a hundred. Id. In essence the comparison of these figures for each respective unit showed that increasing levels of trooper discretion translated into increasing percentages of black stops. (Pa 5) The more a unit concentrated on traffic violations, the fewer black tickets it issued.
The State's own driving under the influence (hereinafter DUI) study dramatically pointed out the correlation between trooper discretion and black stops and arrests. It also further demonstrated the increased attention patrol troopers paid to black motorists South of Exit 3. See infra.
F. STATE'S STATISTICAL ANALYSIS
1. Dr. Cupingood
In an attempt to refute the statistical and non-statistical evidence presented by the defense, the State presented only what the Trial Court described as "denials and the conjecture and flawed studies of Dr. Cupingood." (Pa 16) Careful analysis of the testimony of Dr. Cupingood shows that the data he purports to interpret corroborates discrimination.
Dr. Cupingood has published few items in his chosen field. (43T 40-10 to 43T 63-23; 43T 52-7 to 43T 52-19) Only one publication has been peer reviewed. Dr. Cupingood's consulting practice now and for many years has been almost exclusively forensic. (43T 63-25 to 43T 64-21) His only non-litigation engagement with his present employer has been developing a urine testing program. (43T 16-10 to 43T 19-4) He was qualified only as an expert in statistics. (43T 35-8 to 43T 35-11; Pa 5)
Dr. Cupingood claimed on his Vita to have been an assistant professor at Villanova University, whereas he was actually an adjunct instructor with no scheduled teaching assignments(16). (43T 38-3 to 43T 40-6; 43T 56-9 to 43T 56-17) Dr. Cupingood was unable to locate or produce copies of his written works.(17) (43T 46-9 to 43T 46-20; 43T 48-1 to 43T 49-7; 43T 50-1 to 43T 50-8)
With the exception of Lt. Madden's study of DUI arrests, described below, Dr. Cupingood and other state's witnesses conducted no population studies, no violator studies, and no independent investigations to determine whether the New Jersey State Police were targeting black motorists on the Turnpike. (Pa 16) The State's experts had recommended that studies be done after reviewing the statistical evidence produced by the defense, but the Attorney General's Office would not agree. (47T 41-11 to 47T 44-17; 47 T 69-12 to 47T 74-21)
2. Cupingood's Three Studies of Supposedly Race-Blind Stops
Dr. Cupingood attempted to cast doubt on the violator survey and its product, the fact that only 15% of persons violating the motor vehicle laws, or those eligible to be stopped are black. (45T 11-12 to 45 T 13-8; 45 T 47-25 to 45T 49-15) Yet all of the State Police witnesses questioned on the subject, whatever their rank, provided the trial court with the observation that blacks do not drive differently or worse than whites. These persons were : Det. Timothy Grant, Sgt. Cobb, Corporal Bauman, Trooper Nemeth and Colonel Pagano. (Pa 6; 20T 136-9 to 18; 24T 14-6 to 24T 14-20; 22T 39-2 to 22T 40-13) Defense expert, Dr. James Fyfe also testified that there is no observed difference in driving patterns between the races. (Pa 6) Dr. Cupingood would ultimately concede that if the 15 percent benchmark were accurate then something may be amiss on the Turnpike. (53T 135-5 to 53T 136-16)
Still acting on his assertion that the violator study may not be the appropriate benchmark, Dr. Cupingood proceeded in the court below with additional studies. Three such "studies" were Cupingood's studies of night time stops, radar stops and drunk driving arrests which resulted from "calls for service". (45T 78-19 to 45T 81-22)
a. Night Stops
Using the definition of day and night established by Mr. Last under Dr. Lamberth's direction, night stops were 37.3% black versus 30.2% for daytime stops. Dr. Cupingood's night stops study relied on his premise that night stops are more race neutral because race would be harder to observe at night. (45T 89-7 to 45T 93-4; 49T 124-14 to 49T 129-20) This premise was based on Cupingood's personal feeling that race is harder to spot at night. Some years ago he had driven to Washington D.C. at night and recalled that observing the race of other drivers was a task for him. (Pb at 18; 49T 135-13 to 136-11; 49T 135-13 to 49T 136-11) He therefore found significance in the fact that between Exits 1 and 7A blacks represented 37.3% of night stops as opposed to 30.2% during the day. On this Dr. Cupingood suggested that the 15% benchmark may be too low.
Upon further examination, Dr. Cupingood agreed that he did not account for police training or use of spot lights that would allow for such observation. (49T 136-22 to 49T 141-18) He was unaware of the practice of troop cars parking perpendicular to the road with lights on so as to illuminate the interior of passing vehicles and their occupants. He further conceded that a trooper could identify one or two black motorists per night and that this figure would be all that was necessary for the number of troop cars on the road to stop the average eight black occupied vehicles per night or one or two per trooper. (50T 38-5 to 50T 46-15; 51T 69-2 to 51T 69-11) Defense evidence credited below established that at night the race of occupants could be ascertained almost 100% of the time from a standing position at a rest area with lights on and 80% of the time when a car is moving at 55 miles per hour. (11T 186-16 to 11T 193-24)
b. Radar Tickets
Dr. Cupingood offered an analysis of radar stops as an alternative benchmark. (45T 93-5 to 45T 96-3) He alleged this because 28.5% of tickets from the database represented tickets given to blacks allegedly based on radar. It was his assertion that a radar device could not determine the race of the vehicle's occupants. (45T 93-5 to 45T 96-3) However, testimony of police witnesses established that although a radar device is race blind, its operator is not. (Pa 7) Unlike the Radar Unit and the Tac Pac troopers, General Patrol troopers enjoy virtually unfettered discretion in the use of their radar units and the issuance of radar tickets. (50T 59-7 to 50T 79-5) Even after making a stop a trooper may decide to issue only a warning. Id.
