[William H. Buckman]
William H. Buckman Law Firm
Phone: 856-608-9797 / Fax: 856-608-6244

Brief On Behalf Of Defendants DaCosta, Jackson, & Lockhart





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) Deputy Attorney General Richard Carly or Captain Turner of the State Police would have assigned people to do them, Susswein said. (36T 71-12 to 36T 71-23) The State never called either of these individuals to testify. According to Susswein, the actual training mandated by Directive 6.5 would have been done by "Sergeant Caffrey, people like that ..." (36T 52-1 to 36T 53-2; 36T 109-20 to 36T 110-7)

Trooper Bauman testified that the issue of profiling was discussed at the 233rd Drug School, although its itinerary, P-ll(Da 20) in evidence does not refer to it. (25T 26-4 to 25T 26-13) Trooper Bauman claimed that Deputy Attorney General Susswein taught them that there is no such thing as a profile that is legal to use. Id. Susswein testified to the contrary. (36T 25-10 to 36T 26-6)

Colonel Pagano was able to shed no new light upon the references to profiling in the Attorney General's Action Plan. "I didn't want to use anything that even looked like a profile," Pagano said. (70T 6-12) Still, despite his involvement in the preparation of the Plan, the references remained in it. (71T 169-4 to 71T 171-18) He was aware of Directive 6.4 and 6.5 of the Plan. He claimed that 6.4, as it applied to the New Jersey State Police, referred to train and plane profiles that were federally funded. (70T 5-18 to 70T 6-9) According to Pagano, they had nothing to do with race but were related to baggage ticketing. Id.

Colonel Pagano disagreed with Deputy Attorney General Susswein that the state police had their own profiles before the Attorney General's Action Plan. (70T 73-1 to 70T 78-4) He could not explain the meaning of the 1987 training which took place at Sea Girt, was given by the state police and customs service, and provided 40 hours of training including profiles. (70T 74-14 to 70T 77-8) No witness called by the state was able to explain what this training was and what was included in these profiles.

C. Profiling And The Drug Interdiction Training Unit

What the DITU was and what it did occupied a major portion of the trial below. Several former members of the DITU were summoned by the state to testify.

Det. Timothy Grant was an original member of DITU. He and Trooper Cobb were among the troopers who testified concerning its activities. There were ten original members and they were trained during a two week start-up period in 1987. (20T 116-15 to 16) Grant and Cobb recalled little of what they were trained during their training period. (19T 171-1 to 10; 19T 171-15 to 19; 19T 172-10 to 173-6; 38T 54-7 to 17) Nor could DITU's founder, Colonel Pagano, recall much on this point. (69T 77-22 to 25; 71T 51-15 to 71T 52-16)

Former members of DITU often contradicted each other, themselves, and the evidence. Pagano testified that he personally addressed the original ten members at their first meeting. Grant recalled this; (20T 98-6 to 11) Sergeant Brian Caffrey denied it. (32T 92-17 to 22) Grant testified that he was not instructed on what to train troopers. (19T 170-19 to 25; 19T 172-21 to 173-3) Grant claimed that the interdiction of drugs was not emphasized (19T 177-23 to 19T 178-16) and that he would not discuss his knowledge about interdicting drugs with a trooper he was training. There was more emphasis on safety. (70T 110-6 to 7. Yet, only one category out of 24 on the surviving DITU checklists, allegedly created by Sgt. Brian Caffrey, related to "safety practices". (Da 62-69) The remaining 23 were search and seizure related. Id.

While with PDRU (Patrol Drug Response Unit), Caffrey was detached to DITU at its inception as a pilot project. On direct examination he testified that he was the assistant supervisor: "I was assigned as the assistant supervisor" (27T 168-9); he helped formulate the unit; he was chosen to head the unit(27T 173 -5 to 27T 173-20) When asked over and over again by defense counsel if he was not in fact the assistant supervisor of the DITU, before it was made a permanent unit, he denied that he held that position. (30T 42-20 to 30 T 42-21; 30T 39-8 to 30T 39-14 and cross examination of Caffrey generally) Sgt. Cobb thought Caffrey was his supervisor at that time. (38T 45-2 to 38T 45-5; 38T 54-2 to 38T 54-6)

Caffrey represented himself to have been qualified as an expert in the field of drug interdiction in court, but in response to questions by defense counsel could not recall the name of a single case in which he had testified as an expert, (29T 5-2 to 29T 5-5) nor any judge who recognized him as an expert, (29T 5-22 to 29T 5-24) nor any of the attorneys involved in any of the cases. (29T 5-6 to 29T 5-21)

Even after the formulation of the Attorney General's Action Plan for Narcotics Enforcement, establishing narcotics enforcement as the number one priority for all New Jersey law enforcement agencies, Caffrey denied that it was the number one enforcement priority for the New Jersey State Police.(23) (30T 12-9 to 30T 12-16) In fact, he denied that the number one priority of the New Jersey State Police Drug Interdiction Training Unit was to train the New Jersey State Police to interdict drugs. (30T 12-4 to 30T 19-20; 32T 104-14 to 32T 104-22) In later testimony, his boss, Col. Pagano, could not explain these denials. (69T 50-7 to 69T 60-9; 69T 69-2 to 69T 69-21; 69T 76-15 to 69T 77-7)

Caffrey told the Court that weekly progress reports were sent to the colonel. (30T 42-22 to 30T 42-25) Yet neither Caffrey, Col Pagano, nor any representative of the State was able to produce these reports.

Caffrey testified concerning the lesson plan for PDRU Training in the 1987 in-service, P14 in evidence. (Da 58) The lesson plan had been approved by the State Police Academy staff. (27T 182-4 to 27T 182-6) The training concerned road stops involving large amounts of drugs or currency. (Da 58-61) Under the section titled "Tip-offs and Techniques" he listed the fact that Hispanics are mainly involved.(Da 59) The section also indicates that everyone is involved. Id.

Caffrey claimed that he actually used a flip-chart to conduct this training. (27T 182-6 to 27T 182-8) Caffrey did not know where this flip-chart is, if it exists, or whether it may have fallen apart. (27T 185-5 to 10) Sgt. Cobb recalled more than one flip-chart, (39T 20-15 to 24; 38T 57-9 to 19) kept in a case in his Bordentown Office as late as 1991. Caffrey claimed he made a mistake composing the outline although the outline was approved by the State Police Academy staff. (31T 47-14 to 21; 35T 115-18 to 35T 121-18) He claimed the point refers to the fact that at that time, Colombians and Cubans were largely responsible for importing cocaine into the United States. (28T 73-20 to 28T 77-19) Yet the Pagano report referred to Cubans and Colombians and their activity within New Jersey. (Da 43) In fact, this is the type of intelligence, that Col. Pagano used to justify the large proportion of minority arrests by the New Jersey State Police on the turnpike. The Court below recognized that the Pagano report refutes Caffrey's explanation of the meaning of his training outline, calling Caffrey's credibility into question. (70T 191-13 to 70T 192-5)

There was a two week training for the DITU trainers, where Caffrey said they saw slides of hidden compartments, a film about crack, "Operation Pipeline," and heard the same lecture as was delivered at the 1987 in-service, the one that Kenneth Ruff testified taught him the race of those to look for. Then there was a week of field exercises in areas of high narcotics arrests. (28T 87-5 to 28T 97-12) After their training was completed, it would be the practice of DITU to meet one day a week, when they were not training other troopers, and patrol together in an area of high narcotics activity. One such area was the "apron" of the Delaware Memorial Bridge, known as "Cocaine Alley". (28T 9-19 to 22) Caffrey said he has no record of any of the training given to the DITU trainers. He did not know where any of those training materials were. (Pa 10; 30T 33-15 to 30T 34-8)

In 1989, an SOP was promulgated making DITU a permanent unit. Caffrey became it's supervisor and was willing to admit this in cross-examination. In 1989, there were also some significant changes in personnel in the unit and more training of the trainers took place. No materials from this training were preserved. (28T 121-4 to 28T 125-11) The SOP creating DITU (D 41) requires that statistics be kept for the unit and that an impact evaluation be prepared. Caffrey claimed that he sent the statistics for the unit to the colonel, but he did not know where they are. He never did an impact evaluation as required by the SOP. (30T 42-11 to 30T 49-3) Despite numerous defense requests the State was unable to produce these materials.

Actually, Sgt. Caffrey testified that he did not believe that seventy-five percent of the arrests on the turnpike were of blacks.(24) If he thought that to be the case, he would have reviewed the unit's procedures. (30T 118-4 to 30T 118-23) He said that he told troopers to indicate race on their patrol charts for people stopped. (30T 110-8 to 30T 110-13) Trooper Cobb testified that Caffrey never gave those instructions. (39T 164-18 to 39T 165-5)

Caffrey testified that he did not know what a potential drug courier is because that would be using a profile. (27T 98-20 to 27T 98-25) Caffrey admitted that a trooper could not stop every vehicle on the turnpike that was committing an infraction. (28T 106-19 to 28T 106-22) He was never really able to explain which vehicles he would stop and which he would not. When questioned about how trainees were to use the information concerning the age, sex, and ethnicity of offenders, stressed in "Operation Pipeline," a training film that he used, he said that they were factors "to keep in mind." (29T 53-9 to 29T 53-17; 29T 69-4 to 29T 69-9) He never was able to explain how "keeping something in mind" was different from having information and using it or why he would provide this information in training if it were not to be used.

Caffrey went on to state that such a policy of profiling would be ineffective, because if you only targeted Hispanic males, you would miss a lot of seizures. It sounded a lot like the outline he created for training. Hispanics are mainly involved, but other ethnic groups are as well. (27T 186-19 to 27T 189-17) It is profiling to stop every Hispanic in a rental vehicle that a trooper sees and search him, but it is something that he can keep in mind. To Caffrey, if a trooper does not stop and search everyone that he sees that fits the profile, he is not profiling.

Caffrey testified concerning the news release of the Attorney General relating to the promulgation of SOP-F55(Pa 62) continuing the prohibition on stops based on profiles that focus only on personal or physical characteristics such as race, age, gender or hair style. (31T 4-12 to 31T 5-11) He said it reflected the policy of the state police to prohibit all profiles as they relate to motor vehicle stops, even those that do not relate to those characteristics. Yet the Attorney General's Action Plan mandated State Police Training at Sea Girt to include "profiles"? Caffrey could not explain. (31T 4-12 to 31T 11-19)

Sgt. Caffrey had an extremely difficult time reconciling

his tip-offs and techniques, (clues that criminal activity was taking place) with his testimony that none of them are considered before the motor vehicle stop, in deciding which violators to stop. During cross-examination he was asked whether a long list of potential observations that a road trooper could make would be considered tip-offs of potential drug couriers. He described which would and which would not be tip-offs. At a later point in cross- examination he was given a list of observations he acknowledged to be tipoffs and asked if they would constitute probable cause to search a vehicle he had stopped. He answered no. He was asked if they constituted reasonable suspicion sufficient to ask for a consent to search. He answered that they would. An additional tip-off, furtive movement, was added to the hypothetical. Caffrey said that he would now have probable cause to search the vehicle, at least in the area of the movement. He was then asked if he would not consider the very same tip-offs which gave him reasonable suspicion sufficient to ask for consent to search in deciding which violators to stop. He testified that he would not use them. He went on to testify that even if he had observed sufficient tip-offs to provide him with probable cause to search a vehicle he would not use that information in deciding which motor vehicle violator to stop. He would not choose to stop a motor vehicle violator against whom he had probable cause of a crime over a simple traffic offender. (31T 11-21 to 31T 21-16)

Trooper Grant had made and later Col. Pagano would make different concessions. They would choose the car fitting the profile in choosing among the many motor vehicle violators to stop on the turnpike. (20T 51-22 to 20T 53-21; 71T 19-6 to 71T 20-23)

During the direct examination of Sgt. Caffrey, defense counsel and the Court were told for the first time that in 1989, when Caffrey took over as supervisor of the formal DITU unit, he created checklists for instructors to use. (28T 108-1 to 28T 113-15) Caffrey said he developed them in order to ensure that the instructors went through all the areas on the list during training. (28T 114-15 to 28T 114-25) Cobb testified the checklists were developed as a joint effort of DITU members. (37T 95-21 to 37T 96-1) Only then did the State turn over the checklists that survived. Some of the checklists contain trainer comments that are quite enlightening. (Pa 11-12)

On February 7, 1995 Caffrey testified that DITU trainers were not taught to teach troopers to enforce the motor vehicle laws more strictly. (30T 124-3 to 30T 124-8) Yet, on February 16, 1995 Caffrey had to acknowledge explained the trainer comment on the checklist of Trooper Sobolawski to the effect that Sobolawski was unaggressive in stopping cars and was only using radar. (32T 147-2 to 32T 154-20) Trooper Grant also testified that he was instructed to teach a more aggressive enforcement of traffic laws to trainees. ( 20T 110-2 to 20T 110-22) Cobb, on the other hand, denied teaching this. (39T 151-5 to 39T 151-17)

Caffrey also testified that DITU trainers did not have lesson plans or training materials that they employed during training. However a training checklist for Trooper Nitto trained by Trooper Litz in August 1989 bore the following comment: "Very interested. Came in from patrol to see lesson plan with Marine Police Officer Lang." (Da 63) Caffrey on the other hand said there was no lesson plan. (32T 42-2 to 32T 42-15) Trooper Litz also trained Trooper Bietka on July 24, 1989. The comment on his checklist found in D66A(Da 62) reads: "Very interested. Even asked for copies of everything." (Da 62) Caffrey claimed not to know what Litz could have meant by "everything." (32T 44-10 to 32T 46-6) Yet he never discussed with Litz the inclusion of incomprehensible statements in his training records. (32T 42-16 to 32T 43-2; 32T 46-7 to 32T 46-10)

Similarly D51F in evidence(Da 70) an announcement for DITU training on commercial vehicle interdiction, which took place in March 1990. The announcement states: "All course materials will be supplied." Id.

When interviewed by WOR Television for its news series "Without Just Cause," Caffrey said that when a New Jersey State trooper on the turnpike searches a car he almost always finds something, at least if he goes to the trouble to search the whole car. (P 69A) The DITU checklists show on the other hand that most searches were fruitless. (Da 62-72) Those Checklists show many a consent search with no resulting arrest, from which one may infer that the stop and search yielded no contraband. Former Trooper Wilson testified that in attempting to make arrests through profile stops a trooper would stop and search 20 to 30 cars before finding one with contraband. (10T 103-19 to 20)

"Without Just Cause" aired in late 1989. On January 2, 1990, DITU trainer Geleta trained Trooper Fash. The checklist for this training is found as the first list in D-66C(Da 65) in evidence. Trooper Geleta wrote:

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)

Presented with the clear meaning of this language, and the nature of the television expose, Deputy Attorney General Susswein testified that Trooper Geleta's training on this issue was inadequate:

Q: Mr. Susswein would you not agree that the statement that I just related to you, would become a little more of a concern to you then just, it just being incomplete, if it were made by a trainer to a student body that was saying to the trainer - trainer we're concerned about making road stops because we're being, we as the State Police are being criticized for stopping minorities, of black and Hispanics, and the trainer just said, you can stop anyone you want as long as you use Title 39?



A: I, would as a trainer and recommend to other trainers that if they were confronted with the question or observation from the class, they should point out at that point, that you cannot base a stop on race or ethnicity. You cannot draw inferences of criminality, criminal behavior from race or ethnicity. And as a trainer, my response would be to say that immediately in response to, ya, ya, know that. I must tell you in my own lecture, my subject where I talk about the race and ethnicity probably comes a few minutes after I start talking. (36T 103-14 to 36T 104-5)



Mr. Susswein testified that training is the single most efficient method to modify the behavior of law enforcement personnel. (36T 171-1 to 2) When lecturing the State Police as part of a multi hour program Susswein never bothered to listen to or monitor the other lectures given during the formalized training. (36T 171-3 to 6; 36T 171-20 to 36T 173-10) In his own words he came in "did his shtick" and left. Id.

Susswein testified that he always trained the State Police that they could not use race or ethnicity in their decision to make a motor vehicle stop. In his opinion, they could use other factors, such as whether the vehicle was a rental vehicle or an owned vehicle, but he never got that specific in his training "that would be what a Sergeant Caffrey would discuss as opposed to what I would discuss as what you can't do usually." (36T 107-4 to 36T 110-5; 36T 110-5 to 7) Susswein contradicted Caffrey when he testified that in general, a police officer could bring profile information, if it did not include race or ethnicity, into his decision to stop a car as long as he met the requirements of Prouse.

At one point in his testimony, Colonel Pagano conceded that he could not say that no troopers were engaged in racial targeting, but he insisted there was no such Division policy. (71T 113-3 to 71T 113-17) He made a further concession when he said that he could not tell the Judge whether there was or was not profiling, he could tell the Court about training. (71T 131-19 to 71T 132-25) Yet while Pagano insisted that he could talk knowledgeably about the integrity of State Police training he had very little knowledge of the specifics of how DITU functioned and went about its training. (70T 57-10 to 15; 70T 60-4 to 70T 61-7; 70T 62-16 to 19; 71T 44-5 to 71T 46-8; 71T 51-15 to 71T 52-16) Moreover Pagano conceded that he had no knowledge of the Jamaican Posse training and he had never heard of the Jamaican training film with its fictionalized, inflammatory material. (71T 158-16 to 71T 159-6) He had no knowledge that he shared with the Court about the Spring 1987 In-Service Training conducted by Sergeant Caffrey. He had no knowledge of or explanation for the training mentioned in the Action Plan, which included profiles. (70T 71-31 to 70T 73-10; 70T 75-1 to 70T 76-21)

In fact, Col. Pagano conceded that questions about the existence of racial profiling still linger in his mind, even more now than before. He was asked whether the "Pagano Report" convinced him that charges of racial discrimination were without merit:

Q: ... I take it after reviewing that report you came to the conclusion that the charges, if you can call them charges, from the WOR documentary were without merit.