On cross examination Dr. Cupingood admitted that he had never been advised of vast discretion Patrol troopers exercise in deciding who to stop with their radar. He had never been advised of the differences in the operation of the specialized Radar and Tactical Patrol Units; and he had never been advised of the limited discretion of the trooper making a stop for the Radar Unit. (51T 145-12 to 51T 155-23; 53T 75-25 to 53T 76-20) He had combined all radar tickets in his analysis regardless of the State Police Unit which issued them. Id. He conceded that there was discretion within troopers in who they could ticket. Id.
c. DUI Calls for Service
Dr. Cupingood also referred to a study of DUI arrests directed by Lt. Fred Madden of the state police. Madden directed a study of black DUI arrests, and particularly those related to calls for service. Madden categorized calls for service arrests as those stemming from the investigation of an ACCIDENT, a motorist AID, which usually means the investigation of a car stopped by the side of road, or OTHER, which usually means that the offending motorist is brought to the attention of the state police by a toll-taker or a civilian. Madden did the study because he wanted to show the rate of black arrests where the discretion of the trooper supposedly was not at issue. (26T 18-16 to 26T 19-12)
During the period from July 1988 to June 1991 (Da 7) the black percentage of calls for service DUI arrests for the Moorestown Barracks was 23% of a total of 210. They broke down as follows:
Accidents 23% of 73
Aids 26% of 102
Other 11% of 35
Madden admitted during cross-examination that while troopers had less discretion in DUI arrests resulting from calls for service, significant discretion still remained with them. (27T 31-16 to 27T 34-15) In fact, in the one area where the least discretion is involved, i.e. the wrong-doing is observed by other than a trooper, the percentage of black arrests is in line with the black population of the turn-pike, and consistent with the benchmark established by the defense Violator Survey. (27T 35-19 to 27T 36-2; 27T 37-11 to 27T 38-7) In the area where discretion is the highest, patrol related DUI arrests, 41% of 347 arrests by Moorestown troopers were of blacks. (Da 14; Da 82)
Lt. Madden did a further study of DUI arrests by the Moores-town Barracks, south of Exit 3, during the period July 1988 to June 1991. (Da 80). This study was not revealed to the defense. Madden brought it into the courtroom from the trunk of his car only after he was asked by defense counsel if he had done a study of DUI arrests South of Exit 3. (26T 116-12 to 26T 116-14) South of Exit 3, DUI arrests related to calls for service were 25% black out 65 arrests, broken down as follows:
Accidents: 14% of 14
Aids: 35% of 34
Other: 12% of 17
South of Exit 3, 50% of 108 patrol related arrests were of blacks. (Da 85; Da 91)
Madden's other compilations of DUI arrest statistics are as follows:
Black Percentages Of DUI Arrests
Statewide(all departments) 12%
Statewide (excluding State Police) 10.4%
State Police (excluding other departments) 16%
Troop D 23%
Moorestown Station 34%
Moorestown Station(Patrol Related) 41%
Moorestown Station(Patrol Related, South
of Exit 3) 50%
(Da 11-13; Da 82-93; Pa 8)
Dr. Cupingood proposed looking at the DUI arrests resulting from calls for service, as another standard, for the same reason that Lt. Madden said that he did the study: He argued that it purported to show the rate at which blacks were stopped for DUI where the discretion of the state police was eliminated. Dr. Cupingood stated that there was little or no trooper discretion attendant these arrests, (45T 96-4 to 45T 102-18) but he had no idea what areas and levels of discretion were enjoyed by the troopers. (50T 95-14 to 50T 101-17)
He admitted that when comparing the 23% black DUI Calls for Service arrest standard with the 41% Patrol DUI arrests (25% vs. 50% south of Exit 3) the possibility arises that the discretion of patrol troopers is used to discriminate against blacks. (50T 112-8 to 50T 112-21) He further claimed that he never considered this disparity before it was presented to him on cross examination, because he was unaware of it although it was on the same page of P13,(Da 14; 50T 101-18 to 50T 102-14), as the 23% standard he proposed to the Court. He claimed that he had reviewed several versions of P13(Da 7-19), all containing these statistics.
When asked if discretion was driving the statistics, he said that he could not tell if that was true or not. (50T 112-8 to 50T 112-21) When the Court asked what other explanation might there be, Dr. Cupingood offered that it might be the racial mix of the drivers observed. (50T 112-10 to 50T 112-17)
When presented with statewide statistics on DUI arrests:
Statewide (all departments) 12% black
Statewide (excluding state police) 10.4%
Troop D (patrolling the turnpike,
including Moorestown Station) 23%
Moorestown Station 34%
Dr. Cupingood was asked to explain what drove these statistics. He conceded that discretion well could be a factor producing these statistics, but he would not concede that it was necessarily the driving force even though he could offer no other explanation of these differences.
Dr. Kadane criticized Cupingood's proffered alternative benchmarks because each Cupingood alternative, e.g. DUI stops, rested upon a set of black stops by the State Police which may reflect the bias that is under examination. (62T 16-18 to 62T 18-19) Dr. Kadane said that Dr. Cupingood should not utilize a standard tainted by the possible racial prejudice of the state police. (62T 18-3 to 62T 18-10)
3. Profile Analysis
Former New Jersey State Troopers, who testified for the defense, told the Court that they had been trained that they could increase their arrests by using a profile that included racial components. (10T 17-22 to 10T 20-20; 10T 59-21 to 10T 68-10; 11T 36-4 to 11T 39-22; 11T 116-14 to 11T 149-12; Da 58-59) Dr. Cupingood claimed to have done a study of the stop data to identify which stops included what he characterized as "profile characteristics", characteristics identified by Former Troopers Wilson and Ruff. (46T 52-11 to 46T 93-10) He determined that only 6.6% of all stops could be identified as having a so-called "young black male" (Although in fact the defense found -- even using Cupingood's definition of "young" as under 30-- that 11.6 of all stops include a young black male). (46T 62-1 to 46T 62-22) Cupingood arbitrarily established 30 years old as the upper limit of "young." (50T 90-8 to 50T 93-6; 50T 97-1 to 13) Only 0.3% of all stops included a young black male with four additional profile characteristics; 0.6% of all stops with race, sex and age identified.
Cupingood's "study" assumed facts not in evidence and indeed contradicted the known facts. To illustrate, Ruff and Wilson testified that the profile was not, as Cupingood assumed, written in stone. Thus, there was no rigid definition of what was a young man or a new car; not all factors had to be present. According to Ruff and Wilson, the concept was that the presence of some profile factor, principally race, would enhance one's chances of choosing a fruitful target for a search. (10T 17-22 to 10T 20-20; 10T 59-21 to 10T 68-10; 11T 36-4 to 11T 39-22; 11T 116-14 to 11T 149-12; Da 58-59)
The Cupingood study used "ticketed " stops because they were the only stops where there was enough data to examine four or five so called profile characteristics. (50T 90-8 to 50T 95-22) But Cupingood's focus on ticketed stops rendered his work marginal since so many of the black stops, 63% of the stops south of Exit 3, were unticketed. (50T 98-22 to 50T 99-10)
The defense reviewed these same issues, with its focus on the evidence of record, and produced substantially different results. From tickets and arrest reports the defense identified 211 stops of blacks stops which could provide the enough data to determine the presence of profile factors. Where gender of all occupants could be determined, an adult black male was present in 88% of the cases. Where gender and age could be determined, 63% of the stops involved a "young black male," where 30 years of age was the upper limit of "young." If 35 years old is used as the upper limit, 70% involved an adult young black male.(18) (64T 19-15 to 64T 19-22)
Additional profile factors were present in nearly all the stops involving a young black male. Profile factors were also found in nearly all stops of blacks, whether or not young black males were present. (64T 18-5 to 64T 19-10; 64T 36-7 to 64T 38-17) For stops where the upper limit of "young" was 35 years of age, seventy nine percent of the stops of young black males had two or more other profile factors, and 43% had three or more other profile factors. Limiting consideration to stops south of Exit 3, the figures are 41% for three or more profile factors and 85% for two or more profile factors. (64T 19-15 to 64T 19-22; 63T 140-22 to 63T 143-19; 64T 21-19 to 64T 28-22; Pa 9)
Even though the defense offered these percentages in rebuttal to Dr. Cupingood's analysis, the figures in all likelihood under report the overall number and percentage of stops where significant numbers of profile factors would be found.
4. Mantel-Haentzel Analysis
In response to D32, (Da 4), the defense's comparison of the rates at which the different units (radar van,/tac pac/ general patrol troopers) stop blacks, Cupingood devised a "study" of radar tickets issued by all Moorestown Station Troopers. (46T 93-14 to 98-10) He combined the Radar and Tactical Patrol Units into one unit, even though the testimony showed significant differences in the way that they operated. (46T 101-11 to 46T 102-5; 51T 145-124 to 51T 155-23) He then divided the 35 randomly selected days into four different length time periods. (52T 28-21 to 52T 41-5; 53T 149-19 to 53T 154-8) He acknowledged that the time periods were arbitrary and that two of the four were intended to correlate with rush hour periods, although State's witness, Sgt. Cobb had testified that the turnpike was unique in its traffic volume and did not have rush hours, comparable to other highways. (37T 70-17 to 37T 72-1) Dr. Cupingood chose not to make his time periods correspond with the work schedules for the Radar and Tactical Units, nor did he elect to compare all tickets issued by each group. (52T 41-11 to 52T 41-20)
While there were 140 time periods during the 35 randomly selected days, only 28 were included within Dr. Cupingood's study, and these covered only 18 different dates. (46T 122-3 to 46T 123-12; 52T 50-6 to 52T 52-14) He only counted stops occurring during time periods where at least one race-identified radar stop was made by a patrol trooper and at least one race identified radar stop was made by a member of the Radar or Tactical Patrol Unit in the same arbitrarily selected time period. (46T 99-6 to 46T 101-4) This winnowing of the data limited the analysis to periods he chose when patrol troopers and members of the Radar or Tactical Patrol Units were operating, and each wrote at least one race identified radar ticket. (52T 23-1 to 52T 24-20) If all of these criteria were not met the time periods and data were discarded. Id.
The effect of this severe limiting of data was to artificially limit the number of stops under consideration; this winnowing of the data into small pools artificially reduced the numbers of standard deviations that the data will yield. (62T 22-19 to 62T 27-16; 62T 33-3 to 62T 34-12) But the differences between the percentage of black stops for each respective unit does not change (62T 28-25 to 62T 30-1; 62T 46-23 to 62T 56-8) and those differences give, according to Dr. Kadane, the true measure of what's going on: significant increases in racial non-neutrality that come from increased levels of police discretion. (62T 35-5 to 62T 36-12)
After winnowing the data, Cupingood assumed that each unit issued tickets to blacks at the same rate -(46T 104-10 to 46T 104-14)-when in fact those black ticket rates were markedly different(18% radar unit/ 23% tac pac/ 34.2% general patrol troopers). See "Increased Trooper Discretion, supra. Then comparing the "blended" rate of black tickets to the rate at which general road troopers issued tickets to blacks Cupingood found that found that there were only five "excess tickets" issued by general road troopers beyond what would have been expected. (46T 104-8 to 46T 105-14) This concept of "expected" tickets was calculated by combining the tickets issued by all units and comparing the percentage of tickets issued to blacks by all units to the percentage of tickets issued to blacks by the patrol unit. (46T 104-8 to 46T 105-14) Dr. Cupingood said this difference was within two standard deviations and allegedly was not statistically significant based upon his "Mantel-Haentzel" analysis.(19) (52T 63-3 to 52T 63-21)
Originally Cupingood was faced with the contrast between all radar tickets issued by the combined radar and tac-pac units, 21.4% black (59 of 276), to all radar tickets issued by patrol troopers, 36.2% black (93 of 257). (46T 107-13 to 46T 108-17) He had to concede that this difference was statistically significant. (46T 109-20 to 23; 52T 16-15 to 52T 17-1)
Dr. Cupingood was never able to explain to the satisfaction of counsel, defense experts and the Court why it was logical to combine the unit totals to create a norm from one blended unit against which to measure the "excess" number of black tickets from the general patrol trooper. (Pa 9) See also (52T 104-21 to 52T 110-14; 52T 119-12 to 52T 120-3).