A: No. I came ...



Q: That did not resolve the issue before herein what the study was?



A: I came to the conclusion that the records that were analyzed did not give me a conclusive answer to whether or not these kinds of allegations were valid.



Q: Alright. So a question lingered in your mind at that point, right?



A: It always lingers in my mind.



Q: It still lingers to this day then, sir, right?



A: Well, the more I'm questioned and the more I review my recollections and those things that are available to me, the more I'm either able to answer your questions or the more it lingers in my mind.



Q: Well, sir, the numbers and statistics and so forth that you might have really needed were not available to you even after the analytical report was done, isn't that what you just told us?



A: The justification to authenticate your proposition was not available to me. It wasn't ...



Q: And you didn't do a, as far as you're aware, as far as what you can tell us from your recollection you did, there were no further studies about State Police were done with respect to stops and searches and so forth.



A: Correct.



(71T 156-24 to 71T 158-1)





D. Expert Corroboration of Effect And Purpose

James Fyfe, Ph.D. was qualified by the Court as an expert in police science and police procedures. Dr. Fyfe was a New York City Police Officer for 16 years. (58T 5-15 to 58T 5-18) He worked as a patrolman on foot and in a car for 7 years. (58T 5-23 to 58T 6-5) He taught recruits and police officers at the New York City Police Academy and wrote the curricula for their training. (58T 7-6 to 58T 7-22) Later, he wrote the New York City Police Academy curricula for its Police Managers Training Unit and was then commander of it. (58T 7-22 to 58T 8-12) Dr. Fyfe now works as Assistant Professor of Criminology at Temple University (58T 3-13 to 23) and has testified numerous times, both on behalf of the police and in support of litigants suing police in federal and state courts. (58T 9-25 to 58T 10-14; 58T 13-12 to 58T 17-10) The major focus of his work has been on how police administration affects the discretion of the police officer in the field. (58T 11-11 to 58T 11-16) During his career as a police officer, he personally made between 1,000 and 2,000 car stops and supervised other officers who made them. (58T 28-5 to 58T 28-15) He participated on a pro bono basis in this case, because of the importance he attached to it. (58T 46-25 to 58T 47-12)

According to Fyfe training must emphasize to officers that what is taught in the classroom is to be carried to the street, to avoid the "forget what you learned at the academy syndrome." (58T 50-21 to 58T 51-1; 58T 173-9 to 58T 174-17) Supervisory follow-up must ensure that practice comports with training. 58T 51-1 to 17. Particularly where crackdown programs (like DITU) are at issue such training and follow-up are essential to prevent constitutional excesses. (58T 162-20 to 58T 163-7)

The whole strategy of DITU/"Operation Pipeline" was to get people to waive their rights via consent searches. ( 58T 62-17 to 23) Fyfe believed that requires enhanced supervision because it risks encouraging unconstitutional action. (59T 21-12 to 59T 23-1; 59T 83-1 to 59T 85-6; 59T 124-9 to 59T 125-2) Generally SOP's alone will not counteract flawed training, rather it is the actively communicated expectations of the police administration that affects the conduct of officers on the street. (58T 56-19 to 58T 57-14)

To successfully monitor police crackdown programs, Fyfe testified that retention of police training materials is necessary (1) to facilitate analysis at a later date if the training or police officer conduct is questioned, (2) to facilitate correction of mistakes in the future, and (3) to illuminate a police agency's policy, as training is a manifestation of policy. (58T 51-6 to 17; 58T 58-8 to 58T 10-23; 58T 102-14 to 24; 61T 164-19 to 61T 165-13)

In the opinion of Dr. Fyfe, "Operation Pipeline" emphasized confiscation of drugs, and neglected the effect of the program on the public. (58T 61-5 to 58T 62-7) Its message to the patrol officer was to use traffic stops as a subterfuge to accomplish widespread searches of cars. (58T 62-17 to 58T 62-23) Fyfe also criticized the use of ethnicity in the film. (58T 62-24 to 58T 63-18; 58T 74-21 to 58T 75-12) When asked about Caffrey's statement that "ethnicity is something to keep in mind" Fyfe said that it would be like telling an officer that it's a cue to use in stopping along with a motor vehicle violation. (58T 65-1 to 58T 65-25) Dr. Fyfe testified that trainers should not teach what they do not intend their students to act upon. (58T 74-3 to 58T 74-20) Fyfe testified that P-14(Da 58)(Caffrey's training outline) implies that officers should emphasize Hispanics in enforcement relating to shipments of large quantities of drugs. (58T 85-17 to 58T 87-15) It reinforced "Operation Pipeline." (58T 87-16 to 58T 87-20) Although the PDRU Lesson Plan, P14(Da 58), said that troopers should not make pretext stops, it seems to be a lesson plan for making pretext stops. (58T 87-8 to 19; 61T 55-7 to 61T 55-17) Similarly, Fyfe felt that the press release discussion in Co-Flame II is other evidence of encouraging subterfuge. (58T 130-1 to 58T 132-1) In fact, it compares to the Fash training checklist. (Da 65; 58T 130-21 to 58T 131-4)

Dr. Fyfe testified that the Jamaican Posse training would encourage the notion that blacks in general, not just Jamaican Posse members were very dangerous. (58T 92-3 to 58T 95-10) There was no guidance as to how to distinguish between Jamaican Posse members and all other Jamaicans or for that matter all black people. (58T 95-17 to 58T 96-23) The film was stereotyping, unprofessionally produced, and needlessly inflammatory. (58T 97-22 to 58T 98-7) The fact that Douglas himself was part Jamaican would only strengthened the stereotype because that would enhance the credibility of the training. (58T 98-20 to 58T 99-8)

Dr. Fyfe explained that the DITU checklists did not capture the proper data. (58T 105-13 to 58T 107-7; 58T 113-16 to 18; 59T 60-1 to 59T 61-5) Although it is clear that many searches were fruitless, one cannot determine from them how many or what percentage of the searches were fruitless, from an examination of those checklists. (58T 106-17 to 58T 106-22) It is extremely important to be able to determine what the trainers were trained since they were to train the entire patrol section of the New Jersey State Police. (58T 111-15 to 58T 113-16) In Dr. Fyfe's opinion, the DITU program would not meet Commission on Accreditation of Law Enforcement Agencies (CALEA) standards. (59T 118-12 to 59T 124-8)

With regard to the type of monthly statistics represented by D-30(Da 94-130), Dr. Fyfe observed that no information as to the quality of the work was recorded. (58T 117-4 to 58T 117-20) Therefore, that type of statistical review encourages discriminatory actions by emphasizing only numbers. (58T 117-21 to 58T 118-8; 58T 163-8 to 58T 164-2) Expectations of the administration affect conduct. (58T 55-22 to 58T 58-7) They expect a good criminal program, but base it only upon numbers, supra. Fyfe noted that Sergeant Caffrey's public statement to WOR News, as well as Col. Pagano's, sent a message that "we'll back you up" if you are questioned. (59T 128-24 to 59T 150-5)

Dr. Fyfe also addressed other statements made by Colonel Pagano. Id. His statement that we don't stop people based on race alone is ambiguous. (59T 129-20 to 59T 130-6) It could lead road troopers to believe that they can use race if there are other considerations as well in making stops. Id. His statement that he was most concerned with stopping crime, not protecting rights was consistent with this. (59T 137-11 to 59T 138-17; 59T 147-2 to 14) His statement that he does not know how many fruitless searches were made is also important. (59T 132-3 to 59T 133-2) It tells officers that they do not have to be concerned with what they do since he is not. Id. The position Pagano took when faced with a figure of 76% black arrests was not reasonable since he did not know what the police were doing. (59T 132-3 to 59T 133-2) The percentage is so high that it called for an objective investigation. (59T 145-15 to 59T 147-1)

Dr. Lawrence Sherman testified for the state as an expert in its surrebuttal case as an expert in criminology. His employment was limited to reviewing Dr. Fyfe's report and the materials submitted to Fyfe. ( 67T 84-14 to 67T 85-14)

According to Sherman, Dr. Fyfe's testimony that the use of ethnicity in the "Operation Pipeline" training film would encourage racial targeting is certainly an informed hypothesis. (67T 108-5 to 8; 68T 26-18 to 68T 27-12) It is an informed hypothesis from someone whose opinion, insight and experience he has respect for. (67T 107-22 to 25; 68T 22-9 to 12) His criticism--the conclusion is untested. He was not moved by the missing data attendant the film with regard to ethnicity. (67T 108-17 to 67T 110-19) He did not think that it mattered. Id. Even if the training film had taken the position that the majority of a hundred race identified arrests were Hispanic but that 900 arrests were not race identified his opinion would not change. Id.

Dr. Sherman did not know what records were missing. He did not have a clear picture. (67T 117-6 to 67T 118-3) He said that if no records were kept of pilot project training, it would violate a CALEA standard. (67T 123-19 to 22) The Court asked Dr. Sherman to assume that not only did DITU not retain training materials, but that it never had any training materials. (67T 119-4 to 67T 124-14) Did he disagree with Dr. Fyfe that failure to have and maintain them is a breach of a standard? Id. Sherman disagreed. "It is done." Id. The Court further asked Dr. Sherman how the command system of a police department, or the Court could judge the propriety of training if what he said were the case. (67T 120-24 to 67T 121-20) "Most evidence in this case was I don't remember." Id. Dr. Sherman was not prepared to answer since he was not hired to offer opinions on state police training and, therefore, did not conduct a study on it. (67T 122-4 to 17) Dr. Sherman conceded that he has frequently recommended more pro-active testing, especially in the case of crackdown programs. (67T 132-21 to 67T 133-2; 68T 211-9 to 68T 211-18)

After reviewing the 1987 In-Service Training Outline, P-14(Da 58), Dr. Sherman could not say that there was no encouragement of racial profiling provided in that training. (67T 126-10 to 67T 126-13) There very well might have been. "We were not there." (67T 126-12 to 15; 68T 163-14 to 24)

Dr. Sherman said a crackdown program could be maintained without abuse, if there is careful management. (68T 223-6 to 68T 223-17) He made no effort to establish that there was careful management by the New Jersey State Police. (68T 231-13 to 18; 67T 117-6 to 18)

E. Surrebuttal Corroboration Of A Profile

Dr. Elmo Randolph is an African American who practices dentistry in East Orange, New Jersey. During the four year period from 1984 to 1988 he drove a gold BMW and was stopped by the State Police approximately 100 times, on the turnpike, which he traveled to commute to his office. (57T 27-4 to 57T 32-2) He was never issued a ticket or a written warning on any of those occasions. (57T 39-1 to 57T 39-11)

While traveling the turnpike he would see the troopers sitting perpendicular in a cutout where Route 80 feeds into the Turnpike. (57T 32-6 to 20) The troopers would sit near a toll booth to observe traffic.(D112, D113, D114, D114A, D115) (57T 124-2 to 24; 57T 127-2 to 21)

After dark Troopers would train their headlights and/or spotlights onto the highway so that they could look into cars. (57T 42-20 to 57T 51-19) Dr. Randolph frequently observed troopers stop black motorists at night using that method.

Most of the times that he was stopped, the trooper would obtain his driving credentials and go back to the troop car. (57T 33-17 to 57T 35-1) He would return shortly with the credentials to the passenger's side of the vehicle. Id. Dr. Randolph would lower his window to be handed the credentials, and the trooper would take that opportunity to look around inside his car. (Id; 57T 75-4 to 25) He would be allowed to go on his way, after brief questioning, in most of these instances. (Id; 57T 42-13 to 57T 42- 17)

But, on several occasions, he was asked to open his trunk by the trooper. (57T 35-2 to 57T 35-14) The troopers never asked to search his trunk, but rather they asked him to open it or if they could look in his trunk. (57T 35-20 to 57T 36-6) On one occasion, when he refused to allow the trooper to look into his trunk, the officer returned to the troop car and sat there with his credentials for 15 or 20 minutes before returning them to Dr. Randolph and allowing him to go on his way. (57T 35-15 to 19; 57T 36-16 to 57T 38-10) Dr. Randolph learned that it was easier to simply allow the troopers to look in his trunk than to assert his constitutional rights. (57T 38-11 to 57T 38-25) He could not afford to be late for his patients.

Dr. Randolph testified that he was not stopped by just one or two individual troopers. (57T 43-2 to 57T 43-14) Over the years, he was stopped by many different troopers. Id. He recalled one particular trooper because he had been stopped by him several times and he remembered him to be especially short. (57T 43-3 to 4) He described the approximate time and location of an accident on the turnpike at which he stopped to assist. (57T 43-13 to 57T 66-19) That trooper was present. The State presented nothing meaningful to contradict the testimony of Dr. Randolph.

On the occasion of one stop, Randolph remembered a rather insensitive comment by a trooper that seemed particularly telling. (57T 42-7 to 23) In response to questioning, Randolph revealed his occupation, dentistry. Id. The trooper then secured permission to search the trunk of Randolph's car where he found Randolph's dentistry magazines. Id. "You really are a dentist," said the trooper. Id.





LEGAL ARGUMENT



I. The Defendants Met The Correct Burden Of Proof In Establishing

That They Were Victims Of Racially Motivated

Selective Enforcement





The present case stands at the confluence of the Fourth and Fourteenth Amendments, raising issues that invite analysis under both sets of protections. See, State v. Kennedy, 588 A.2d 834, 838, 247, N. J. Super. 21 (App. Div. 1991). The court in Kennedy placed emphasis on the equal protection clause of the Fourteenth Amendment declaring that charges of "racial profiling" resonate most truly in the Fourteenth, not the Fourth Amendment. Reminding the court of the general avoidance of inquiry in Fourth Amendment cases into the subjective mind set of the officer, the state in Kennedy argued that the existence of some possible reasonable basis for a motor vehicle stop must end the inquiry, regardless of whether the constable was practicing intentional discrimination against a minority group. The Kennedy court rejected the state's position on two rationales. First, the court found that the charge of racial profiling sounded more in the Fourteenth Amendment than the Fourth; second, the Kennedy court stressed that an inquiry into a policy or course of conduct would transcend any probe into the hidden thoughts of any individual officer:



...[h]aving it's roots in the equal protection and due process clauses, the claim of selective prosecution is somewhat foreign to Fourth Amendment interests and analysis. The Fourth Amendment proscribes unreasonable actions, not improper thoughts...



However, different considerations are applicable where, as here, the claim is made that a police agency has embarked upon an officially sanctioned or de facto policy of targeting minorities for investigation.... Defendants do not seek information concerning the hidden thoughts or motivations of individual police officers; instead, the inquiry they request focuses upon the existence or non-existence of a course of conduct, one that presumably can be proven or disproven by objective evidence. Id. at 838, 247 N.J. Super 21. (emphasis added).



A. The Prima Facie Standard Is The Appropriate Burden For

Selective Prosecution Claimants



The holding in Kennedy, supra is in harmony with federal law and the law of other jurisdictions. Recently the United States Supreme Court in United States v. Armstrong, ___ U.S. ___, 116 S.Ct. 1480 (1996) held that the standard of proof in a selective prosecution case is a demanding one so as to balance the discretion of the executive branch with the requirement that "the decision whether to prosecute may not be based on 'an unjustifiable standard such as race, religion, or other arbitrary classification.'" Id 116 S.Ct. 1486, quoting Oyler v. Boles, 368 U.S. 448, 456, 82 S.Ct. 501, 506 (1962). Thus, "a defendant may demonstrate that the administration of a criminal law is 'directed so exclusively against a particular class of persons ... with a mind so unequal and oppressive' that the system of prosecution amounts to 'a practical denial' of the equal protection of the law." Id. at 456, quoting from Yick Wo v. Hopkins, 118 U.S. 356, 373 (1886). Also see Whren v. United States, U.S. , 116 S.Ct. 1769, 1774(1996). To rebut the presumption the prosecutor has not violated equal protection, a criminal defendant must present "'clear evidence to the contrary.'" Id., quoting Unites States v. Chemical Foundation, Inc., 272 U.S. 1, 14,-15, 47 S.Ct. 1, 6 (1926).(25)

Nevertheless the Armstrong court relied on existing precedent to stress that claims of selective enforcement such as that proven below draw on "ordinary equal protection standards." Armstrong, supra at 1487, quoting Wayte v. United States, 470 U.S. 598, 608, 105 S.Ct. 1524, 1531 (1985). The Armstrong court further stressed that the "ordinary equal protection standards" would not "make a selective prosecution claim impossible to prove." Id. Also see Yick Wo v. Hopkins, 118 U.S. 356, 6 S.Ct. 1704 (1886).

The intent of the Armstrong court to balance prosecutorial discretion with the limitation on prosecution's power to rely on race, i.e. a heavy burden but not an impossible one is highlighted by the fact The Armstrong court invoked Hunter v. Underwood, 471 U.S. 222 (1985) to explicate its view that normal equal protection principles control selective prosecution proofs. Hunter, supra recognized that an intent to discriminate against blacks was shown through "indisputable evidence" of discriminatory effect where blacks were 1.7 times as likely as whites to suffer the penalty of voting disenfranchisement. Armstrong, supra at 1487. The Armstrong court cited Hunter, supra with approval noting that its holding was "consistent with ordinary equal protection principles, including the similarly situated requirement." Id.