Dr. Cupingood's "Mantel-Haentzel" analysis was accomplished with a computer program created by one of his office employees. (47T 63-1 to 47T 63-23; 47T 65-14 to 47T 65-22) He had never reviewed the programming to verify its accuracy. He did know that the program produced no warnings or other advisories such as a true Mantel-Haentzel calculation does on commercially available statistical computer programs, (52T 149-11 to 16) and he did not know if his data would have produced such warnings or advisories on a commercial program. Id. He had such little understanding of the mechanics and formulae of the calculation that his initial attempt at providing the calculation to the defense expert was inaccurate and had to be withdrawn. (52T 133-17 to 52T 134-6) Dr. Cupingood ultimately concede that his "Mantel-Haentzel" analysis was not a Mantel-Haentzel analysis.
Dr. Cupingood testified that he had employed the same Mantel-Haentzel Analysis along with an analysis of expected tickets in a similar case in Warren County, State v. Kennedy. He admitted that he never explained to that trial court the way in which he winnowed the data or the fact that he pooled the data to determine the number of expected out of state tickets. (52T 154-14 to 52T 175-3) When asked why the court was not given this information, he answered that he was not asked. (52T 172-9 to 52T 175-13)
Although Dr. Cupingood had been referring to his analysis as a Mantel-Haentzel Analysis, he had to concede that the Mantel-Haentzel Statistic does not calculate "excess tickets" or excess anything. (52T 134-19 to 52T 138-2; 52T 146-12 to 52T 146-16) It produces a series of numbers that are to be summed and compared with standard reference numbers on a chi square table. (52T 136-14 to 52T 137-17) His testimony that there were "5 excess black tickets" represented his calculations of the differences from the combined rate of expected black tickets from each of his small pools (52T 138-3 to 8) and was not related in any way to the efforts of the scholars Mantel and Haentzel. (52T 139-3 to 52T 152-4) This calculation was his own creation. Id. The Court in the case at bar found the calculation to be, worthless. (Pa 9)
5. DR. CUPINGOOD'S CONCESSION CONCERNING THE
APPROPRIATE BENCHMARK
Ultimately, Dr. Cupingood made a significant concession on the issue of the appropriate benchmark. All of the State Police witnesses, whatever their rank, testified that blacks do not drive differently or worse than whites. They included: Det. Timothy Grant, Sgt. Cobb, Corporal Bauman, Trooper Nemeth and Colonel Pagano. (Pa 6) Defense expert, Dr. James Fyfe also testified that there is no observed difference in driving patterns between the races. Id. Dr. Cupingood would ultimately concede that if the 15 percent benchmark were accurate then something may be amiss on the Turnpike. (49T 121-21 to 49T 123-4) Thus, Dr. Cupingood's theory that the violator survey did not collect the relevant data: the racial mix of those he alternately described as most likely to be stopped or those who call attention to themselves proved to be the only significant criticism of the defense statistical analysis that he held to through-out his testimony.
Yet, when asked by the Court whether he knew of any empirical evidence that blacks commit any motor vehicle offense at different rates from whites Dr. Cupingood answered that he was not aware of any such data.(Pa 6) He guessed that there might be data on automobile accidents that would support his hypothesis, but he was unaware of any, and did not know what such statistics were or even if they existed. He had not been advised of the testimony of four troopers called by the state, that black motorists did not drive worse or differently from other races. (49T 119-24 to 49T 121-20) Trooper Nemeth, a veteran of many years of traffic enforcement, testified as follows:
WINTNER: ...My question I think is a little more general and that is that there's nothing, is there, Tpr. Nemeth, about the way blacks drive that made them more noticeable or stand out to you more than the way whites drive?
NEMETH: I haven't found any....
WINTNER: Now....
NEMETH: Characteristics that would go on just 'cause of a race. No.
WINTNER: Now,
(Interruption)
WINTNER: Now, you've had occasion I assume in your experience, Tpr., Nemeth, to issue motor vehicle violations and warnings to both white motor vehicle operators and black operators?
NEMETH: Yes. I have.
WINTNER: Was there anything about the...that you can recall about the black violators as a group to distinguish them from the white violators as a group?
NEMETH: Distinguish?
JUDGE: I'm not sure that I understand what...
WINTNER: Well, is there anything....
NEMETH: Are you trying to say are your speeds higher or their actions different? No.
WINTNER: So....in other words, there's nothing in your experience where you could say that, uh uh , blacks violate the speed limit or blacks violate the traffic laws, whites violate the traffic laws, but black violators are more obvious and noticeable than white violators? Is that true?
NEMETH: Not that I found. No. That's wrong. No. (22T 59-2 to 22T 40-13)
Cupingood conceded that had he known this, it would have affected his opinion as to the validity of the violator survey. If blacks and others drive in every way indistinguishably, it would have been "the missing study:"
Q: Well, now let me specifically then, again, direct your attention to the testimony of Tpr. Nemeth, who testified that there was nothing about the way black motorists operate their motor vehicles on the turnpike to call their attention to police officers more than would any other group of vehicle operators. Doesn't that statement encompass the concerns you've just expressed?
A: If you interpret to mean they sort of drive in every way indistinguishable, blacks and whites are indistinguishable, yes, that would seem to encompass that. That's essentially the study that one would be looking for, in, in order to have you know, relevant data to go forward with analysis. (49T 122-16 to 49T 123-4)
6. Testimony in Prior Cases
In the course of this hearing the defense brought to the Court's attention the testimony of Cupingood and his hypotheses in other cases. In a striking parallel to his "blacks drive worse" hypothesis in the present case, in another case, the Sprainis case in Warren County, Cupingood hypothesized that perhaps out of state drivers drove in a manner that called attention to themselves. In Sprainis, the issue had been whether a certain trooper had discriminated against out of state drivers. There Dr. Cupingood hypothesized that the more frequent stopping of out state drivers arose perhaps because these drivers drove in a way to call attention to themselves. In neither case were there any facts of record for these hypotheses.
In the Middlesex County case State v. Jones, Dr. Siskin, the principal of Cupingood's firm and co-author of Cupingood's reports in this case testified that statistical studies could not be dispositive and what would be necessary to prove discrimination would be a controlled experiment featuring among other things black and white test drivers careening down the Turnpike at 80 miles an hour to determine if only blacks are being stopped. Dr. Cupingood was questioned about the testimony of his colleague and mentor. On cross examination he ultimately acknowledged that such an experiment would have required far more than Dr. Siskin had suggested. It became evident that such a controlled experiment could not be done in any way that resembled the description given the court by Siskin, if it could be done at all.(20)
III. NON-STATISTICAL EVIDENCE Of Discriminatory Purpose
A. The Profile and Its Operation
Former New Jersey State Troopers, Kenneth Wilson and Kenneth Ruff, testified that the State Police trained its troopers to target blacks for stop on the Turnpike. (10T 17-22 to 10T 20-20; 10T 59-21 to 10T 68-10; 11T 36-4 to 11T 39-22; 11T 116-14 to 11T 117-25; 7T 127-2 to 7T 127-23; 7T 90-24 to 7T 114-2) Such training occurred principally in one on one training sessions such as those provided by DITU. Id. As early as their formal training in the Police Academy they were instructed to wait until they were in the field with a coach to learn some of the basics. Ruff's coach taught him to forget what he learned in the Academy and to concentrate on the teachings of the experienced troopers. (7T 40-21 to 7T 41-10; 7T 45-23 to 7T 46-3) Dr. Sherman, the state's expert criminologist, was later to confirm the accuracy of such testimony, i.e.: this is what police officers are usually told after leaving their respective academies. (68T 163-25 to 68T 164-9)
Kenneth Wilson had as a coach, Trooper Mannikus. (10T 14-6) During conversation, Mannikus determined that Wilson would not "have a problem" stopping blacks. (10T 17-22 to 10T 18-16) He explained that Wilson would find that blacks were the ones primarily trafficking in drugs. (10T 19-7 to 10T 19-12) He helped Wilson acclimate himself to looking for cars with southern license tags and young black male passengers, preferably two or three in a vehicle. (10T 19-15 to 10T 20-20) He taught him to look for reasons to stop a car and for probable cause to "get into a car." (10T 21-6 to 10T 22-10)
Wilson testified that a trooper can find a motor vehicle violation for just about any car on the road. (10T 36-4 to 10T 36-5; 10T 74-14 to 10T 74-19) Colonel Pagano testified also that if a police officer followed a motorist long enough, the motorist would do something he could be stopped for. One common technique is to follow a vehicle for a significant distance. The driver tends to look back in the mirror, because a police car is following him, which causes him to weave. Id.
Wilson was taught to write his reports so that they would hold up in court. (10T 40-13 to 10T 44-81) Where necessary, he was taught that he should leave grey areas. (10T 42-4 to 10T 42-12) Sometimes, his reports were returned to him to re- write and he was helped with the language to use so that they would "hold up in court". (10T 40-13 to 10T 42-12) DITU trainer, Trooper Grant provided some of this training. (10T 59-24 to 10T 68-10) Grant conceded that he provided training on how to write reports which he referred to as teaching "streamlining" reports. (19T 207-9 to 19T 208-11) During their one on one training Grant told Wilson he could teach him some trickery about getting into cars. (10T 63-11 to 10T 63-19)
Wilson testified about Jamaican Posse training. The troopers were taught that members of the Jamaican Posse could look like any other black man. (10T 77-5 to 10T 79-18) Kenneth Ruff confirmed seeing the same training. (7T 104-24 to 7T 108-18) The training told Ruff to always look beyond the motor vehicle stop with a Black man. Id.