The issue in Armstrong was the appropriate burden to be placed upon selective prosecution claimants when requesting initial discovery in support of their claim. Id. at 488. Because a discovery order in a selective prosecution case imposes significant burdens on the government, the Armstrong court required an initial "rigorous standard" to support such a discovery request. Id. Accordingly the court reasoned that the initial burden just to respond to discovery requests is similar to the burden placed on the government to respond to actual selective prosecution claims:

"If discovery is ordered, the government must assemble from its own files documents which might corroborate or refute the defendant's claim. Discovery thus imposes many of the costs present when the government must respond to a prima facie case of selective prosecution." Id.(emphasis added)



According to the Armstrong court, the use of equal protection standards as embodied in the concept of a prima facie case comports with the holding in Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712 (1986). In Batson in the context of a claim asserting racial discrimination in a prosecutor's exercise of peremptory challenges the court stated "similarly if the defendant makes out a prima facie case, the prosecutor is called upon to justify ... " his actions. Id at 93 -94.

A similar standard emerges from New Jersey's constitution. State v. Gilmore, 103 N.J. 508, 519, 511, 1162 (1986). To adjudicate claims of prosecutorial discretion in the exercise of peremptory challenges Gilmore, supra, specifically adapted burden of proof rules from disparate treatment cases brought under Title VII of the Civil Rights Act of 1964, 42 U.S.C. 2000e to 2000e-17.

In State v. Kennedy, supra, the court aligned itself with the principle of expressing the sufficiency of a selective prosecution case as a "prima facie case" found in Armstrong, Batson and Gilmore. Under ordinary equal protection principles the appropriate burden of proof is expressed in terms of a prima facie case. "We stress that the defendants need not establish a full prima facie case in order to be entitled to discovery. A prima facie case is one that if unrebutted will lead to a finding of selective prosecution." Id. at 34.

In the instant matter the State relies on State v. DiFrisco, 118 N.J. 253, 266 (1990), to argue that the trial court erroneously utilized the concepts of "prima facie" case and burdens of proof. (P.B. 35-40). Nevertheless the "heavy" burden mentioned in DiFrisco in fact involves a prima facie case consistent with the principles discussed above. Indeed the DiFrisco court specifically relied on the analysis of selective prosecution described in Wayte v. United States, 470 U.S. 598, 105 S.Ct. 1524 (1985). The United States Supreme Court in Wayte required that a selective prosecution claim was to be evaluated according to equal protection standards; the claimant must present a "prima facie case"-- in other words "a showing, which, if unrebutted would directly establish discriminatory effect and purpose." Wayte, supra at 608-9 n. 10, 105 S.Ct. at 1531.

Nationwide, cases discussing the issue of selective prosecution consistently describe the "heavy burden" or rigorous burden in selective prosecution cases as that of a prima facie case. In the federal realm, most recently, this burden of proof was noted as a "prima facie showing that she was selected for prosecution for an invidious reason such as her race, her religion, or her exercise of constitutional rights." United States v. Bell, 113 F.3d 1345, 1351-52 n. 6 (3rd Cir. 1997), citing Wayte, supra. Also see United States v. Bauer, 84 F.3d 1549, 1560 (9th Cir.) (requiring "a prima facie showing that the decision rested on a impermissible basis"), cert. den. 117 S.Ct. 267 (1996); United States v. Estrada-Plata, 57 F.3d 757 (9th Cir. 1995) (selective prosecution claim requires a "prima facie case of invidious discrimination"); United States v. Cyprion, 23 F.3d 1189, 1195-96 (7th Cir.) (requiring "a prima facie case of selective prosecution"), cert. den. 115 S.Ct. 211 (1994); United States v. Mullens, 22 F.3d 1365, 1383-84 (6th Cir. 1994) (defendant must make "a prima facie case of selective prosecution"); Jones v. White, 992 F.2d 1548, 1571 (11th Cir. 1993), cert. den. 510 U.S. 1059 (1994); United States v. Gutterez, 990 F.2d 472, 475-77 (9th Cir. 1993); United States v. Collins, 972 F.2d 1385, 1397-98 (5th Cir. 1992), cert. den. 507 U.S. 1017 (1993); United States v. White, 972 F.2d 16, 19-20 (2nd Cir. 1992), cert. den. 506 U.S. 1026 (1993); United States v. Huff, 959 F.2d 731, 734-35 (8th Cir. 1992), cert. den. 506 U.S. 855 (1993).

The "heavy burden" in selective prosecution means the claimant must make a "prima facie showing of unconstitutional selective prosecution." United States v. Sparks, 2 F.2d 574, 580 (5th Cir. 1993) Also see United States v. Peete, 919 F.2d 1168, 1176 (6th Cir. 1990) where the court notes that the selective prosecution claimant bears the heavy burden of establishing, at least, prima facie, the elements of a selective prosecution claim.

State courts likewise have consistently referred to the burden on a selective prosecution claimant as that of producing a prima facie case. See generally Carreras v. State, 936 S.W.2d 727 (Texas App. 1996) (defendant has the "burden of establishing prima facie the fact of selective prosecution"); Commonwealth v. Van Wells, 657 A.2d 507, 510 (Pa. Super, 1995) (defendant has burden to establish a prima facie case of selective prosecution"), App. den. 6 A.2d 1131 (Pa. 1995); People In Interest Of W.Y.B., 515 N.W.2d 453, 454-55 (S.D. 1994); State v. Honore, 564 S.O.2d 345, 348-49 (App.) cert. den. 569 S.O.2d 968 (1990). State v. Zaccaro, 154 Vt. 83, 574 A.2d 1256, 1261 (1990); State v. Hyland, 431 N.W.2d 868, 872 (Minn. 1988); State v. Russell, 343 N.W.2d 36, 37-38 (Minn. 1984).

Against this chorus of unanimous caselaw support for the notion of a prima facie case in selective prosecution matters the State's assertion that the trial court wrongly invoked the concept is without merit.



B.Statistics Alone Can Establish A Prima Facie Case

Although Evidence Can Be Drawn

From The "Totality Of The Circumstances"





The wealth of caselaw already cited establishes the capacity of statistics to prove a prima facie case.

To honor the general (Fourth Amendment) proscription against probing the hidden thoughts of the constable, the court resorted to the notion of proof of a "policy" or "course of conduct." Kennedy, supra at 588 A.2d 838, 247 N.J. Super 21. Notwithstanding the taboo against subjective probes into the constable's state of mind, Kennedy insisted that the courts will not tolerate race based targeting by police. Kennedy, supra at 588 A.2d at 839; citing State v. Bruzzese, 463 A.2d 320 at 329, 94 N.J. 210 (1983). This insistence implies acceptance or some inquiry into and proof -- at least objective, statistical and inferential proof -- of discriminatory intent. Without question under either Fourth or Fourteenth Amendment analysis, this state's jurisprudence shows no tolerance for discriminatory intent. In Dixon v. Rutgers, 541 A.2d 1046, 110 N.J. 432 (1989) the court declared that a eradication of the "cancer of discrimination" has long been one of our state's highest priorities." In State v. Kuhn, 517 A.2d 162, 213 N.J. Super 275 (App. Div. 1986) this court dictated that no inference may be drawn from the race of a person that he/she may be involved in criminal activities. Similarly State v. Letz, 603 A.2d 562, 254 N.J. Super 390 (L. Div. 1992) mandates that race cannot be considered at all in an officer's decision to detain an individual.

In Kennedy, the court set forth a device to ensure that a racial profiling inquiry does not deteriorate into a probe of a policeman's subjective state of mind. That device is the notion of a "policy"; the court defines the inquiry as whether there exists a policy, "officially sanctioned or de facto," to target minorities for stop and search. Kennedy, supra at 588 A.2d 838, 247 N.J. Super 21. Kennedy, supra speaks approvingly of objective evidence of the "course of conduct" of members of the agency, as evidenced by statistics -- the most objective evidence imaginable statistics document what is, what occurs and what the course of conduct actually produces.

Here again, Kennedy is in harmony with federal precedent. See Armstrong, supra; Hunter v. Underwood, 471 U.S. 222 (where the claimant's prima facie case proved an intent to disenfranchise blacks through a showing of "indisputable evidence" of discriminatory effect where blacks were 1.7 times as likely as whites to suffer the penalty at issue there.) Such a statistical showing was consistent with ordinary equal protection principles. Id.

The Batson court also allowed that purposeful discrimination can be proven through direct and circumstantial evidence of disproportionate impact. "[U]nder some circumstances, proof of discriminatory impact 'may for all practical purposes demonstrate unconstitutionality because in various circumstances the discrimination is very difficult to explain on non-racial grounds.'" 476 U.S. at 93, 106 S.Ct. at 1721, quoting Washington v. Davis, 426 U.S. 229, 242, 96 S.Ct. 2040, 2049 (1976). Batson acknowledged that intentional discrimination can be shown solely by "total or seriously disproportionate exclusion" of blacks from juries. A prima facie case of purposeful discrimination may be made by a showing that the "totality of the relevant facts give rise to an inference of discriminatory purpose." Id. Also see Washington v. Davis, supra at 96 S.Ct. 248-249. Indeed, the Batson court recognized that a prima facie case could be established "solely on evidence concerning the prosecutor's exercise of preemptory challenges at the defendants' trial." 106 S.Ct. at 1723. The pattern of challenges themselves may support "the necessary inference of purposeful discrimination." Id.

The decision in Kennedy, supra supports the position of the trial court accepting statistics as sufficient to establish a claim of selective enforcement/profiling. "When statistics are used to establish a pattern of discrimination, their validity depends upon an accurate identification of the group or population from which the selection was made." (Pa 15) And in speaking of that "correct identification" of the relevant group the Kennedy court specifically seized upon the racial composition of the persons violating the traffic laws-- those who are eligible to be stopped. The decision of the trial court below comported faithfully with Kennedy's prescription.

Over 70 trial days, the defense presented overwhelming statistical evidence consisting of studies and sub-studies analyzing the actions of State Police general patrol officers in the realm of their duties -- Turnpike patrol -- awash in near unfettered discretion. A world renowned defense statistician (Dr. J. Kadane) appropriately described by the court below as "eminently qualified" found the amount and kind of data assembled by the defense persuasive that the State Police were not acting with racial neutrality in deciding whom to stop; the facts are that a black motorist is nearly five times more likely than a white motorist to be stopped.

Both Dr. Kadane and Dr. Lamberth relied on a database and on surveys designed by Dr. Lamberth to meet the requirements of Kennedy; the state's own expert conceded them to be appropriately constructed. Those foundational surveys were the product of overwhelming investments of investigative hours over a period of years in surveying not only the general populations but the violator populations on the New Jersey Turnpike.

During the lengthy trial, the defendants produced objective evidence with stark statistical clarity. In contrast the State, merely conjectured -- speculated -- that dark skin might somehow correlate with a tendency to engage in egregious driving behavior, so as to attract a disproportionate amount of police attention.

The lynch pin of the State's argument is a misreading of the opinion of the court below. It seizes upon one sentence therein: "I find defendants have established a prima facie case of selective enforcement which the state has failed to rebut requiring suppression of all contraband and evidence seized." (Pb 34) (quoting Pa. 1) The State's appeal is based in large part upon trying to persuade this Court that by merely employing the words prima facie the court below has imposed too light a burden on the defendants herein and ultimately somehow shifted the burden onto the state.

Nevertheless, it is obvious that the court below employed the words prima facie in this sentence in a functional, commonsensical and legally appropriate manner -- to describe a kind and extent of proof sufficient to establish discriminatory intent and effect. In so doing, the Court was overwhelmingly supported by the wealth of precedent cited above. The State does not explain what alternative phraseology the court below should have adopted to express its opinion that the defense had made out its case, i.e. a prima facie case, and that the state had failed utterly to counter or undermine that case.

It is readily apparent that solely on the statistical presentation below the defense case herein exceeded the levels of proof commonly recognized as sufficient. See generally U.S. v. Armstrong, supra, U.S. v. Bell, 86 F.3d 820 (1996), cert. den. 117 S.Ct. 372 (1996).

Moreover, statistics were not the only evidence presented by the defense. Direct evidence was presented by witnesses to the conduct of the illegal actions of the State Police. Cross-examination of the State's witnesses and presentation of documents in State possession corroborated the existence of a racial profile. (Pa 10-14)

Ultimately the State's own expert -- Dr. Cupingood -- conceded away almost every attempt he had made to question the defense statistics: he agreed that the defense traffic and violator surveys were appropriate; he conceded that his "night study" did not take into account methods troopers employed to see race at night and that troopers could see enough at night to make the number of arrests in question. He also conceded that his radar ticket analysis did not take into account the vast discretion patrol troopers enjoy in issuing radar tickets; he likewise admitted that he did not control for the differences between the radar van and tactical patrol units.

After hearing all of the evidence presented in the matter, by either side, the Court appropriately determined that the totality of the evidence including that presented by the state established a de facto policy of racial harassment. Washington v. Davis, supra, Kennedy, supra.



C.The Trial Court Correctly Found That Presentation

Of A Prima Facie Case Of Selective Enforcement Required

The State Credibly To Rebut The Prima Facie Case





Related to the State's argument that the court imposed too light a burden on the defense is the State's contention that the court inappropriately shifted the burden of proof to the State. (Pb. 47). Here the State errs because the Court shifted no burden of proof. Rather, the Court ultimately rejected as non credible the testimony presented by the State. The State's argument in effect complains that the judge did not accept its speculation and conjecture and its troopers bald denials of profiling. But such judicial rejection of the State's evidence did not constitute an improper shifting of the burden. The State has confused the concept of credibility with its complaint that the Court inappropriately shifted the burden of proof.

Factually, the State assertion that the burdens of proof or persuasion were in any way shifted is completely opposite from what occurred below:

Shortly after the close of the defense case on January 11th, 1995, the defense moved for a finding that it had made out a prima facie case. See generally 18T pages 1-16. The Court made a specific ruling that the burden of proof and persuasion remained on the defense.(18T 4-24 to 5-23; 18T 6-6 to 6-23; 18T 9-14 to 10-13; 18T 12-19 to 18T 13-3; 18T 15-5 to 18T 16-16)

On numerous occasions during the lengthy colloquy on this point, the Court reiterated that all of the appropriate burdens were on the defense. Id. It rejected the defense attempt for a ruling that it had made a prima facie case which the State was required to rebut.Id. Rather, the Court specifically ruled contrary to what the state now alleges. The Court stated:



The equivalent motion in the criminal court, as I understand it, is a motion by the defense for a judgment of acquittal at the end of the state's case. And, the test is, just like in the civil arena, has the state presented a prima facie case -- a case that would sustain a judgment or conviction beyond a reasonable doubt in the criminal arena.



Of course, we're dealing with a motion, as opposed to a case. But assuming a motion like this applicable to a motion, and seeks a determination of whether the party charged with the burden of persuasion has established a prima facie case, that motion is the motion of the one defendant -- here, the state when you rested, the state didn't bring the motion. Why it didn't bring it, I don't know and I'm not going to ask. (18T 5-11 to 18T 5-23) (emphasis added).





Indeed the State explored the issue as to whether the Court had shifted any burden whatsoever to it. Counsel for the State virtually accused the Court of already having shifted the burden of proof:

Mr. Fahey: Well, we didn't bring it [a motion to dismiss at the end of the defense proofs] because Your Honor at least shifted some responsibility to the State to come forward to explain the attorney general's action plan. We contemplated bringing it, but once Your Honor did that, we decided we might as well put our case in. Because there is some responsibility to clear things up. This procedurally is a little bit different. (8 T 5-24 to 18T 6-5)



Yet, the Court immediately rejected the State's notion that even the slightest burden had been placed on it. The Court stated:



Let me stop you. I of course, don't remember the exact words I used, and I remember saying something along that line. However, the issue before me at that time was whether or not to admit the Action Plan and the update. Both then, and I think again yesterday, I indicated that the 87/88 Action Plan by itself, or by themselves, when including the 93 update, do not establish that the Attorneys General of the State of New Jersey were directing selective enforcement.



However, because the plan at several places includes the word 'profile' or 'profiling' without the finding the word or words, indicating the components of the profile or the profiling; and because the meaning behind those words could be some proof toward the defense premise in this case, I was of the opinion that the plan and update had some tendency in reason to prove the defense premise in this case, and was thus admissible. In effect, forcing or encouraging the State to come forward to explain what that plan meant by use of that word in its various forms. In no way was I trying to shift the burden of persuasion, but I did indicate, I think it would do the State well to come forward and introduce proofs toward what was meant by that word and its various forms in the action plan.



So, my comments were limited to the issue before me or the admissibility of that document. No more. (18T9-23 to 18T 10-13)(emphasis added)



The statement from the trial court that it would be helpful for the State to explain the references to profiling, when ruling on the admissability of the Action Plans, shifted no burdens; the Court clearly stated so. It was the comment of a fact finder who was interested in the truth, and who had to make some finding of relevance in order to admit the Attorney General's Action Plans into evidence. In essence both the defense and the Court prodded the State at the end of the defense case to probe the sufficiency of the defense case and the State declined. Now, the State insists that the burden of persuasion was silently and invidiously shifted to it. To the contrary, a shifting did not occur, but instead the Court vigilantly guarded against any shifting away from the defendants the burden to prove their case.(26)

The State's contention that the court below somehow shifted a burden ignores this colloquy, where the court assured the state that it had not and would not shift the burden of proof.

The colloquy reproduced above highlights one other important procedural and legal underpinning aspect of this case. During the hearing below the State seemed to suggest at one point that the burden did not stay with the defense. "The only analogous type of case are the civil rights cases, such as McDonald Douglas under Title 7, where there is a shifting burden. ... I don't know if that's analogous here, Your Honor." Id. at page 14 lines 8-17. Yet on its own, without guidance from the party which should have been most interested in keeping the appropriate burdens where they belong, the court below did maintain the appropriate burdens of proof and persuasion. Only now does the State attempt to allege otherwise.

From the standpoint of precedent, and stripped of the State's misconceptions and confusion as to issues of credibility, the trial court's succinct statement is an accurate recitation of the law. Kennedy, supra notes that "a prima facie case is one that if unrebutted will lead to a finding of selective prosecution." Kennedy, supra at 34. Here, again, extensive case law throughout the country supports this succinct notion in Kennedy as adopted by the trial court.

A sufficient showing of a prima facie case of selective enforcement requires that the government must "come forward with evidence, if it could, to rebut the inference of a double standard." United States v. Crowthers, 456 F.2d 1074, 1078 (4th Cir. 1972) "If the defendant makes the required prima facie showing, the government must demonstrate the absence of impermissible considerations in its decision to prosecute." United States v. Penagaricano-Soler, 911 F.2d 833, 837-38 (1st Cir. 1990). Once a defendant proves selective prosecution, "the burden shifts to the government" to appropriately explain the prosecutorial scheme. Fedorov v. United States, 600 A.2d 370, 382-83 (D.C. App. 1991), citing Batson; also see United States v. Bell, 86 F.3d 820, 823 (8th Cir. 1996). "In the context of selective prosecution claims, in order to establish a prima facie case, thus shifting the burden to the state [to rebut], the defendant must demonstrate that a prosecutorial policy results in a discriminatory effect, based on unlawful classification." State v. Geer, 765 P.2d 1, 3 (Utah App.), cert. den. 773 P.2d 45 (1989), citing Wayte, supra. Further if a claimant shows selective prosecution, the burden then shifts to the government to justify a race neutral explanation. State v. Barman, 183 Wis.2d 180, 515 N.W.2d 493, 497 (Wis. App. 1994).

The approach taken by Judge Francis was therefore thoroughly consistent with the established precedent noted above as well as cited in the State's brief. Simply stated that approach defines the structure of a selective prosecution case as one where a claimant must present enough evidence "to demonstrate a reasonable inference of invidious discrimination," United States v. Redondo-Lemos, 955 F.2d 1296, 1302 (citing United States v. Wayte, supra) and thereafter "[o]nce a showing of purposeful discrimination has been made ... the office of the United States attorney must be given an opportunity to present evidence rebutting the prima facie case."Id.

It is clear that the State confuses the concept of a shifting burden of proof and persuasion with the mere burden of producing evidence of race neutrality. The State builds upon its inaccurate premises that the court applied the wrong burden of proof and then shifted the burden wherein it states "compounding the trial court's error on the burden of proof was its belief that, in order to rebut the defendants' case, the state had to do more than demonstrate the inadequacies of defendant's statistical proofs. Rather, according to the trial court, it was incumbent upon the state to bring forth its own statistical studies to dispute not the scientific validity of defendants' statements, but their results." (Pb 51)(emphasis added) Yet nowhere did the trial court place such a requirement upon the State as is amply indicated by the colloquy cited above. Instead, the trial court actually said was "once defendants expose a prima facie case of selective enforcement, the State generally cannot rebut it by merely calling attention to possible flaws or unmeasured variables in defendants' statistics. Rather, the State must introduce specific evidence showing that either there actually are defects which bias the results or the missing factors, when properly organized and accounted for, eliminate or explain the disparity." (Pa 15) (trial court's citations omitted).

Again confusing the issue of credibility with the burden of coming forward with evidence of race neutrality the State has misread the consistent case law support for the approach taken by Judge Francis. The trial court specifically noted "against all this, the State submits only denials and the conjecture and flawed studies of Dr. Cupingood." (Pa 16)

Although the State did not suffer, as it attempts to persuade this court, a shifted burden of proof and persuasion it was nevertheless incumbent on the State to proceed with more than mere denials or conjecture. A simple requirement that the State rebut the defense prima facie case with race neutral explanations required that it introduce "specific evidence showing that either there actually are defects which bias the results or the missing factors, when properly organized and accounted for, eliminate or explain the disparity. (Pa 15); Bazemore v. Friday, 478 U.S. 385, 403, n. 14 106 S.Ct. 3000, 310 n. 14 (1986). This burden of production "must clearly set forth, through the introduction of admissible evidence, a race neutral explanation." St. Mary's Honor Center v. Hicks, 509 U.S. 502, 113 S.Ct. 2742, 2747 (1993), quoting Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 254-55, 101 S.Ct. 1089, 1094 (1981).

It is true, as the State claims, that "[i]ts experts attacked the manner in which defendants gathered the data and challenged their analysis of the results." (Pb 54) Yet that is the legally insufficient extent of what the State achieved below. Its experts' "attacks" were merely sophistic, unsubstantiated assertions without any basis in the record or in fact. At best its non-expert witnesses put forth the mere denials that the cases find insufficient per se. Indeed as was noted in Batson, supra at 1720, "if these general assertions were accepted as rebutting a defendant's prima facie case, the equal protection clause 'would be but a vain and illusory requirement.'" Id.

Moreover, beyond the pat denials, State witnesses provided telling evidence in support of race non-neutrality: "The defense did not rest on its statistical evidence alone... . [T]he defense elicited evidence through cross-examination of state witnesses and a rebuttal witness, Dr. James Fyfe, that the State Police hierarchy allowed, condoned, cultivated and tolerated discrimination between 1988 and 1991 in its crusade to rid New Jersey of the scourge of drugs." (Pa 10)

In short the trial court did not err when it found the defense had met the heavy burden of establishing a prima facie case of selective prosecution. The Court required nothing more of the State than to come forward with some admissible, credible evidence of race neutrality, a task which the State's witnesses utterly failed to accomplish. Indeed, beyond the surface of their mere denials, State witnesses established the contours of a de facto policy of racial discrimination.





POINT II

THE CREDIBLE EVIDENCE ESTABLISHED

THE SELECTIVE ENFORCEMENT CRITERIA OF

DISCRIMINATORY EFFECT AND PURPOSE







Substituting vitriol for analysis, the State criticizes Judge Francis for finding the elements of discriminatory effect and purpose in the State Police profiling scheme. Masked as an argument alleging that the Court below did hear evidence sufficient to establish discriminatory effect and purpose, the State's argument is in reality something else--a complaint that the court below should not have credited the defense's evidence. Thus the Attorney General asks this court, which had no opportunity to appraise the demeanor of fifty-plus witnesses, to sit as a trier of fact and to credit only those witnesses the State had hoped would cast doubt on those findings.

Well established precedent in New Jersey holds that police witnesses are entitled to no presumption of greater credibility than other citizens. See generally State v. Staples, 263 N.J. Super. 602 (App. Div. 1993); State v. Jones, 104 N.J. Super. 57 (App. Div. 1968) cert. den. 53 N.J. 354(1969). The State urges this court to overturn the painstaking analysis and time commitment of the court below in favor of de novo factual determinations. As the State must recognize such a course by this Honorable Court would be extreme and rare. "Trial court findings are ordinarily not disturbed unless 'they are so wholly insupportable as to result in a denial of justice,' and are upheld whenever they are 'supported by adequate, substantial and credible evidence.'" Rova Farms Resort v. Investors Ins. Co., 65 N.J. 474, 483-84 (1974). The Appellate Division is bound to "grant substantial deference to the trial court's findings of fact." Walles v. Walles, 295 N.J. Super. 498, 513 (App.Div. 1996). These principles apply to civil as well as criminal matters. Matter of J.W.T., 149 N.J. 108, 116-17 (1997). Appellate courts "should give deference to those findings of the trial judge which are substantially influenced by his opportunity to hear and see the witnesses and to have the 'feel' of the case, which a reviewing court cannot enjoy." State v. Johnson, 42 N.J. 146, 161 (1964).

Nevertheless, the State argues for such rare consideration on a woefully incomplete summary within its brief of the wealth of the record's support for Judge Francis's findings; a review of that wealth of evidence exposes the State's request as hollow.



A. The Credible Statistical Evidence Alone Proved

Discriminatory Effect and Purpose



Clear statistical evidence can prove discriminatory effect and purpose; even the State must concede this principle. (Pb 56 - 57) See United States v. Olvis, 97 F.3d 739. Some evidence of racially disproportionate arrests compared against the actual incidence of violations by race can serve as the basis for inferring racially selective law enforcement. U.S. v. Bell, 86 F.3d 820, 823 (1996) (citing Swint v. City of Wadley, Alabama, Wadley, Ala., 51 F.3d 988, 1000 (11th Cir. 1995)). In U.S. v. Armstrong, supra, the Court envisioned statistical proof as sufficient as a primary mode of proving selective prosecution. 116 U.S. at 1487. Armstrong, supra, also allows that "ordinary equal protection standards" apply (citing Hunter v. Underwood, 471 U.S. 222, 227, 105 S.Ct. 1919-20 (1985)). For example Hunter characterizes as indisputable evidence of discriminatory effect a showing that blacks were at least 1.7 times as likely as whites to suffer disenfranchisement for crimes of moral turpitude. Armstrong, supra at 1486.

In the present case, south of Exit 3 the data show that a black violator is 4.85 times as likely as a white violator to be stopped, a figure that startlingly exceeds even the "indisputable evidence" of Hunter approved by the Armstrong court. The State attempts to convince this Court that to prove the prong of discriminatory effect the defense was required to identify specific individuals of another race who were not prosecuted. (Sb 61-62) The authorities cited above indicate the fallacy of this argument.

Bell,supra, specifically allows that "to establish discriminatory effect in a race case the claimant must show people of another race violated the law and the law was not enforced against them." 86 F.3d at 823.(quoting U.S. v. Brown, 9 F.3d 1374, 1975 - 76 (8th Cir. 1993), cert denied, 114 S.Ct. 1568, 128 L.Ed.2d. 213 (1994)). Bell, supra, also contemplates statistical proof of such effect by allowing for an inference of racial selectivity where there is at least some evidence of racially disproportionate arrests compared to the actual incidence of violations by race. Id. In other words, statistics showing that the selection of blacks for enforcement(stop) exceeds, in statistically significant fashion, their actual percentage in the violator group, can establish these elements. Thus, Hunter v. Underwood, supra, cited with approval by the Armstrong court found "indisputable evidence" of discriminatory effect where there was a showing that blacks in that case were at least 1.7 times as likely to suffer the complaint of discrimination. Underwood, supra, 105 S.Ct. at 1919-20 (1985).

In the instant matter the State asks this court to distort these authorities. The Attorney General takes the untenable position that a 4.85 ratio in the instant case --so much clearer than the Hunter court's "indisputable evidence" of 1.7 -- percent of blacks stopped is so stark that racial non-neutrality appears certain does not suffice. Agreeing with an "eminently qualified" (Pa 4) expert the court below found these statistics were "indeed stark." (Pa 16) The facts warranted no other conclusion. See generally, Castaneda v. Partida, 430 U.S. 460,495-501, 97 S.Ct. 1272,1280-83(1977).

In another analytical wrong turn the State urges that defendants supposedly have not proved discriminatory effect because the defendants also "failed to demonstrate a general pattern of non-enforcement of the motor vehicle laws against non-blacks." (Pb 64) This analysis of the law would make selective prosecution cases impossible in motor vehicle cases and in any event avoids the issue. As the court in Hunter perceived, even "an additional purpose to discriminate against poor whites would not brand as nugatory the purpose to discriminate against all blacks." 471 U.S. at 232, 105 S.Ct. at 1922. Also see Whitus v. Georgia, 385 U.S. 545, 551, 605 (1967); Castaneda v. Partida, 430 U.S. 482, 493-94 (1977). That the State Police obviously stop some whites is irrelevant to the question of whether a disproportion between the percentage of blacks in violator population and percentage stopped is so stark that racial non-neutrality is certain.(27) The state suggests a policy which would in essence allow the New Jersey State Police in any given time period to stop 99% black and only 1% white or alternatively all black out of thousands of stops and only one white person and that would defeat any responsible attempt by this or other courts to supervise racist activities.

Clearly that is not the law. As the Court below noted:



Statistics may be used to make out a case of targeting minorities for prosecution of traffic offenses provided the comparison is between the racial composition of the motorist population violating the traffic laws and the racial composition of those arrested for traffic infractions on the relevant roadway patrolled by the police agency. (PA. 15)



The Court below appropriately cited Wards Cove Packing Company v. Atonio, 490 U.S. 642, 109 S.Ct. 2115 (1989) as well as State v. Kennedy, supra,247 N.J. Super. 33 -34. The court in Kennedy directed that the proponents of a profiling allegation need to establish two fundamental statistics: 1) the racial composition of that group of motorists who violate the traffic laws and thus make up the group that is subject to a stop; and 2) the racial composition of the motorist population that is in fact stopped. Kennedy, supra, 588 A.2d at 839-40. The court went on to note that the racial composition of the motoring public on the Turnpike who "violate the traffic laws" is the "pool of persons from which state troopers must select violators." Id. In the present case defendants have accomplished precisely what the court in Kennedy as well as the authorities cited above required. The defense violator survey was a measure of racial composition of the cars exceeding 60 miles-per-hour in a 55 mile-per-hour zone, plus the racial composition of those cars exceeding 60 miles-per-hour who also engaged in other observable traffic violations such as lane changes without signaling or failing to keep right. The black percentages of these groups were 15% and 14.5% respectively. Dr. Kadane termed this survey "an admirable job." (62T 74-5 to 62T 74-14)

At the same time, painstaking tabulation of all the available stop data for 35 randomly selective days over the relevant stretch of the Turnpike found that over 46% of the persons stopped were black -- (or approximately 35% if one counts the entire stretch of the Turnpike patrolled by Moorestown, as opposed to the southern most section between exits 1 to 3) these studies yield stark measures of disparity and statistical significance - absolute disparity of 32.7%, comparative disparity of 242% and over 16 standard deviations.(28)

These statistics rule out randomness as an explanation for the grossly disproportionate representation of blacks in the random sample tally of stops. Indeed these statistics--such as 16 standard deviations-- amply establish a prima facie case of discriminatory effect and purpose, Castaneda, supra at 496 fn. 17. (opining that two or three standard deviations is sufficient to establish statistical significance). In Whitus v. Georgia, supra, blacks were 27.1% of taxpayers yet only 9.1% veniremen. Such a disparity is substantial enough to establish through statistics alone, a prima facie case of intentional discrimination). Id. at Our own Supreme Court has recognized that comparative disparities of over 50% are "strong evidence" of disparate representation in a sample, under the Fourteenth Amendment. See State v. Ramseur, 524 A.2d at 236. The defense case in the instant matter featuring far more glaring absolute and comparative disparities such as a comparative disparity of 242% qualifies as "indeed stark."

Kennedy, supra, is in accord. An officially sanctioned or de facto policy of racial discrimination can be "proven or disproven by objective evidence." 247 N.J. Super. at 30. Statistics are such evidence. Id. at 33-34.

The defense went much further, however than Kennedy, supra, requires. Corroborative and ancillary studies in this case made the statistics and the prima facie case that much more robust. For example, Dr. Kadane engaged in one such study called a "sensitivity analysis" involving missing data analyses. This process served to reinforce his primary conclusion of non-racial neutrality. Dr. Kadane's primary conclusions, based upon the available data were that the odds of a black motorist being stopped were 4.85 times greater than the odds of a non-black being stopped.(6T 111-20 to 6T 113-1;6T 122-3 to 6T 123-17) He found these results to be consistent with the "standard deviation" analysis and conclusions of Dr. Lamberth, and he found them to be strong proof of bias.(62T 59-9 to 62T 60-22)

Dr. Kadane informed the court that his "conditional" or "relative" probability statistics are more telling than the simple conclusion, from standard error analysis, that the "black stop rate" was not the product of random selection. Dr. Kadane described his results as proof of what was actually occurring -- the bias that was at work and the results that produced -- as opposed to a mere ruling out of "random" selection. Plotting the log odds ratio on a probability distribution curve, Dr. Kadane demonstrated, in effect, that it was a virtual mathematical certainty(29)

that the police stopping activity or practices were not racially neutral. This was so because virtually 100% of the probability distribution lay to the right of the point on the graph which he presented the court which reflected racial neutrality. Even when introducing the extreme (arbitrary) assumption that there are two or three times greater odds of a black who was stopped actually having his race recorded, the locus of the probability distribution curve in relation to the point of racial neutrality did not materially change. This is to say, even factoring in these extreme and completely unsupported assumptions (which gave an extreme "benefit of the doubt" to the state), still virtually all of the probability lay to the right of "zero" for the point of racial neutrality.(6T 127-14 to 6T 143-22; 6T 144-11 to 6T 147-10; 6T 158-3 to 6T 162-6; 15T 45-4 to 15T 45-23; 15T 56-5 to 15T 58-1)

Other studies performed by the defense made the statistics in this case more alarming and more robust. The defense study of radar unit versus general patrol trooper tickets was one such study. To illustrate, among radar van unit tickets generated by command from a remote van(not a roadside general patrol trooper), the black percentage is 18% or roughly comparable to the finding of the violator survey. Comparison of this figure against the 46.2% of black stops in the database would yield materially the same proportional differences and disproportionate odds of black violators being stopped. Also, comparing radar unit statistics versus general patrol trooper statistics showed statistically significant differences between these unit stops of black motorists. The difference in levels of discretion exercised by the respective units translates into statistically significant different treatment of black motorists. (62T 42-13 to 62T 42-22; 13T 31-13 to 13T 31-15)

The statistics and testimony clearly show the general road troopers operated with virtually no objective or fixed standards for selecting targets for stops.(Da 94-130; Pa 15-16) Generally, such an absence of fixed and objective standards for selection can constitute evidence of a discriminatory practice, at least in employment discrimination cases, when the standardless selection process yields a racially non-neutral outcome. See Watson v. National Linen Service, 686 F.2d 877, 881 (11th Cir. 1992)(30)



The New Jersey Supreme Court observed in State v. Marshall, 130 N.J. 109, 613 A.2d 1059(1992) that "if a result is 'more than two or three standard deviations from the expected,' a statistician assumes it is suspect." Id.at 613 A.2d at 1111 (quoting Ramseur, supra at 106 N.J. 123, 221(1987)). The State concedes that " the Supreme Court has accepted statistics as proof of discriminatory purpose in certain limited, and relatively simple situations... ." (Pb 90) Yet traffic enforcement based on the limited variables of Title 39 is such a limited, non complex matter. McClesky v. Kemp, 481 U.S. 279, 107 S.Ct. 1756 (1987) allows that "the existence of purposeful discrimination" may be shown by stark statistics or even lesser statistical showings in simpler cases. Id. at 293-94. Such "stark" statistics were presented here even though the instant matter is one of simple selection mechanics and does not involve the unique complexities which concerned the McClesky court. Id. at 294-295. Marshall, supra, specifically allowed that a showing such as that made in McClesky would show discrimination within the context of New Jersey's unique commitment "to the elimination of racial discrimination." 613 A.2d at 1110.