Kenneth Wilson testified that much of the training regarding profiling was implied. (10T 80-20 to 10T 81-15) "It's just like they don't tell you to lie in a report, they tell you to re-write it." (10T 80-20 to 10T 81-11)
On the turnpike, troopers who are profiling, often position their vehicles perpendicular to the turnpike, off the roadway, so that they can see the occupants of cars. (10T 83-24 to 10T 87-3) At night, troopers that were profiling used their high beams or the spotlights and could tell if a vehicle occupant was black or white. (10T 87-4 to 10T 87-20)
Wilson and Trooper Ruff testified that the perpendicular position is one that is not used for general traffic enforcement purposes, because the trooper cannot use radar from that position. (9T 29-23 to 9T 33-22; 10T 120-5 to 10T 121-9; 10T 85-3 to 10T 86-5) This testimony was corroborated by the testimony of Trooper Nemeth, when he testified for the State. (21T 129-25 to 21T 130-8)
While on the turnpike Wilson received DITU Training from then Trooper, now Sergeant Cobb. (10T 87-21 to 10T 87-23) There was discussion of the general profile with Trooper Cobb. (10T 89-18 to 10T 89-25; 10T 90-3 to 10T 90-13) It was a common practice not to call stops in, at least until it was determined that an arrest would be made or the trooper thought that the motorist might complain or that the stop would take a long time. (10T 91-13 to 10T 93-15) In his testimony, Trooper Wilson estimated that he might stop 20 to 30 people in order to make one arrest. (10T 103-13 to 10T 104-11)
Trooper Cobb taught Wilson conversational techniques, one of which was to tell the driver that he had been weaving and ask if he was tired. (10T 95-2 to 10T 96-2) "Were you drinking? Do you mind if I look for alcohol?" Id. Wilson testified that he often saw other troopers with cars pulled off the road who had not called in the stops. On several occasions Wilson backed up Moorestown station troopers who were making profile stops. (10T 155-21 to 10T 157-21)
Wilson testified that the profile for blacks was essentially young black males usually with southern or rental tags. They could be driving very new or very old cars. (10T 75-4 to 10T 75-14; 10T 17-22 to 10T 20-20)
If a trooper were looking for really large quantities of narcotics, he should be looking for Colombians or Hispanics going north, particularly with Florida license plates. (10T 107-5 to 10T 107-23) However the likelihood of getting a really large shipment is not as great as is finding a smaller shipment carried by black couriers. (11T 36-4 to 11T 39-22; 11T 53-25 to 11T 55-5; 11T 101-25 to 11T 102-18)
Wilson was indicted for criminal acts that he committed while a trooper stationed at the New Brunswick Barracks of Troop "D." Ultimately he entered into a plea agreement with the prosecution. Wilson testified on behalf of the State of New Jersey before the grand jury, which indicted several troopers who were working out of the New Brunswick Barracks. (10T 164-13 to 10T 166-12) He was not indicted for racial profiling. Id. He testified that he was questioned by officers from the Internal Affairs Unit, Dick Jones and Detective Volkman. When he tried to tell them about racial profiling, he was told to stick to the case at hand, that he was telling them more than they wanted to know. (11T 4-6 to 11T 6-23) The State did not call either investigator to refute this testimony.
The State called Detective Uke Mannikus in an attempt to rebut the testimony of Kenneth Wilson. (22T 76-25 to 22T 90-25) Detective Mannikus remembered making one arrest with Trooper Wilson, while he was Wilson's coach. Wilson had testified, this stop was Wilson's version of a profile stop for white people; hippies. (10T 31-7 to 10T 32-1) Detective Mannikus agreed on cross-examination that the arrestee fit that description, with long hair, etc.. (22T 106-4 to 22T 107-6)
Mannikus denied ever telling Wilson to single out young black males. (22T 108-24 to 22T 111-25; 22T 154-9 to 22T 156-6) Detective Mannikus, made his denial in an answer to a question by counsel for the state as to whether or not he trained Wilson to stop based on ethnicity. Id. Mannikus answered that he never told Wilson to single out young black males. During cross- examination, he admitted that he added the phrase young black males to the answer. Id. The term "young black males" had not been used by counsel or the Court and he had been sequestered before he testified. Id. at 155-10 to 156-2.
Former New Jersey State Trooper Kenneth Ruff served as a New Jersey State Trooper from January 15, 1987 until January 15, 1991. (7T 5-16 to 7T 9-10) At that time, his enlistment was not renewed by the Colonel of State Police. (8T 23-25 to 8T 24-21) Much of that time he patrolled the New Jersey Turnpike. (7T 5-16 to 7T 9-10) However, Ruff did not have a strong interest in criminal enforcement and declined to engage in profiling. (7T 137-5 to 7T 137-25)
Northbound the profile was Colombians taking drugs to New York. Conversely, it was black males going southbound with drugs. (7T 127-2 to 7T 127-23) While on patrol, he often observed troopers sitting perpendicular to the road, at night with the high beams or spot-lights on and trained on the turnpike. (8T 54-12 to 8T 61-9) He often saw a car pulled off to the side of the road by another trooper, with the occupants out of the car, and could tell from the radio transmissions that the stop had not been called in. (7T 73-9 to 7T 83-8). Sometimes he would stop to render back-up in these situations, only to be waved off by the trooper making the stop. In some of those situations he would observe a trooper known to engage in profiling pull up to assist and not be waved off.
From memory, unaided by access to any written reports about the incident, Ruff described a profile stop in which he participated on the second or third night after his transfer to the Newark Turnpike barracks. (7T 58-7 to 7T 60-22) Ruff was assigned to ride with Trooper Nicholas Monticello; Monticello was supposed to orient Ruff and familiarize him with the area of patrol. (7T 58-7 to 7T 58-23)
According to Ruff, Monticello and he parked perpendicular to the roadway at a U-turn during early morning hours. (7T 61-9 to 7T 61-19; 7T 65-12 to 7T 65-19) Monticello trained the head-lights and the spotlight onto the turnpike. (7T 62-3 to 7T 62-25) A car passed them, and Monticello pulled out and pulled it over. (7T 63-18 to 7T 65-1) Ruff testified that the car was pulled over in a mile to a mile and a half at most. Id. Monticello did not radio in the stop initially. (7T 67-23 to 7T 68-6) The vehicle contained three occupants, all of them black. (7T 61-1 to 7T 66-4; 7T 69-8 to 7T 69-13) It was not until after a search was made, drugs found, and the people were arrested and in hand-cuffs that Monticello called the station. (7T 71-20 to 7T 73-8)
No summons for motor vehicle violations was issued at road-side by Trooper Monticello and Ruff was not present back at the barracks when the arrested individuals were processed. (7T 83-14 to 7T 84-22) The first that Ruff became aware of an allegation that the car was traveling at a high rate of speed, i.e., 64 mph, was in court, in the present case. (7T 65-2 to 7T 68-12) The car did not appear to Ruff to have been speeding or otherwise violating the law, and Ruff remembered nothing about its speed or operation that made it stand out. Id. Ruff also testified that he observed numerous profile incidents involving Trooper Monticello and that he even backed him up on occasion.