In reality the State's attempt to argue that the defense did not prove discriminatory effect is a complaint that in the face of overwhelming statistics the court below did not believe the unsupported positions and factually unanchored premises of the State's expert. As the court below accurately found "against all this, the state submits only denials and the conjecture and flawed studies of Dr. Cupingood." (Sa 16) In its present brief the State reiterates a kind of wish list based on the conjectures of Dr. Cupingood, all of which evaporated upon examination. Indeed some of his "criticisms" were so flawed as to call into question the credibility of more than just his dubious technique.

One of the State's wish list of requests for this court to de novo find Dr. Cupingood credible includes the following: "The state's expert, Dr. Leonard Cupingood, testified that whenever there is missing data, there is a 'big problem' for conducting reliable statistical analysis because of the large number of unknowns." (Pb 70) In its most immediate sense this statement is inaccurate. On cross-examination Dr. Cupingood conceded that the missing data analysis performed by Dr. Kadane was appropriately done and is an acceptable method for evaluating missing data. (53T 133-7 to 53T 133-20) The court below appropriately found the scientific reliability of Dr. Kadane's missing data analysis (Pa 4), and Dr. Cupingood conceded that reasonable and qualified statisticians regularly employ this technique.

Additionally, the responsibility for missing data in this case lies with the State. The court below accurately noted that "62.6% of the stops in the defense database are not race identified as a consequence of both a destruction of the radio logs for 10 of the 35 randomly selected days in accordance with the state police document retention police and the frequent dereliction of state police members to comply with SOP F3 effective July 13th ,1984 requiring them to communicate by radio to the respective stations the race of all occupants of vehicles stopped prior to any contact." (Pa 4)(emphasis added).

Although the missing data had little or no impact on the statistical analysis in this case in actuality it further supports the credibility determination of the court below. The systematic failure of the State Police to abide by their own SOP confirmed the actual mechanics of profiling as described by witnesses Ruff and Wilson. They noted that in aid of the profile troopers would regularly be "derelict" in their supposed duty under SOP F3 (Da 1-3;Pa 4) to report race of occupants who were stopped. Indeed the state nowhere explained this almost systematic failure to report the race of occupants. Accordingly the failure to gather this data and the failure of the state to explain the systematic violation of their own SOP is indeed telling and supportive of the credibility determination made by the court below. See State v. Clawans, 38 N. J. 162, 170-71 (1962).



Generally, failure of a party to produce before trial tribunal proof which, it appears, would serve to elucidate the facts in issue, raises a natural inference that the party so failing fears exposure of those facts would be unfavorable to him. [citation omitted] But such an inference cannot arise except upon certain conditions and the inferences always open to destruction by explanation of circumstances which make some other hypothesis a more natural one than the parties' fear of exposure. This principle applies to criminal as well as civil trials, to the state as well as to the accused. Id.(emphasis added)





The testimony of Lieutenant Madden highlights that the State had at its disposal extensive analytic resources and was in possession of all of the sources from which the data were derived-- e.g. consent to search data entry forms for all "consent" searches showing the race of the target. In a case of an allegation of racially biased jury selection the law division has stated "however, since the means of producing evidence necessary to make such a determination was exclusively within the power of [the state], the failure of production must give rise to an inference adverse to the defense." State v. Russo, 213 N. J. Super 219, 234 (L.Div. 1986). Also see State v. Lewis 67 N.J. 47,48 (1975).

The State's attempt to infuse Dr. Cupingood's work with credibility also relies on his unsupported contention that the defense violator survey was somehow inadequate. The State alleges: "[T]he trial court erred, however in accepting defendants' biased and flawed violator 'survey' which failed to capture sufficient relevant data." (Sb at 74) Hoping to inflame this Court with concerns of credibility which none of its witnesses, expert or otherwise, could establish the State now reaches beyond the record and logic to state:

"Frankly, it is absurd to believe that one Assistant Deputy Public Defender could, by riding up and down a highway for only four days... counting cars that passed him and peering into the windows, gather sufficient data to assess the many factors that might lead a patrol officer to stop the motorist. ... the observer bias in conducting the violators 'survey' is therefore patent." (Sb 74- 75)



The State's argument here is at the very least misplaced. The State failed on cross examination or during its case in chief to establish any basis for the above bald criticism. Apparently finding no other substantial issues on appeal it now hopes to introduce issues that were non-existent below.

The State frames the issue to be one which "does not concern violations per se but whether black motorists are being stopped in disproportionate numbers." (Sb 75 - 76) However the State, as did its expert below, makes a leap in logic and distorts the facts when it alleges that the violator survey did not capture the racial makeup of those "most likely to be stopped by the police if the police were acting in a completely race neutral manner." (Sb 76) Seizing on a construct that never appeared in the case below the State further alleges "it was only by using the false assumption that everyone was equally likely to be stopped that the defense could make a statistical comparison with those motorists who are actually stopped." (Sb 77) The State hopes that this court will ignore the proofs which overwhelmingly show which persons were most likely to be stopped; black motorists. That targeted group was 4.85 times more likely to be stopped than any other race. In his testimony below Dr. Cupingood failed factually and logically to establish otherwise.

Judge Francis noted, the statistics in this case "are indeed stark." (Pa 16) Judge Francis found the unrebutted statistic that fully 63% of the unticketed stops between exits 1 and 3 were black and 37% of the unticketed stops between 1 and 7A were black to be important. Obviously, if tickets are not even issued then those persons who were overwhelmingly most likely to be stopped were not stopped based on any egregious driving offense.

The Court inevitably rejected Dr. Cupingood's conjecture that the 15% benchmark from the violator survey somehow did not capture the racial mix of that hypothesized group of "most likely to be stopped."

Dr. Cupingood was given ample opportunity to explain to the Court how he would have examined the facts differently. "He was unclear, though, how he would design a study to ascertain in a safe way the vehicle going the fastest above the speed limit at a given time at a given location and the race of its occupants without involving the credibility of State Police members." (Pa 6) Cupingood had suggested that the State engage in some studies but the State consciously decided not to.

Below, Dr. Cupingood conceded that in arriving at his conclusions he had not been made aware of testimony of the numerous State Police witnesses who unanimously asserted that blacks do not drive faster/worse than whites. He then conceded that this critical block of testimony could very well represent the "missing study" he thought necessary.(49T 121-21 to 49T 123-4) "In any event, his supposition that maybe blacks drive faster than whites above the speed limit was repudiated by all state police members called by the State who were questioned about it. Colonel Clinton Pagano, Trooper Donald Nemeth, Trooper Stephen Baumann and Detective Timothy Grant each testified that blacks drive indistinguishably from whites." (Pa. 6)



Wintner: Beyond what you have already testified to, is there anything that you've noticed in your experience about the way any particular races operate their vehicles, their motor vehicles to call your attention, that calls your attention to them?



Nemeth: 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 38-10 to 22T 38-15; 22T 40-6 to 22T 40-13)







Further, Dr. Cupingood conceded that he knew of no study which would indicate that blacks drive somehow worse. (Sa 6)

However the State inaccurately alleges that "the testimony of the road troopers at trial clearly demonstrated that the State Police attempt to stop only the most serious of violators." (Sb 79) The testimony on this point in fact revealed that there are no uniform standards or guidelines for effectuating stops. Trooper Bauman's testimony illuminated the fact that although troopers were expected to issue a percentage of warnings and tickets per patrol hour, no other standards as to egregiousness emerged. (24T 4-20 to 24T 14-5; Da 94-130) Indeed, there were no guidelines or standards as to when a trooper should issue a warning versus a summons. Seriousness was invisible as far as policy was concerned. Id; (62T 18-20 to 62T 20-22) The undisputed fact remains that blacks do not drive worse than whites and that the great majority of stops don't even net tickets. It is obvious that this unanimous observation applies at all speed levels.

The State takes one step further its intent to erase this irrefutable aspect of this case. It unfairly paraphrases the finding of the court below when it states "the only response offered by the trial court to this mortal deficiency in defendants' proofs was that the state troopers who testified did not notice a difference in the driving pattern of blacks and whites." (Sb 84) This is rank distortion of the record and an inversion of the common sense analysis this issue demands. It was not incumbent on Judge Francis nor the defense to prove that blacks don't harbor some gene or some behavioral pre-disposition to offend the traffic laws of New Jersey. The State nurtures this noxious weed as a notion without support in the record. To dramatize its baselessness, the defense questioned the veteran traffic troopers themselves, if this musing found even anecdotal support in their own experience; none responded in the affirmative. Only the faultiest reaches of cynicism would find in this sequence some supposed "point" in the State's favor.

So much of Cupingood's work in this case derived from similarly hollow premises. To illustrate, his "nighttime stop" study proceeded from his own personal experience that it was difficult to see the race of a cars occupants at night on the highway. Even the State concedes in its brief that this study was based merely on Dr. Cupingood's personal belief. "The study was based on the assumption that troopers are less able to identify race at night." (Sb 80)

However Dr. Cupingood was not qualified as an expert in police sciences, investigation, human capacity for night vision, etc. This highly paid expert in statistics claimed to base this supposition on a de minimis personal experience he had while driving the southern portion of the New Jersey Turnpike at night years earlier. Ultimately he had to concede away every basis for that non expert assumption. He admitted that troopers could at least make enough observations at night to stop the small number of blacks per trooper which were at issue in this case. He conceded that he had not taken into account State Police lighting equipment or training. He was further unaware of concessions made by State Police witnesses that they could see race at night. While the State asks this Court to discredit the defense violator survey because of "observer bias", the State urges this Court sitting de novo to credit the amateurish and ill-informed suppositions of Dr. Cupingood about night patrol on the highway.

Likewise, Dr. Cupingood's radar analysis richly merited the court's finding of non-credibility. This expert ignored the differences between the radar, tac pac and general patrol units when he combined all radar tickets to come up with a useless, blended rate of all radar tickets. He made the false assumption that all troopers --including general road troopers-- have little or no discretion in issuing radar tickets --contrary to State Police testimony. The court below appropriately found that, "although a radar device is race blind, the operator may not be." (Pa. 7)

More important here was the salient point made by Dr. Kadane: Cupingood inexplicably assumed in this study what was at issue in the case.(62T 17-7 to 62T 18-19) By combining radar, tac pac and general patrol troopers to get a blended "expected" rate of black tickets he assumed away the very purpose of the analysis.(62T 38-8 to 62T 38-20) Hoping to substitute Cupingood's conjecture and flawed analysis the State asks that this Court toss out the amply supported conclusion of the Court below that "of far more significance is the defense study comparing the traffic tickets issued by the radar, tac pac and patrol units which shows again that where radar is used by a unit concerned primarily with speeders and acting with little or no discretion like the radar unit, the percentage of tickets issued to blacks is consistent with their percentage on the highway." (Sa 7)

Similarly Dr. Cupingood's DUI analysis failed because the benchmark it suggested assumed what is in question, and he mistakenly thought that DUI arrests involved no discretion. (Pa. 8). This assumption of Dr. Cupingood contradicts the admissions of Lieutenant Madden on cross examination. (27T 31-16 to 27T 34-15) Nevertheless Dr. Cupingood would ultimately concede that discretion existed in DUI arrests thus destroying the underpinning of his assumption in this study as well. Indeed Dr. Cupingood ultimately admitted that when comparing the 23% black DUI calls for service arrest standard with the patrol troopers DUI arrest rate of 41%, the possibility existed that the discretion exercised by patrol troopers led to discrimination against blacks.

Dr. Cupingood's treatment of the DUI statistics evince a telling omission. Cupingood claimed that he had never considered the 41% versus 23% disparity before it was presented to him on cross-examination because he was unaware of it. Supposedly this highly trained (and highly paid) expert was unaware of this data which was on the same page of P 13, (Da 14) which contained the 23% standard he proposed to the court. Further he claimed that he had reviewed several versions of P 13, (DA 7) but nevertheless was unaware of this crucial disparity even though it was on the same page as the 23% "benchmark" that he touted.(Da 14)

Dr. Cupingood's professed lack of awareness of important parts of the testimony and even his own proponent's "studies" warrants rejection of his "opinions." State v. Ernst, 32 N.J. 567,583 (1960). Cupingood's so-called "Mantel-Haentzel analysis" --his bastardization of that test-- (Pa 9) deserves special comment. Cupingood attempted, under the pretentious rubric "Mantel-Haentzel test," to defuse the defense's cogent demonstration of the direct relationship between increased trooper discretion and increase in percentage of black stops. While he initially referred to his pooling of data approach as a "Mantel-Haentzel" analysis," on cross examination Cupingood conceded it was not a Mantel-Haentzel analysis. On request for mid trial discovery, he was unable to accurately perform the supposed calculations which went into this "analysis."

He then engaged in a series of actions which had as their real purpose the winnowing of the actual data and make it appear less prejudicial to the State. He again combined the radar and tactical patrol units into one unit. He then condensed the 35 randomly selected days into four different length time periods acknowledging that these periods were arbitrary. His only justification for some of these time periods were that they were supposed to correlate with rush hour periods, another assumption made by him when there was no indication that there were rush hours on the southern end of the Turnpike.(37T 70-17 to 37T 72-1) He arbitrarily chose not to make his time periods correspond with the work schedules for the radar and tactical units.

Although there were 140 time periods during the 35 randomly selected days, Dr. Cupingood used only 28 time periods or 18 days. 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 unit in the same arbitrarily selected time period, but he could advance no coherent rationale for such choices.

The effect of this severe limiting of data was to artificially limit the number of stops under consideration and to create the possibility of shrinking the number of standard deviations between them. He then arbitrarily assumed that each unit issued tickets at the same rate and then declared the general road troopers issued only five "excess" tickets beyond what would have been expected. 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, that is, Cupingood computed a norm that included the stops of the general patrol trooper and then compared that figure to the stop figure for general road troopers alone. Still when Cupingood originally contrasted all radar tickets issued by the combined radar/tactical units, 21.4% black (59 of 276), to all radar tickets issued by patrol troopers, 36.2% black (93 of 257) the difference was still statistically significant. (Sa 9)

It is "manifest", as the court below found, that "the calculation is worthless." (Pa. 9) "By using weighted averages Dr. Cupingood once again assumed the answer to the question he purported to address. He assumed the patrol unit gave the same number of tickets to blacks as did the radar and tac pac, rather than test to see if they did. Even after 'winnowing' the data, the comparison between the patrol unit and the radar/ tac pac units is marginally statistically significant" (i.e. still shows that the troopers with the greatest discretion give a statistically significant higher percentage of tickets to blacks). Id. It is thus "manifest" that the judge's credibility determination concerning Dr. Cupingood's analyses was appropriate.

Cross examination brought to light just how bogus and mis-leading this study was. Dr. Cupingood was asked a hypothetical question: If the benchmark was 10% black and there were 1,000 stops; the stops were either all-inclusive or randomly selected; would 100 be the number of expected black stops? He responded that 100 would be the number of "expected black stops," repre-senting "exact parity." If there were 120 black stops, there would be an "excess" of 20 stops over what was expected; if 200, an excess of 100; if 600, an excess of 500.

After establishing what "expected black stops" and "excess black stops" meant in the example given above, Cupingood was later asked to apply his analysis to a hypothetical situation where:

The combined Radar/Tactical Unit stops 9 whites and 1 black; patrol troopers stop 10 white and 20 blacks.

Cupingood would take 21 black stops of the total of 40 and determine that 52.5% of all stops would be "expected" to be black. Since the patrol troopers made 30 stops, he would "expect" 52.5% of them or 15.75 to be black. Thus, since the patrol troopers stopped 20 blacks, they only stopped 4.25 more blacks than would be "expected". (52T 110-18 to 52T 111-16)

Cupingood was asked to further assume that 10% black is the valid benchmark; he admitted that the real number of expected black stops would have been 3 (3 of the 30 stops made by the patrol unit). In this hypothetical, the excess black stops would have been 17, but his bogus analysis has the effect of reducing the excess from 17 to 4.25. Where 10% blacks should be stopped, Dr. Cupingood's analysis approves a stop rate of 52.5% black.

Further assume that the general road troopers are riddled with members of the KKK, producing the high percentage of black stops, should a statistician still add in the patrol stops to calculate the number of expected black tickets? Yes, according to Dr. Cupingood, because that is how the test is done. (52T 110-18 to 52T 111-16)

The court below enjoyed a further distinct vantage point in which to view Dr. Cupingood's credibility as it related to his "Mantel-Haentzel" analysis. Dr. Cupingood had 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 herein 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 (in that case the selective enforcement issue centered only on in state versus out of state motorists). When asked why the court was not given this crucial information in Warren County Dr. Cupingood answered below that he did not provide it because he had not been asked. This concession highlights, as well as anything in this case, why a fact finder, interested in the search for the truth could justifiably reject Cupingood's testimony. Could it really be doubted that the court was more than entitled to view Dr. Cupingood as one whose "scientific, technical, or otherwise specialized knowledge" was used not to "assist the trier of fact to understand the evidence or determine a fact in issue" but to confuse these issues.(31) See generally N.J.R.E. 702.

In State v. Sprainis (Ind.# 90-08-0375), another Warren County case, Dr. Cupingood had also offered the "expected tickets" explanation for the more frequent stopping of out of state drivers. His conjecture in that case was chillingly similar to his musings herein: that out of state drivers perhaps drove in such a manner as to call attention to themselves. In conjunction with his hypothesis in the case at bar that blacks on the Turnpike perhaps drive so as to stand out and thus explain their disproportionally high number incidence of stop-- the world according to Cupingood sounds more in satire than insight. In Cupingood's conjecture world, out of state motorists drive badly; blacks drive badly, only white New Jerseans bear the torch of vehicular normalcy. It is indeed "manifest" that the court below was entitled to dismiss Dr. Cupingood's efforts to "assist" it with such concepts.

In fact, it was incumbent upon the court below to reject Dr. Cupingood's analyses. Far from assisting the trier of fact in this case, Cupingood gave unsubstantiated opinions not grounded in the facts of record in the nature of "net opinions" Myrlak v. Port Authority of New York and New Jersey,694 A.2d 575,302 N.J. Super.1,9 (App.Div. 1997). Also see Matter of Yaccarino, 117 N.J. 175, 196, 564 A.2d 1184, 1195 (1989). On numerous occasions when he was forced to by vigorous cross examination Dr. Cupingood conceded away the basis of most of his opinions. As such "the fact finder may not rely upon that opinion once the factual basis has been undermined." Todd v. Sheridan, 268 N.J. Super 387, 409( App. Div. 1993). The State now complains that Dr. Cupingood was not credited below but in essence would have this Court ignore precedent such as Johnson v. Salem Corp., 97 N.J. 78, 91, 477 A.2d 1246 (1984) which requires that an expert opinion is entitled to no greater weight than the facts and reasoning upon which it is based. Further, a fact finding judge, like a jury, is empowered to reject some or all of an expert opinion. County of Middlesex v. Clear Water Village, Inc., 163 N.J. Super 166, 174, 394 A.2d 390 (App. Div. 1978).

In base relief to Dr. Cupingood the defense expert witnesses were very credible.(32)



Because the State's statistical case and its experts testimony posed no credible challenge to that of the defense, the trial court correctly found the case unrebutted. Kennedy, supra 247 N.J. Super. at 34. The trial court was entirely justified in crediting it. The Court accurately noted that in appropriate cases statistics are sufficient to prove effect and intent. "Statistics may be used to make out a case of targeting minorities for prosecution provided that the comparison is between the racial composition of the motorist population violating the traffic laws and the racial composition of those arrested for traffic infractions on the relevant roadway patrolled by the police agency." (Sa 15) (citing Wards Cove, supra, State v. Kennedy, supra). The Court went on to accurately note "discriminatory intent may be inferred from statistical proof presenting a stark pattern or an even less extreme pattern in certain limited contexts." (Sa 15) citing McClesky v. Kemp, 481 U.S. 279, 107 S.Ct. 1756, 95 L.Ed. 2d. 262(1987).

The Court below accurately found that "Kennedy, supra, implies that discriminatory intent may be inferred from statistical proof in a traffic stop context probably because only uniform variables (Title 39 violations) are relevant to the challenged stops and the state has an opportunity to explain the statistical disparity." (Sa 15) Statistics alone in a case such as the present could support the appropriate inference of discriminatory purpose. (Sa 15) Also see generally Bazemore v. Friday, 478 U.S. 385, 106 S.Ct. 3000, 92 L.Ed. 315 (1986); Castaneda, supra; Turner v. Fouche, 396 U.S. 346, 359, 90 S.Ct. 532, 539, 24 L.Ed. 2d 567 (1970). Disparate impact can lead to an inference of discriminatory purpose when it shows a "clear" or "stark" pattern. Village of Arlington Heights v. Metropolitan Housing Development, 429 U.S. 252, 266, 97 S.Ct. 555, 564 (1977). Also see Washington v. Davis, 426 U.S. 229, 242, 96 S.Ct. 2040, 2048-49 (1976).

Here the State asserts that the supposed "complexities" of police discretion render this case unproven by statistics. (Sb 91) But this central premise is unanchored in the record below. Little complexity --very few variables--are involved in an officer making a stop. Concededly; the patrol troopers enjoy great discretion, but the legitimate variables upon which it may operate are simple. The abuse of their discretion is the issue in this case--the incorporation of improper, race based factors. Complexity, however, is not involved.

Nevertheless as the Court below noted "[t]he discretion devolved upon general road troopers to stop any car they want as long as Title 39 is used evinces a selection process that is susceptible of abuse." (Sa 16) The patrol troopers discretion was virtually unbridled. Traffic enforcement was appropriately carried out when units with less or minimal discretion than general road troopers are involved, traffic enforcement yields a black stop rate far closer to the percentage of blacks in the violator survey. The total discretion of the general patrol trooper raises particularly acute concern given the stark statistics it produces. The Court thus soundly relied on Castaneda v. Partida, supra, 430 U.S. at 494, 97 S.Ct. 1272, 1280, which holds that "a selection procedure that is susceptible of abuse...supports the presumption of discrimination raised by the statistical showing." Id.

There is one other subtle yet inaccurate premise within the State's simple allegation that great complexity is involved here. This argument is in essence a rehashing of the totally discredited Cupingood view concerning the "tail of the distribution" or "those violators most likely to stand out." Since the great majority of supposed violators did not even receive traffic tickets the supposed unbridled discretion needed to track the most egregious violators is a fallacious assumption --for so many who were stopped did not even receive a summons.

Similarly, the testimony of Trooper Bauman underscored the fact that the State Police do not concentrate on motorists who are somehow more egregious violators. Although troopers were regularly evaluated on the number of tickets and warnings given out per patrol hour they were not required to issue warnings or tickets based on a notion of seriousness or egregious behavior. (24T 4-20 to 24T 14-5; Da 94 to 130)



B. The Credible Direct and Circumstantial Non-Statistical

Evidence Likewise Proved Discriminatory Effect And Purpose



Even though the defense statistical case established racial profiling, the Court also heard a vast amount of non-statistical corroboration. "The defense did not rest on its statistical evidence alone."(Sa 10) The State mischaracterizes the factual findings on the non-statistical evidence: "At worst, all the trial court could say was that the State Police hierarchy failed to take sufficient action to prevent abuses of power by certain troopers patrolling the southern end of the ... Turnpike."(Sb 103)(emphasis added) Ignoring the record and attempting to denigrate the Court below the State contends "the court below was satisfied by little scraps of offhand comments and a perceived failure to react to situations hindsight may show more troubling than they appeared at the time."(33)(Sb 105)

However the opinion of the trial court amply demonstrates how mistaken the State is. The Court found from the defense case in chief and from cross examination of the State's witnesses that an entire scheme and culture within the State Police corroborated troubling statistics and verified the existence of profiling. (Sa 10-14)

Troopers Wilson and Ruff described in detail the profile, how it was taught and how it was maintained. If Wilson and Ruff were weakened in their credibility by virtue of the circumstances of their release from the State Police, their credibility was ultimately reinforced and the totality of their testimony corroborated by State Police witnesses. P-14(DA 58 to 61), Caffrey's training outline corroborates Trooper Ruff's recollection of the in-service instruction where racial and ethnic connections to criminality were made. The training film "Operation Pipeline" showed the emphasis on race.(34) The Jamaican Posse video, P-9 , demonstrated the blatant racial insinuations allowed by State Police training. Trooper Manikus overeagerly attempted to discredit Wilson and by his zeal corroborated the existence of the profile. Trooper Monticello was presented by the State to undercut Ruff and by the end of his cross-examination was at a loss to offer any plausible explanation for his actions other than the obvious: he engaged in profiling and through the one on one coaching system of the State Police attempted to impart it to Ruff.

Moreover, the State's reliance on SOP F55, (Pa 62), and the evidence regarding SOPs is contradictory and illusory. Detective Grant testified that troopers do not place great reliance on SOPs. The evidence was extensive that the State Police did little or nothing to enforce SOPs in this and other areas. Indeed an inference emerges that SOPs existed despite an emphasis on the contrary in everyday practice. For example, in every day operation of the profile the State Police failed to abide by their own SOP to maintain racial identifiers. In the operation of the DITU, the State Police failed to maintain the records required by the SOP on the subject. (Da 73)

The State cannot have it both ways. It cannot insist that SOP F55(Pa 62) corroborates that the State Police followed a proper course when the unrebutted evidence was that troopers, as a matter of course and daily custom, paid very little attention to SOPs. This is particularly so in the area of SOPs which required the State Police to keep track of their activities and maintain data on race and DITU activities. This failure to abide by protocols for compulsory maintenance of data regarding treatment of disfavored groups amounted to a scheme of concealment. Departures from the normal procedural sequence are relevant in corroborating racially invidious activities. Village of Arlington Heights, supra, at 267.

Further, references to profiling existed in numerous introduced documents. Although, as the Court stated in colloquy on January 11, 1995, these references might not necessarily implicate Attorneys General in profiling, based on the wealth of testimony indicating the active involvement of the State Police in preparing and training and acting on profiles they are probative of State Police conduct.(Pa 12) No reasonable explanation of the profile language of various documents mentioned was ever offered.

Despite the pat denials of profiling offered by State Police witnesses during direct examination Judge Francis most accurately described the state of the evidence as follows: "despite the paucity of training materials and lack of periodic and complete impact evaluations and studies, a glimpse of the work of DITU emerges from preserved checklists and the testimony of Sergeants Brian Caffrey and David Cobb."(Pa 11) The Court noted that Sergeant Caffrey "condoned" the following document which survived:

"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 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."

Why would a trooper who was acting in a racially neutral fashion become reluctant to stop cars as a result of a news story charging that racial minorities were being targeted by the State Police? Contemporaneous statements are relevant in an examination of allegations of discrimination. Village of Arlington Heights v. Metropolitan Housing Development Corporation, et al. 429 U.S. 252, 267-68, 97 S.Ct. 555(1977).

Incredibly, at this late hour the State sidesteps: "the State hesitates to interpret the Fash statement in the absence of explanation by either of the actual speakers."(Pb 14) Surely, to paraphrase a State concept, sometime during the six months "quagmire" below, one of those two speakers could have been produced. Manifestly the State did not rebut the clear implication of the "Fash memo." Its failure to do so alone adequately supports the Judge's credibility determination to the contrary of any race neutral explanation. State v. Clawans, supra. The Court correctly observed that even State's witness AAG Susswein confirmed that the "Fash memo" provided troubling advice.(Pa 12)

In any event, mere denials of invidious intent are insufficient to rebut prima facie proof of invidious intent. Batson, supra, 476 U.S. at 106; Gilmore, supra, 511 A.2d 1166.

Further questions regarding DITU arose from the convenient insistence of former members that there were no training materials remaining from when they were trained and that no materials were handed out to the trainees. DITU checklists and announcements refer to the existence of materials having been shown or given to trainees. (Da 62 to 72) To paraphrase the court below in its reference to the "Fash memo"(Pa 11-12), why would DITU trainers supposedly acting in a racially neutral fashion when they handed out training materials opt to deny the obvious existence of those training materials? The fact that DITU "lost" almost all of its required information (Da 32 to 38) certainly was a "departure from normal procedure." Village of Arlington Heights, supra, 429 U.S. at 267-68.

Judge Francis' findings were similarly well supported when he found a more active State Police hierarchical involvement than the State's purported failure "to take sufficient action to prevent abuses of power."(Pb 103). The opinion amply demonstrates that in actuality Colonel Pagano and the hierarchy of the State Police engaged actively in constructing an environment in which those "abuses of power" could thrive.

In an unseemly fashion Colonel Pagano and Major Teszla passed the buck back and forth to one another during their testimony alleging that each thought that the other was looking into profiling. Yet they both undercut these assertions when they conceded that no systematic investigation for profiling was sought opting instead to allow the individual case by case complaint system to substitute for real investigation.

Both Teszla and Pagano conceded that they knew that the individual motorist versus trooper complaint system could not deal with or detect a pattern of profiling allegations that both knew had been made. (See generally 41T 63-8 to 41T 68-14; 70T 99-17 to 70T 104-23) This refusal to allow meaningful inquiry into widespread allegations of racial targeting was a part of the environment which allowed "a selection process susceptible of abuse" to operate. It guaranteed that a " as long as he uses Title 39 [a trooper] can stop any car he wants." (Sa 11) Casteneda, supra.

Relevant to the State's complaint about the length of this trial and the trial court's factfinding are concessions that Colonel Pagano made. Although he professed concern about citizens' rights he did nothing in the face of persistent, well-documented allegations of profiling. Pagano abdicated his supervisory responsibility, leaving it for the courts to unravel allegations of profiling when he reasonably could have prevented them had he desired to do so. "In short, he left the issue of discrimination up to the courts and months of testimony in this and other counties at state expense." (Pa. 14)(emphasis added) This fact and finding not only undercuts the State's attempt to criticize the proceeding below because of its length but was a most appropriate concern for the judge when he exercised his responsibility to determine credibility.

The conscious decision of Colonel Pagano and the State Police hierarchy to do nothing other than challenge critics to make their case in the courts is hardly as the State would have it, "little scraps of offhand comments and a perceived failure to react." (Sb 105-106) These were admissions at the heart of the State Police managerial, supervisory and instructional processes. Overwhelming evidence propelled Judge Francis' finding that Colonel Pagano was involved in the creation of other aspects of the environment which encouraged abuses of power to thrive. (SA 13 - 14) In the opposite of a mere failure to supervise, Col. Pagano ordered the creation of a video presentation wherein he told his underlings to "keep the heat on." (Sa 13). He paid lip service to race neutrality in law enforcement but essentially told his troopers that he was not going to investigate allegations of racial profiling nor did he wish ongoing conduct to cease. He acerbically denigrated those who had come forward with allegations of profiling.(35) His video address to the troops emphasized that he did not place as high a value on protection of constitutional rights as searching for drugs.

A clearer exhortation to the troopers could not have emerged. This message assured troopers that anyone who made profiling allegations would receive no serious attention from the State, but would have to fight tooth and nail through the courts to prove any allegation. The State Police commanders would not consider racial profiling allegations and they wanted troopers to stay the course in everything that they were doing. This message was much more than a failure to rein in on "abuses of power," it encouraged them. It is much more than a failure to supervise or to train; it was active involvement in creating the environment in which those abuses flourished.

Colonel Pagano did all of this while he was also actively involved in supervising DITU.

Ignoring the obvious support for the Court's findings, the State attacks Judge Francis personally, particularly with respect to the evidence surrounding Colonel Pagano's involvement. In the State's view "the attack made on Colonel Pagano in the trial court's opinion, which bordered on being vicious, was totally unsupported." (Pb 113) This comment is particularly inappropriate when read in tandem with the State's baseless allegation that the lengthy hearing below was a product of defense or Court actions. The length of the hearing below was determined years earlier when the State Police decided that it would not be concerned with what the State aptly describes as "abuses of power." The State's conduct prolonged this case; e.g. by failing to abide by discovery orders(36), or by its own witness' evasions e.g. Trooper Caffrey attempting to deny that "drug interdiction" was the priority for the DITU.

The State now asks this Appellate Court to do what a conscientious lower court would not do: credit State Police witnesses merely because they are offered by the State Police. See generally State v. Staples, supra; State v. Jones, supra. The courts of New Jersey have a prouder tradition of judicial integrity. Given certain State Police admissions e.g. blacks do not drive worse than whites and the fair inferences to be drawn from the lack of credibility of the State's expert, Judge Francis found the existence of profiling. This evidence independently proved what the statistics starkly demonstrated. Although the State feels that the mere denials of State Police witnesses should carry the day, the Judge was not required to accept those denials. The success of proponents of race discrimination claims does not rely on the willingness of their adversaries to admit that discrimination occurred; to credit such convenient denials would make the Equal Protection Clause "a vain and illusory requirement." Batson v. Kentucky, supra; Also see Sheridan, supra.

Indeed, one would hardly expect assent to the charge from the wrongdoer's own mouth. Company officials and others in authority "have become too sophisticated... to leave glaring tracks" to mark a path of racial bias. See Barnes v. Yellow Freight Systems, Inc., 778 F. 2d 1096, ll0l (5th Cir. l985); Segar v. Smith, 738 F. 2d 1249, 1278-79 (D.C. Cir. l984) ("the days of Bull Connor are largely past; discrimination now works more subtly, yet its effects are no less pernicious".)

Moreover, in certain important respects, the denials in this case do not even stand out as categorical or in any way convincing. In this case, they seemed to flow more from ignorance than knowledge, more from neglect regarding the true state of affairs in the agency than from careful review and research. Thus, they do not remotely resemble well-informed, detailed testimony about selection procedures that have on occasion struck a Court as useful. Cf.Castenada, supra, 430 U.S. at 498.

To illustrate, Major Tezsla protested that no discrimination occurred on his watch. But pressed to acknowledge that he knew during his assignment as Troop D commander of complaints of racial profiling on the Turnpike, he conceded that he had done nothing to investigate whether blacks in fact were being stopped in numbers disproportionate to their population on the Turnpike. Rather, he said, he thought that "the Colonel"--Clinton Pagano--was handling the matter, and Tezsla was confident that the Colonel was taking care of any investigation that might be needed.

By the same token, Clinton Pagano made clear that he initiated no review of stopping practices and no review of "stop" data. He felt confident, however, that his troop commanders, such as Major Tezsla, would have looked into whatever was necessary to diagnose and remedy any problem. To the extent that Messrs Tezsla and Pagano were in effect denying the existence of any custom or practice of racial profiling, the best that can be said is that their protestations reflect an almost comedic lack of meaningful communication about the issue, and an absence of any intent effectively to deal with the problem.