In an attempt to rebut the testimony of Kenneth Ruff, the State called Trooper Monticello and produced for the first time the investigation report on the incident that Ruff had described from memory. (Da 56) Ruff had not seen this Investigation Report at any time prior to his testimony. (7T 133-14 to 7T 134-23)
Trooper Monticello claimed to have paced the vehicle for over a mile to establish its speed at 64 mph. But the report showed that the distance between the point of first observation and the actual stop was 1.1 miles. (18T 126-11 to 18T 127-22; 18T 131-17 to 18T 170-23)
Monticello's allegation that 64 miles per hour was a "high rate of speed" met with incredulity from Col. Pagano; he could not comprehend how Trooper Monticello could have considered 64 mph a high rate of speed: "Of course that's not a high rate of speed." (70T 88-12 to 70T 88-20; 70T 91-12 to 70T 94-8)
Ruff received DITU training from Trooper David Cobb. (7T 86-23 to 7T 87-5; 7T 88-7 to 7T 88-14) Their stops followed a pattern. (7T 86-23 to 7T 87-5) The patrol car was positioned perpendicular to the turnpike before each stop. (7T 93-25 to 7T 94-11) Cobb explained to Ruff that you could always find a reason to stop a vehicle. (7T 95-12 to 7T 95-18; 7T 96-4 to 7T 96-16) Of six or seven stops made on the day of DITU training with Cobb, five or six had multiple black occupants, and the last vehicle contained white occupants with long scraggly hair and "hippie" appearances. (7T 92-9 to 7T 92-14; 7T 99-2 to 7T 100-16) Cobb taught that blacks, Colombians, and Latinos were most likely to be transporting drugs. (7T 101-2 to 7T 103-6) He mentioned rental cars and the direction of travel. He told Ruff that Hispanics were involved transporting drugs northbound and that blacks were involved in the southbound re-distribution. (7T 103-12 to 7T 104-2)
Ruff was also taught to look for drug traffickers on a racial basis at a 1987 in service training given by the Patrol Drug Response Unit(PRDU). (7T 30-10 to 7T 32-7; 7T 47-9 to 7T 48-21) There he was taught that blacks and Hispanics were the most likely offenders:
Q: And it was at that training, in-service training I believe you told us that you received training in the profile?
A: That's correct.
Q: What was the profile training that you received at that in-service training?
A: Well, in addition to of course, to our general knowledge that we received in the academy? During this block of instruction? It pretty much said of um, it was pretty much conveyed to us the likelihood of who would be transporting and couriering drugs.
Q: Okay. When you talked about the likelihood of
who would be transporting and couriering drugs. Was there a nationality or a race component to that teaching?
A: Yes.
Q: Okay. What was the nationality? What was the race of these people who were supposedly couriering drugs?
A: Okay, we spoke of um, black males, between ages of 20 and 30. We spoke of Colombians, Hispanic. We also spoke of Latino women. And then, um, well basically (indiscernible) nationality (indiscernible).
...
Q: How did the racial component of the profile fit in with the concept of probable cause that you had learned at the academy?
A: Well, this again like, this was separate of probable cause. That separate of probable cause. What is stated now was you have a vested interest in looking for specific individuals, specific races, specific nationalities aside from you know the probable cause and to effect a drug related arrest. (7T 48-1 to 7T 50-1)
The schedule for 1987 Patrol Drug Response Unit(hereinafter "PDRU") training was introduced as D-25 in evidence. (Da 5) State witness Sergeant Caffrey was one of two instructors who taught that in-service training. (Da 58; 27T 176-18 to 27T 177-13; 27T 179-17 to 27T 179-23) With regard to large highway drug seizures Caffrey's outline notes under the section "Tip-offs and Techniques... Hispanics are mainly involved." Id.
B. STATE POLICE TRAINING AND OTHER MATERIALS
"Operation Pipeline" was a training film on how highway patrol officers should attempt to locate drug couriers among the motor vehicle stops that they made, utilizing techniques developed by the New Jersey and New Mexico State Police.(21) (11T 8-2 to 11T 10-13; 11T 13-4 to 11T 16-20) The film taught techniques of how to search motor vehicles and to obtain the consent of vehicle operators to search their cars. Id. It listed numerous "tip- offs" or "cues" that officers should look for in order to find narcotics. Id.
In analyzing a series of drug arrests, the film cataloged the ethnicity of arrestees, listing Hispanics as "the largest group" of arrestees -- even though race was only known in 41% of the arrests. In the only scene reenacting an encounter between a policeman and a citizen, where the citizen is identified, an Hispanic surname was employed. Id. Sgt Caffrey, testifying for the state would later say that information concerning ethnicity was the type of information that trainees were "to keep in mind." (29T 53-9 to 29T 53-17; 29T 69-4 to 29T 69-9)
The defense obtained and introduced materials relating to Operation Co-Flame and Operation Co-Flame II, (Da 74-79). These operations were coordinated drug interdiction efforts under the guise of traffic enforcement. (31T 77-25 to 31T 99-18) The Co-Flame materials contain an interoffice communication from Lt. R. Long to Major R.D. Trent, the head of Field Operations, of the New Jersey State Police, which acknowledged the pretextual nature of the State Police use of the Traffic Code:
[P]ublic information officers will receive guidelines for suggested news releases from I.A.C.P. coordinators. Again the releases should focus on traffic enforcement and highway safety issues so as not to unnecessarily generate complaints from A.C.L.U. members and other such groups who oppose drug interdiction per se. (13T 148-3 to 13T 149-25; 61T 27-6 to 61T 28-6; Da 79)
The State made no attempt to explain the above.