Far from representing evidence to rebut the defendant's statistical case, this reciprocal exercise in ignorance and neglect constitutes gross negligence, and indeed deliberate indifference, to the rights of the public, and in fact serves to prove the defendants' case. See Spell v. McDaniel, 591 F. Supp. 1090,1107 (E.D. Carolina 1984); Owens v. Haas, 601 F.2d 1242 (2d Cir. 1979) cert. denied 444 U.S. 980 (1979).

Persistent, wide spread discriminatory practices "...could well be so permanent and well settled as to constitute a 'custom or usage, with the force of law.'" Monelle v. Department of Social Services of City of New York, 436 U.S. 658, 691, 98 S.Ct. 2018, 2038 (1978). In an analogous, less extreme circumstances, municipalities have been held responsible for constitutional violations caused by inadequate training of police. City of Canton, Ohio v. Harris, 489 U.S. 378, 109 S.Ct. 1197 (1989).

The State alleges "at no point does the trial court identify actual evidence of purposeful discrimination." (Sb 114) Through this bare assertion it asks this Court to ignore the wealth of powerful circumstantial and direct evidence on purposeful discrimination. The State's position runs counter to the basic premises upon which a jury fact-finder would be charged. For example, with respect to the contradictory statements of numerous witnesses a fact finder could give those witnesses' testimony such weight it deems proper. State v. Ernst, 32 N.J. 567, 583(1960). It could believe some and disregard some or disregard it all. Id. The State further wants immunity from the often more powerful and more satisfying weight of circumstantial evidence. State v. Muniz, 150 N.J. Super 436,441 (App. Div. 1977). "An invidious discriminatory purpose may often be inferred from the totality of relevant facts... ." Washington v. Davis,supra at 426 U.S. at 241-42.

An organization's leadership's failure to react appropriately to complaints, including a failure to inform itself of its agents' practices, can equal a de facto "policy" within the meaning of the civil rights cases. See, e.g., Thompson v. City of L.A., 885 F. 2d 1439 (9th Cir l989) (hierarchy's inactivity in the face of notorious allegations of officers' unconstitutional conduct suffices to find institutional liability on the police department's part for future incidents) Wilson v. Chicago, 707 F. Supp. 376 (N.D. Ill. l989) Turpin v. Mailet, supra,

Plainly, a failure to take corrective action, or properly to train officers to handle, in a constitutional manner, situations obviously fraught with risk to the public's rights may also constitute "deliberate indifference" to the rights of the public, and so may constitute a "policy", even though no written rule or directive exists; it is, in essence, a policy of conscious neglect. See Doe v. Barrington, 729 F. Supp 376, 389 (D.N.J. 1990)(37)

Tacit acquiescence in a pattern and practice of unconstitutional behavior--even in one flagrant violation--suffices to establish organizational responsibility. Turpin v. Mailet, 619 F.2d 196.

The State has failed to remotely demonstrate that the Court below was not amply supported in finding discriminatory effect and purpose. It is manifest that discriminatory effect and purpose were proven below not only in the stark statistics but in the wealth of direct and circumstantial evidence. The State's ad hominem jeremiad against the trial judge and his findings is really a complaint that he had the clarity and fortitude to find credibility where it obviously lay, and to reject the State's offer of mere "denials and the conjecture and flawed studies of Dr. Cupingood."(Sa 16)

III. State Constitutional Law And New Jersey's Commitment To

Eliminate Racism Require Suppression On The Showing

Made Below Without Individual Hearings.



A. State v. Marshall Rejected McClesky v. Kemp As A Matter Of

State Constitutional Law And Indicates Suppression







On appeal the State relies on McClesky v. Kemp, supra to argue that even after the defense had proven a de facto policy of racial profiling, individualized hearings were required to prove the application of the policy as to each individual defendant in the instant matter. The State's argument is flawed on many levels, not the least of which is that it ignores the obvious differences between federal law and the New Jersey Constitution under Articles I, Paragraphs 1 and 7.

At the outset it should be noted that McClesky, supra, supports the decision of the Trial Court below. McClesky allows that statistical proof is sufficient to prove effect and purpose in selective enforcement cases where few variables exist.Id. at 481 U.S. 292-96. What McClesky actually holds, not relevant to the instant matter, is that in the unique circumstances of capital jury deliberations stark disparities will not carry the day.Id. The McClesky Court carved out this unique exception for capital litigation noting that the complexities of the capital jury decision making process were such that to allow a challenge in that unique situation based on statistics could call the entire criminal justice system end product of verdicts into question. McCleskey, supra at 481 U.S. 297.

The New Jersey Supreme Court in Marshall, supra, rejected even that limited application of McCleskey, characterizing the McClesky Court's concern for potential results not actually before it as a "parade of horribles." Marshall, supra at 613 A2d 1110.

However, the complexities facing a capital penalty phase jury are not present in the decision of troopers to focus on black drivers or the decision of their agency to tolerate, condone and encourage selective enforcement. There is nothing complex about the decision of the officers on patrol to stop a car for a traffic violation. Nor is the ability to use statistics to challenge racism in "traffic" enforcement(the use of Title 39) a threat to the integrity of the criminal justice system; the court in Kennedy could not be clearer about the propriety of statistical evidence in such cases.

Indeed, the State makes an fantastical leap of logic to assume that the decision of an officer should enjoy the same deference given the prosecutor in his decision on whether to indict or not to indict. The decision of a policeman to effectuate a stop is cloaked with no such presumption. Police stops and searches invite routine review, based on routine principals and ground rules, with no deference flowing toward the almost ministerial actions of the policeman. See State v. Johnson, 68 N.J. 349 (1975); State v. Valencia, 93 N.J. 126, 128-30 (1983).

More importantly, under our State Constitution and New Jersey's transcendent commitment to race equality and neutrality, Marshall, supra found the reasoning of McClesky inappropriate for New Jersey. Indeed, the Marshall court met head on the McCleskey court's "parade of horribles." Whereas McClesky, supra feared that the normal equal protection principles and use of statistics could somehow result in a "parade of horribles" if used in the capital jury decision making context, Marshall, supra was prepared to face even that "terrible reality." Marshall, supra at 1110. New Jersey's historic commitment to ending racism requires that the death penalty itself is subject to review upon a strong statistical showing:

"This Court cannot refuse to confront those terrible realities. We have committed ourselves to determining whether racial bias and ethnic bias exist in our judicial system... .

If a court concludes that the statistical evidence is so deviant as to compel a conclusion of substantial significance, the court must then look to the circumstances surrounding that statistical showing to determine its full constitutional import. The constitutional importance of the statistical showing depends in part on the degree of subjectivity involved in the selection mechanism. The more discretionary the selection process, the more concern for bias. In addition, courts consider the time period over which violations are alleged to have occurred, and, finally, courts will look at the State's efforts to deal with the problem of potential bias. Marshall, supra at 613 A.2d 1109 - 1111.(citations omitted)(emphasis added)





Because of New Jersey's transcendent mission to rid this state of the cancer of racism our Supreme Court recognizes stark statistics as sufficient proof of racism in the administration of the death penalty. New Jersey holds the State to a higher standard than the United States Supreme Court as evidenced in McClesky. Opting to confront even the most terrible of realities, New Jersey is prepared to face, without creating arbitrary distinctions, race non-neutrality no matter what the inconvenience. Against Marshall's rule of zero tolerance for racism in any form, the State's attempts to have this Court backtrack and adopt the reasoning of McCleskey, is a prompting this Court should soundly repudiate.

Marshall is not a separately carved exception to New Jersey law to avoid a real or imagined "parade of horribles", but the culmination of a consistent course set by our courts, especially in the areas of citizens rights to privacy, to be free from unreasonable searches and seizures and to live free from the scourge of racism. The instant case sits at the crossroads of all of these rights. And the Marshall court's specific admonition about the danger of discretion-filled selection mechanisms resonates loudly in the present case where the evidence showed rising levels of black stops when trooper discretion increased.

Article I, Paragraph 7 of the New Jersey Constitution affords greater protection against unreasonable searches and seizures than the federal constitution. See State v. Pierce, 136 N.J. 184, 209 (1994):



"That body of decisional law reflects a steadily-evolving commitment by our state courts to provide enhanced protection for our citizens against encroachment of their right to be free from unreasonable searches and seizures." Id.

This commitment embraces enhanced substantive and procedural protections. Thus, New Jersey's citizens enjoy the following additional protections:

1. To be free from "good faith" violations of their rights. State v. Novembrino, 105 N.J. 95, 519 A.2d 820, 854-857 (1987)

2. To be free of searches of their garbage. State v. Hemple, 120 N.J. 182 (1990);

3. To be free from warrantless inspection of toll billing records. State v. Hunt, 91 N.J. 338 (1992);

4. To be free from unadvised consent to search. State v. Johnson, 68 N.J. 349 (1975);

5. To be free from being required to exit a motor vehicle stopped in a motor vehicle violation where one is a passenger. State v. Smith, 134 N,J, 599 (1994);

6. To be free from searches of one's vehicle incident to arrest for a motor vehicle offense. State v. Pierce, supra, disregarding New York v. Belton, 453 U.S. 454 (1980);

7. To be free from searches of one's vehicle incident to other arrests, Id.(38)and

8. To enjoy the procedural right to challenge the unlawful seizure of evidence whenever one has a possessory interest in the item seized. State v. Alston, 88 N.J. 211 (1981).(39)



Smith and Pierce demonstrate an enhanced sensitivity to the rights of the motoring public. The Pierce court specifically recognized the potential for police abuse of the motor vehicle laws to stop and arrest motorists in order to obtain the opportunity to search their vehicles. Indeed, such sensitivity to privacy rights was one of the primary reasons for the final holding. The State Police practices demonstrated in the present case --stops designed to afford opportunities to obtain "consent" to search-- are the very embodiment of the abuse that our Supreme Court would condemn.

To the extent that federal law might not require suppression in these cases, New Jersey law would.

Complementing New Jersey's heightened protection of the right to be free from unreasonable searches and seizures is the recognition within our law that racial harassment will not be tolerated under the guise of Fourth Amendment objective standards. Accordingly, State v. Kennedy, supra, envisions statistically based analyses of traffic stop activities to prevent racial harassment. "Defendants do not seek information concerning the hidden thoughts or motivations of individual police officers. Instead, the inquiry they request focuses upon the existence or non-existence of a course of conduct, one that presumably can be proven or disproven by objective evidence." Kennedy, supra at 30. "[W]e afford no legal protection to police officers who invade the privacy of citizens as a means of racist or political harassment. State v. Bruzzese, 94 N.J. 210, 226 (1983). Clearly, the most objective proof of racial harassment is statistics and the circumstantial evidence that corroborates them.



B. Suppression Without Individual Hearings Is Essential

To Vindicate This State's Policy Of Eliminating Racism

The confluence of New Jersey search and seizure as well as equal protection law dictates the suppression result here.(40) In Marshall, supra the court decried the U.S. Supreme Court's refusal to find discriminatory purpose in McClesky v. Kemp, 481 U.S. at 381 even though the statistical evidence in that case was that which would be sufficient were normal equal protection principles to apply. "It shrank from recognizing McClesky's claim because "taken to its logical conclusion, [it] throws into serious question the principles that underlie our entire criminal justice system." Marshall, supra quoting McClesky, supra. But our Supreme Court stated "[t]his Court cannot refuse to confront those terrible realities. We have committed ourselves to determining whether racial and ethnic bias exist in our judicial system and to 'recommend ways of eliminating it wherever it is found.'" Id. at 1110.

In the face of racism New Jersey law departs forcefully from federal law. Suppression is the only appropriate remedy where racism is the essence of the police misconduct. "As a people, we are uniquely committed to the elimination of racial discrimination. All of our institutions reflect that commitment." Marshall, supra. at 207. Ridding this state of the "cancer of racism" is one of this state's highest priorities. Fuchilla v. Layman, 109 N.J. 319, 334, 537 A.2d 652(1988). Also see Dixon v. Rutgers, 110 N.J. 432, 541 A2d 1046(1988). "'[Racial] discrimination threatens not only the rights and proper privileges of the inhabitants of the State but menaces the institutions and foundation of a free democratic State... .'" Marshall, supra at 207, quoting N.J.S.A. 10:5-3.

"Here, defendants have proven at least a de facto policy on the part of the State Police out of Moorestown Station of targeting blacks ... ." Sa 16(emphasis added).

Because this Court should affirm the decision of the trial court finding a de facto policy of targeting blacks and suppressing the evidence seized because of that policy individual hearings should not be held. The most significant and perhaps only issue for determination at an individual hearing would be whether any particular defendant was stopped from among all the other motor vehicle violators on the Turnpike because of the racial profiling practices of the State Police. Therefore the hearings would become an inquiry into the subjective mindset of the individual officer.(41) In practical effect, depending upon the guidelines and presumptions established for the hearings either the State would be exceedingly unlikely to prevail in any of them resulting in a waste of resources, to credit the denial of an officer would make illusory the guarantees and protections of the equal protection clause.

"Were we to adopt a subjective rule, practically every search and seizure case would require the court to engage in a costly and time consuming expedition into the state of mind of the searching officer. Kennedy, supra at 28.

Because the eradication of racism has long been one of the highest priorities of the State of New Jersey and its courts, the policy and practice of the State Police in targeting minority motorists is so offensive and so outrageous that no remedy or sanction short of outright suppression can vindicate the individual and societal rights involved. Anything less will serve to denigrate the carefully established record of our courts in opposition to discriminatory practices. Further, another layer of extensive litigation to vindicate the rights involved will allow that the right of persons to be free of the de facto policy of discriminatory targeting to become a vain and hollow right. Batson, supra.

The discriminatory practices of the State Police here are in no way analogous to the acts of a police officer who in any given individual case may conduct an unconstitutional search out of ignorance of the law or zeal to make a particular arrest. Here a carefully orchestrated plan was laid to discriminate against minorities by the State's foremost law enforcement agency which in turn went to extraordinary lengths to effectuate the plan and then to conceal it from court and citizen scrutiny. A remedy short of outright suppression would only encourage police organizations to continue with their activities in hopes that they will successfully conduct the individual hearings in the same way the State Police were able to shrug off complaints of racial targeting by considering citizen complaints only on an individual basis. In that event the most important object of any remedy intended to address unlawful police conduct-- to discourage it in the future-- will be lost.

"Recognition of discriminatory enforcement as a basis for exclusion of evidence is consistent with our case law. An essential objective of the exclusionary rule is to deter unlawful police conduct... The central purpose of the judge-made remedy is to deter future insolence in office by those charged with enforcement of the law." Kennedy, supra at 30(citations omitted)



It is ironic that were this Court to adopt the State position that individual hearings should follow, then it would adopt as a matter of law the very system of trooper versus motorist hearings that Col. Pagano and Major Teszla conceded were inadequate to address profiling.

In order to prevail the troopers would have to testify to their subjective intent not to discriminate. Subjective testimony may not be offered to obtain an order of suppression. State v. Bruzzese, supra. To allow the use of subjective testimony in a case like this is the kind of "heads I win, tails you lose" approach that undermines citizen confidence in the court's commitment to protect individual rights.

Further, the State would be rewarded for its misconduct by being handed what State v. Novembrino would not allow, the opportunity to avoid the objective evidence by claiming a good faith exception even after a de facto policy had been proven by objective evidence. Such a scheme would detract from minority confidence in the judiciary by allowing the State Police a judicially sanctioned avenue from which to escape the consequences of such outrageous police misconduct.

"Recognition of discriminatory enforcement as a basis for exclusion of evidence is consistent with our case law. An essential objective of the exclusionary rule is to deter unlawful police conduct... The central purpose of the judge-made remedy is to deter future insolence in office by those charged with enforcement of the law.... The objective is to compel respect for the constitutional guaranty in the most effective way-by removing the incentive to disregard it. The rule also implicates concerns of judicial integrity. The judiciary should not lend its aid to brazen lawlessness by passively accepting the fruits of police misconduct. It is morally incongruous for the State to flout constitutional protections and at the same time demand that its citizens obey the law." Kennedy, supra at 30.(citations omitted)(emphasis added)



Continuing its personalized attacks against the trial judge the state alleges that "[w]ithout any basis in fact, Judge Francis stated that, if individual hearings were held, he expected that members of the New Jersey State Police who were involved would come into court and perjure themselves."(Sb 118) This inflammatory allegation hardly describes what the trial court decided. Indeed, the Court below accurately described how, outside of the capital sentencing exception, McClesky's reasoning supports the notion that in certain contexts discriminatory intent may be found from statistics. (74T 18-13 to 74T 18-19) The court went on to note that Kennedy as well supports the remedy of suppression in the absence of individualized hearings once a de facto policy of profiling has been proven. (Id at lines 20-24) Judge Francis' reasoning and his opinion embodied the principles of state and federal law which guide the suppression issue without individual hearings. The court pragmatically assessed the fact that allowing for a good faith or subjective exception would in essence "leave the defendant a right without a remedy." State v. Gilmore, 103 N.J. 508,533, 511 A.2d 1150 (1986) and turn the Equal Protection Clause into a "vain and illusory requirement." Batson,supra at 476 U.S. 98(quoting Norris v. Alabama 294 U.S. 587(1935)):

"If a court ignores the general statistics and decides it based on the feel of the trooper's credibility, in effect you've rendered the results of the general statistics a loser and a simple way for the State to circumvent the statistics, which again, I found, are stark." (74T 18-8 to 74T 18-12)



IV. The Trial Court's Refusal To Admit The Department

Of Transportation Speed Monitoring Reports

Was A Proper Exercise Of Discretion







The trial judge's refusal to admit the speed monitoring reports offered by the state was a proper exercise of discretion. This exclusion in no way requires this Court to disturb the order below. Defendants DaCosta, Monroe and Jackson primarily rely upon the argument submitted by the Office of the Public Defender on this point.