Other documents uncovered by the defense referred to profiles. The Attorney General's Statewide Action Plan for Narcotics Enforcement was one such document. D-34(Da 135) A follow-up action plan for the year 1993 was introduced as D-35(Da 165) in evidence. The plan created a Statewide Narcotics Task Force and in Directive 6.4, at page 20, required the task force to " ... provide to all police departments specific information concerning current methods of illicit drug transportation, including up to date offender pro-files ..." (DA 159) Directive 6.5 on the same page, directed the Statewide Narcotics Task Force and the State Police to make available to local law enforcement agencies "... training pro-grams concerning the most efficient techniques for identifying drug couriers and for seizing drugs in transport." Id. The document further provided in its Appendix at page 120 that state police and United States Customs Service trainers were scheduled to give 40 hours of drug enforcement training at the State Police Academy in 1987. (Da 164A) Among the topics to be taught were "profiles." (14T 78-9 to 14T 78-22; 16T 7-14 to 16T 7-22) A training outline utilized at the Academy that year, (Da 58)(22), taught that "Hispanics were mainly involved" in some forms of drug distribution. (Da 59) The 1993 version of the Action Plan disclosed that the efforts of the state police to interdict large shipments of cocaine in tractor trailers resulted in the uncovering of, among other things, driver profiles. (14T 112-24 to 14T 116-2; 16T 9-11 to 16T 10-6)
Maj. Modarelli testified that he was unaware of any drug courier profiles developed within the New Jersey State Police. (Da 159; 33T 44-23 to 33T 45-19; 33T 57-2 to 33T 57-4) With regard to the Attorney General's Action Plan of 1987, Modarelli claimed that the State Police had no input at all. Yet Col. Pagano testified that he himself helped formulate the Action Plan. He also said that the New Jersey State Police helped Deputy Attorney General Susswein with the final formulation of the document.
Modarelli could offer no explanation for the type of pro-files gathered under Directive 6.4 or trained under Directive 6.5. (33T 58-15 to 33T 59-1) Rather he claimed to be unaware that any profiles were ever developed. (33T 47-16 to 33T 47-25) He could not account for the type of profiles that were trained at Sea Girt in 1987. He claimed to be somewhat familiar with what was meant by "driver profiles" in the 1993 Action Plan, (33T 45 -1 to 33T 49-25) suggesting that the reference was to a specific and complicated investigation. He admitted that those profiles involved ethnic characteristics. (33T 106-22 to 33T 109-11; 34T 22-9 to 34T 28-10) However, he implied that they related to specific drivers, (33T 45-20 to 33T 49-4; 33T 103-5 to 33T 106-21) although he never presented evidence as to what they were. His testimony indicates that they were more than simply descriptions of individual drivers.
Q: Now, when you were asked questions by Mr. Wintner, concerning this news release and marked D- 63, based on what you just told me, as a part of the overall, ahem, intelligence and investigative processes of the State Police, the language in D-63, on page 3, first full paragraph "This SOP continues the prohibition on stops based on profiles that focus only on personal or physical characteristics, such as race, age, gender or hair style." That same language in connection with what you just testified to, there, the profiles of the drivers, certainly took into consideration the race and ethnic background, but it wasn't the only thing you concentrated on, it was a vast intelligence mechanism, including the type of truck, the road they were on and things of that nature.
A: There were many investigative factors that were taken into consideration, yes.
Q: But that testimony pertained to the 1993, ah, D-35(Da 165), at page 25, is very consistent with D-63, is it not? - The paragraph I just read. And that is to say that the profiles included those aspects, but they did not focus only on that. It was a much more complex, uh, identifying system, including the rigs and the method of travel, and things of that nature you identify, isn't that correct?
A: That's correct. (34T 27-11 to 34T 28-10)
Deputy Attorney General Ronald Susswein was also called by the state to testify about the Attorney General Action Plan. He drafted the plan. (36T 17-8 to 36T 17-12) A directive in the plan, such as 6.4 or 6.5, was a mandate, which was to be followed. It was like a disciplinary rule for lawyers. (36T 19-15 to 36T 23-9)
It was clear to Susswein that "offender profiles" referred to in Directive 6.4 could not include race. (36T 25-15 to 36T 25-24) Directive 6.4 was never implemented in the way that he envisioned, i.e., current "offender profiles" would be disseminated in a news letter. (36T 52-1 to 36T 52-17) Susswein was shown a memorandum, (Da 23), relating to the directives, which stated that Directive 6.5, the Training Directive, was about to be completed. (36T 114-5 to 36T 115-8) He was asked how that could happen, if Directive 6.4, which involved the accumulation of the information to be trained, was not complete or substantially complete.
Q: So it's approximately a week before that envisioned training? Based on your understanding of the interaction between 6.4 and 6.5, would it have been possible to do 6.5 without 6.4 having been complete or substantially complete?
A: Absolutely. A, a, again 6.4 contemplated in my mind a publication, a news letters, a bulletin. You could go and do training programs without having to have a monthly or bi-monthly bulletins.
Q: Okay. But, I, I, I follow what you're saying. Let me, let me ask that another way. Would it have been possible for them to do 6.5 without having uh, accumulated information, be it in a bulletin or other form, on the methods of elicit drug transportation including up to date offender profiles and areas within vehicles in which elicit drugs were properly concealed?
A: Yeah because there were troopers who were trained and were fairly expert in these issues whether or not there was compliance with 6.4 or not.
Q: Okay. So if I understand you correctly then, are you saying that, there were troopers uh, even before the ...Action Plan of 1988 was completed or promulgated that were familiar with uh, uh, offender profiles, areas of concealment and methods of drug transportation.
A: Absolutely. (36T 115-8 to 36T 116-7)(emphasis added)
Mr. Susswein could not tell the Court what those profiles were. He testified that Directive 6.4 was in phase two of the Action Plan and that phase two included the easy to accomplish directives. (36T 70-7 to 36T 70-9