The reports could not have aided the Court, because they contained reporting and statistical errors, undermining their reliability, and did not accurately reflect speeding patterns on the Turnpike. The reports on their face contain clear errors and inconsistent calculations, as the state's expert, Dr. Cupingood, conceded. To give one example, the speed monitoring report for the third quarter of 1991, (Pa 47), stated that the "median speed" defined in the report itself, as the speed at which fifty per cent of the vehicles travel below was 54.9 miles per hour, yet the same report said that 76.6 per cent of vehicles exceeded 55 miles per hour. (55T 85-14 to 55T 87-16; Pa 51) These calculations had the effect of purporting to report the behavior of at least 121.6 per cent of the traffic, a factual impossibility. To give but one other example, the same report reflected that 15 per cent of traffic exceeded 65.5 miles per hour, and at the same time reported that only 12 per cent of traffic exceeded 65 miles per hour. (55T 88-11 to 55T 88-22; Pa 51) Such conflicting recitations render the report unusable, as the Court could not determine which of the findings to utilize, but also raised such questions about the reliability of the data collection and compilation as to render them unreliable.

In addition to the fact that the reports appeared to be rife with errors and inconsistencies evident on their face, they had been prepared by those with a substantial financial incentive to under-report the numbers of Turnpike motorists who exceed 55 mph. The N.J. Department of Transportation prepared the studies in order to qualify for the full measure of federal highway funds, which required them to demonstrate their obtaining substantial compliance with the then existing national 55 mph speed limit.

The reports reflected speeds inconsistent with common knowledge of driving speeds on the Turnpike as well as the experience of the state's expert and experienced troopers. Dr. Cupingood himself did not believe that only 24.3 per cent of cars exceeded 60 miles per hour or that only 5.4 per cent of cars exceeded 65 miles per hour on the Turnpike as reflected in yet another report.(42) (55T 90-1 to 55T 90-4) Trooper Baumann estimated that 90 per cent of drivers on the northern end of the Turnpike, where traffic is more congested and, inferentially, travels more slowly and safely, violate Title 39 (23T 90-1 to 23T 90-12)

The State did not provide the DOT speed reports in discovery or indicate a desire to use them until well into the hearing. Neither did it provide any report or summary of Dr. Cupingood's opinion that such data would aid him in forming his opinions and testimony.

The DOT reports had played no role in the state's preparation of the case, its strategy, or its intended expert testimony. It had not questioned Mr. Last, who had conducted the violator study, finding that 98 per cent of drivers exceeded 60 miles per hour, why his results differed from the reports. Neither had it questioned the defense experts on how they could rely on these results when they differed so greatly from DOT reports. One could find from its failure to utilize the DOT reports at that key juncture of the hearing, that the State did not consider the reports to have any relevance to the matter or any utility even for cross examination. The State first mentioned the DOT reports when the it realized that the evidence was going to establish that racial discrimination had occurred on the Turnpike, and its representatives were desperate to find some new means to obfuscate the issues.

It would have been clearly improper for the Court to further extend the length of the hearing significantly by having a full hearing on the reports. Had the State offered the studies in a timely fashion, both sides could have been prepared with experts to address the issues raised by the studies expeditiously. This would have been no pro forma or perfunctory preparation, but a review of the reports' source data and data analysis, an exploration of the error built into the devices that measured vehicle speed by electro mechanical means from under the highway(43) and a thorough exploration of what was occurring on the Turnpike in the immediate vicinity of the speed monitoring station, including the existence of construction, police enforcement activities, deployment of radar units, which would set off radar detection devices and would slow down traffic, and the like.(44) In a hearing already drastically extended by the tendency of the State's key witnesses to avoid answering questions on cross examination, the Court would have abused its discretion on time and discovery grounds alone, had it allowed the State to proceed with the DOT studies. This is particularly so in light of the little evidentiary relevance they would pose, even if competent.

In denying admission of the DOT reports, the Court invited the State to take an interlocutory appeal to resolve the issue then if the state seriously questioned his ruling. (54T 124-7 to 54T 124-18) The State declined this invitation and now asks this Court to set aside six months of hearings because of its inaction.







CONCLUSION



To this day the State Police attempts to justify its actions and record on a racially biased theme-- on the Jim Crow notion that at least on the Turnpike blacks are inferior, that they drive worse, and that they therefore attract disproportionate police attention. According to the State Police this Court should believe that blacks drive worse because they are stopped more. This "logic" is circuitous and morally repugnant. Yet it is the essence of the State's case. Without a shred of evidence it seeks to blame en masse the victims of a State Police scheme to target blacks for stop on the Turnpike.

Refusing to acknowledge the proven and morally reasonable conclusions, the State Police would rather return to a time when such repugnant assumptions were accepted as justification for discriminatory police action. Ironically The State Police position exemplifies what the defense sought to prove and did prove. Stripped of its conjecture and flawed studies the State Police retreat to nothing more than a Jim Crow analysis. So late in this century of progress the State's retreat to stereotype proves the defense point: that this is an organization whose culture and values have allowed abuses of power to thrive. It is troubling that the State Police possess the arrogance to ask a court to adopt this throwback to a racist legacy. "Something strong and social" clearly exists within a State Police culture which allowed and condoned such repugnant policies to survive and flourish.

Respectfully submitted,



_______________________________

William H. Buckman

Attorney for DaCosta, Lockhart

and Monroe





________________________________

Justin Loughry

Attorney for Jackson



1. 1 "Pa" refers to the State's appendix. "Da" refers to the appendix of defendants herein.

2. 2 Defendants join in the indexing of transcripts adopted by the State. (Pb xii to Pb xiv)

3. 3 Even at the close of testimony in May of 1995 the mainstay of the State's case and the theme of New Jersey State Police witnesses was to merely deny, without substantive evidence, the policies that had profound racial impact. In its present brief the State seeks to credit these bare denials and the "net opinion" of its one poorly qualified expert. Because of these tactics it is important to note that since no one in authority in New Jersey has sought to right the wrongs proven below, the practices may yet continue.

4. 4 The defense's expert witness James Fyfe, Ph.D., testified similarly based upon his experience as a police officer and as an expert in Criminal justice. The defense's study of those who violated the traffic laws on the turnpike, "the pool of persons from which State Troopers must select violators," State v. Kennedy, 247 N.J. Super 21, 33(1991) further established that the percentage of black violators was functionally the same as their percentage of the motoring public.

5. 5 The significance of this aspect of the case is central. State Police policies and training moved troopers to stop blacks in grossly disproportionate numbers. The great majority of these persons were never even cited for a traffic violation which allowed the State Police to make review of these stops difficult. (Pa 6; 62T 94-11 to 62T 94-16)

6. 6 The Drug Intervention Training Unit preserved few materials or records despite regulations requiring it to do so. (Da 73) This was a training record that survived.

7. 7. For the region south of Exit 3 the evidence is unrefuted that over sixty percent of the stops of blacks did not result in the issuance of a ticket. (Pa 6)

8. 8 That of course is why the state demands that this Court look at one tree at a time and pretend there is no forest.

9. 9 Because of State Police document retention policy, radio logs existed for only twenty five of the thirty five randomly selected days. The State Police destroyed the radio logs for 1988 although the Patrol Logs for that period were not destroyed.

10. 10 At page 9 of its brief the State inaccurately alleges that Dr. Lamberth is "not a statistician." He was qualified as an expert in statistics as well as social psychology. The State did not contest his qualifications in either area.

11. 11 At page 5 of its brief the State mistakenly asserts that the only surveyed violation was speeding.

12. 12 While proportionally the stops of blacks south of Exit 3 is much higher, the standard deviations are somewhat lower because the sample size is smaller.

13. 13. Dr. Lamberth also found from review of all arrest reports from a period of three and on half years that 73.2% of the arrests made by the Moorestown Barracks were of blacks. This constituted a 59.7% absolute disparity, a 442% comparative disparity, and constituted 54.27 standard deviations. Dr. Lamberth testified that all things being equal, such a result would occur by chance less than one in a billion times. (5T 101-9 to 20; 5T 102-7 to 15; 5T 104-8 to 13; 5T 105-18 to 21)

14. 14 There is no evidence before the Court that the race of black motorists was recorded more than non-blacks. Neither was there any basis in the record to draw such an inference. There was ample evidence that troopers making profile stops tried to avoid a paper trail of their activities; If anything black stops were most likely under recorded.

15. 15 South of Exit 3, the Patrol Unit issued 43.8% of its tickets to blacks. (13T 30-3 to 13 T 30-19) Testimony would later reveal that the DITU was particularly active on the extreme southern end of the Turnpike near the Delaware Memorial Bridge.

16. 16 In its brief, the state now concedes that Dr. Cupingood is merely an adjunct at Villanova, although no attempt was ever made below to change Cupingood's vita to reflect the more accurate status. (Pb 8)

17. 17 The defense did locate some of those works, only to find that Cupingood neglected to mention in his resume the co-author status of certain colleagues.

18. 18 If consideration is limited to stops south of Exit 3, these percentages increase to 69% and 80%, respectively, suggesting a heightened focus on young black males in this area. (63T 140-24 to 63T 143-19)

19. 19 On cross examination, Dr. Cupingood calculated the standard deviations for the winnowed data in court. (52T 66-24 to 52T 68-6; 52T 77-16 to 52T 78-8) He produced two different results, one in excess of two standard deviations, (52T 77-16 to 52T 78-8), and one slightly less (52T 66-16 to 52T 68-6), the difference being the use of a "continuity factor," which reduced the final calculation. He conceded that the continuity factor was not necessary in his calculations. (52T 77-12 to 52T 77-18) Without the continuity factor even Cupingood's winnowed study showed statistically significant differences in the rates of ticketing blacks among the units as trooper discretion increased.

20. 20 Dr. Cupingood's concessions included: the experiment might not have been practical; the inability to account for differing conditions in traffic, differing time periods; the need to expose many troopers to the experiment; the need to have different cars and drivers so that they would not be recognized by the troopers; the need to have as many factors present, including the genders of the drivers; the need to be able to account for the civil and penal liability of the drivers; the substantial risk to public safety posed by the drivers. (48T 72-1 to 48T 78-12; 48T 82-14 to 48T 85-9)

21. 21 At page 32 of its brief the State asserts that "[t]here was only one minor reference to New Jersey in the entire film." However the reference is at the beginning of the film where it noted that the "techniques" set out in the film were developed, partially, by the New Jersey State Police. It is uncontroverted as well that the State Police used the film extensively to train within New Jersey. 28T 64-1 to 28T 64-6.

22. 22 It is important to note that the State in its appendix has provided this Court with none of the pivotal documents placed in evidence by either side. P-14(Da 58) was a State evidentiary exhibit. The attitude of the State here seems to run counter to the direction of R.2:6-1(a)(8) which requires an appendix to include "such other parts of the record, as are essential to the proper consideration of the issues, including such parts as the appellant should reasonably assume will be relied upon by the respondent in meeting the issues raised."

23. 23 Colonel Pagano's taped message to the troops,(P 69A), stated that this was the state police's highest priority several times. The defense submits that Caffrey could not have been unaware of this.

24. 24 The Pagano Report(Da 47) conceded this figure for the Turnpike.

25. 25 Nevertheless, true prosecutorial discretion is not at issue in the instant matter as the officer on the beat has never been granted such deference. See pages 149-50, infra. The instant matter involves the actions of a particular police department, albeit one with statewide jurisdiction.

26. 26 It is also ironic that in various portions of its brief the State seeks to charge in inflammatory language the defense and the court below with "plung[ing] all participants in the state's criminal justice system, in both the judicial and executive branches, into a quagmire of expensive and time-consuming litigation...." (Pb 2) It alleges in "defendants' challenge has greatly delayed their prosecution." (Pb 38) Yet the transcript of January 11th, 1995 amply illustrates how inappropriate these allegations are. The State did not even allege below that the defense had failed to make it's case at the moment when--if the State was truly of the mind that a case had not been made. From a review of the state's "index of transcripts (Pb xii) it is readily apparent that the defense case, including cross-examination by the State lasted only 18 trial days. Even this period was lengthened because of the State's refusal to abide by court rulings requiring discovery. Numerous, lengthy colloquies and reapplications were required in order to force the State to comply with discovery obligations. The bulk of the remainder of this case--approximately 54 trial days--came from the State's presentation which the court below appropriately determined to be not credible.

27. 27 The defendants never sought to prove-- and need not prove-- that it was the policy to stop only blacks to the exclusion of all others. Rather, the proposition and the proof is that the State Police target blacks-- e.g. they factor in the race of driver and occupant-- with statistically significant frequency in deciding whom to stop.

28. 28 For the entire area (exits 1 to 7A) the absolute disparity was 22.1%, the comparative disparity 164% and the standard deviations were 22.1.

29. 29 It should be noted that the standard set forth for prima facie cases of intentional discrimination under the Fourteenth Amendment do not require proof of a virtual mathematical certainty (although the state would attempt this court to so rule). See Castaneda, supra; Bazemore v. Friday, 478 U.S. 385, 106 S.Ct. 3000 (1986).

30. 30 Please note that the Marshall court observed that "if a result is 'more than two or three standard deviations from the expected,' a statistician assumes it is suspect." at pages 211-212(quoting Ramseur at 106 N. J. 123, 221 (1987).).

31. 31 Indeed, at one point during cross examination in the instant matter Dr. Cupingood tacitly conceded his possible misleading of the trial court. (52T 110-18 to 52T 111-16)

32. 32 It is ironic that the State has attempted to denigrate the result below by lamenting the length of time it took to try. As noted above the defense case absorbed approximately eighteen days. In its case the State's presentation of Dr. Cupingood took up a major portion of the time in this matter. It shows temerity, at the least, for the State to raise an alarm about the length of time this matter took when a significant portion of the case was consumed with the conjecture and net opinions of Dr. Cupingood. Dr. Cupingood would further concede one other reason why his cross examination was necessarily lengthy. He noted that he had not told the court in Warren County about the "weaknesses" of his "Mantel-Haentzel analysis because no one had asked him. Not only did this expert witness not have the mindset to assist the court below, he was willing to withhold key information in the absence of thorough cross-examination; thus the cross examination in this case was lengthy by necessity, in order to expose Cupingood's ill-founded assumptions, arbitrarily constructed studies and lack of awareness of the facts of record.

33. 33 These two quotes are telling concessions by the State. Their sum total is that the State Police may have been aware of abuses of power and that the State Police failed to respond to a "troubling" situation. Indeed Colonel Pagano would ultimately concede, musing out loud, that perhaps profiling may have existed. (71T 156-24 to 71T 158-1)

34. 34 It is interesting to note that the State complains in its brief that Judge Francis at first was skeptical about the defense position with respect to Operation Pipeline then found it to corroborate the profiling atmosphere. This example more aptly shows the workings and discipline of a Judge with an open mind to the State, holding the moving party to its burdens. This scene shows how the State started in fact with something akin to a presumption in its favor. The State also neglects to note that is was after defense expert Dr. James Fyfe linked the training film to a breach of good training standards that the Court properly reconsidered its view.

35. 35 The State goes beyond the record or admissible evidence to attempt to convince this Court that Colonel Pagano had a right to denigrate Paul McLemore, Esq. It is troubling that even at this date the State attempts to echo the dubious, unprofessional and self justifying cant of the former Colonel.

36. 36 One such order would have required the State to announce its intention to use DOT (see State's brief PointIV) studies before the middle of trial when the State first proffered these documents, triggering hours of argument and consuming additional time. Now it complains that it couldn't use those irrelevant documents nevertheless.

37. 37 Analogously, some courts have suggested that if an employer repeatedly gives a test that is known to have substantial adverse impact, and no concern is expressed that it be validated, the trier of fact can infer that the test was maintained as a means of intentional discrimination. Dixon v. Amrgolis, 765 F. Supp. 454 (N.D. Ill l99l), cited in Spriggs, Representing Plaintiffs in Title VII Actions, Vol I, p 27 (l994).

38. 38 This result was presaged by State v. Pierce, supra.

39. 39 While Alston still requires the allegation of a possessory interest, it is impossible to hypothesize a party whose rights would be violated who would not have some possessory interest. The standing is, therefore, universal. The Alston Court recognized that some search and seizure violations would go unpunished under federal law governing standing. It therefore, expanded the standing requirements to allow all aggrieved parties to seek redress.

40. 40 The State seeks individualized suppression hearings for "screening" purposes and provides a police report, not of record, that one defendant, Soto is white. This is both violative of the rule that a party may only argue facts of record but it is also untrue and disingenuous. In every document heretofore filed and in every argument heretofore made all parties have agreed that all defendants are black. The State may not raise this issue for the first time on appeal reversing its prior position for the purpose of obtaining individualized hearings. Had the State made this ingenuine allegation on or before November 28, 1994, the start of the plenary hearing the issue could have been met simply by allowing Mr. Soto to be viewed by the Court. Mr. Soto was present on that date and clearly the State had no reason to object to his membership in the motion class.

41. 41 Below, the State eschewed individualized consideration of those troopers involved in the actual stops here in question--in essence objecting to individualized consideration at the moment when such individual proofs could have best been handled.(5T 120-10 to 5T 150-3) It took this position more than once during the hearing in this matter.(22T 93-10 to 22T 93-25) Clearly it recognized the numerous ways in which such individualized concerns are inappropriate. Its attempt to now reopen this issue and assign error to the trial Judge is factually misplaced.

42. 42 Dr. Cupingood did not explain how a statistician could properly utilize data that he believed to be inaccurate.

43. 43 The Office of the Public Defender's brief assumes that this was accomplished through some automated radar device, which is not the case. The state provided the defense in discovery after issue was joined on use of the reports with the technical specifications of the equipment used. It was to be evaluated by defense experts if the reports were to be admitted.

44. 44 The State's delay in advising of its intention to proffer the reports would have deprived the defense of access to state police radio logs and patrol activity reports for the days in question, because of the state's record destruction policy.


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