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

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SUPERIOR COURT OF NEW JERSEY

Appellate Division ____________________________

: DOCKET No. A-2256 - 99T3

STATE OF NEW JERSEY, :

Plaintiff- Appellant, :

:

V. : Criminal Action

: On Leave To Appeal An Interlocutory

Ramona Maiolino et al, : Order Of The Superior Court Of Defendant-Respondents. : New Jersey, Law Division,

: Hunterdon County.

________________________ :

Sat Below:

Hon. Edmund Bernhard, J.S.C.

Attorney for Ramona Maiolino

714 E. Main St., Suite 1B

Moorestown, New Jersey 08057

(856) 608 - 9797

Of Counsel and On The Brief

Defendant Is Not Confined

Table of Citations ii

Table of Contents to Defendant's Appendix iv

Statement of Procedural History 1

Statement of Facts 4

Legal Argument 9

Point I: THE EVIDENCE BELOW ESTABLISHED A COLORABLE BASIS TO BELIEVE THAT RACIALLY SELECTIVE LAW ENFORCEMENT WAS PRESENT.

ACCORDINGLY, THE ORDER FOR DISCOVERY WAS APPROPRIATE. ..9

A. Introduction 9

B. The Law Concerning Racially Selective Traffic Law

Enforcement 16

C. The trial Court Had Before It a Woman of Obvious

Hispanic Origin or Appearance. 24

1. Race Has Been Conclusively Proven To Be

Visible At Night 25

2. The Record Overwhelmingly Established Ms. Maiolino As A Hispanic Claimant 29

3. The Absurd Notion That Hispanics Are Not A

Cognizable Group 33

4. The State Suggestion That Courts Establish

Rules of Lineage To Determine Pure Versus Less

Than Pure Racial Attributes Is An Invitation

To Return To A Discriminatory Past 38

D. Defendants Ward and Ancrum Established

Their Right To Discovery 41

Point II: THE ORDER FOR PRODUCTION OF DOCUMENTS WAS

APPROPRIATE. THE ATTEMPT TO LITIGATE THIS ISSUE BEFORE THIS

COURT IS PREMATURE AT BEST. 43

A. The Issue is Premature 43

B. Subsequent Remedial Conduct is Discoverable And Highly Relevant In This Matter 44

CONCLUSION 54

Alamo Rent A Car v. Galarza, 306 N.J. Super. 384 (1997) 35

Barnes v. Yellow Freight Systems, Inc., 778 F. 2d 1096, 1101 (5th Cir. 1985) 28

Bennun v. Rutgers University, 941 F.2d 154, 173

(3rd Cir. 1991) 30, 35, 39, 40

Brady v. Maryland, 373 U.S. 83 (1963) 43, 45

Brown v. Brown, 86 N.J. 565 (1981) 52

Castaneda v. Partida, 430 U.S. 460, 495-501, 97 S.Ct. 1272,1280- 83 (1977) 22

Connally v. Burger King Corp., 306 N.J. Super. 344

(App. Div. 1997) 36

Dennis v. City of Newark, 307 N.J. Super. 304, 314-316 (App. Div. 1998) 52, 53

Hernandez v. Region Nine Housing Corp. 146 N.J. 645, 659,

884 A. 2d 1385 (1996) 27, 35

Hunter v. Underwood,471 U.S. 222, 229-231 (1985) 6, 19, 20

Kyles v. Whitely, 514 U.S. 419 (1995) 43

McClesky v. Kemp, 481 U.S. 279 (1987) 23

Manieri v. Volkswagenwerk 151, N.J. Super 422, 431-435 (App. Div. 1977) 51

Millman v. U.S. Mortgage and Title Guarantee Company,

121 N.J.L. 28 (Sup.Ct.1938) 51

Monnell v. Department of Social Services of City of New York, 436 U.S. 658, 691 (1978) 49

Payton v. New Jersey Turnpike Auth., 148 N.J. 524, 535

(1997) 45, 46

Perry v. Levy, 87 N.J.L. 670, 672 (E.&.A. 1915) 51

Pete Nicacio, et al v. U.S. Immigration and Naturalization Service, et al 797 F. 2d 700, 708,15 (9th Cir. 1985) 30

Reed v. Monmouth Oil Company, 42 N.J. Super 355, 362 (App. Div. 1956) 51

Ryan v. Port of New York Authority, 116 N.J. Super 211 (App. Div. 1971) 52

Rova Farms Resort v. Investors Ins. Co., 65 N.J. 474, 483-84 (1974) 40

Saint Francis College, et al. v. Al-Khazraji, 481 U.S. 604, 611-613, 107 S. Ct. 2022 (1987) 35

Segar v. Smith, 738 F. 2d 1249, 1278 -79 (D.C. Cir. 1984) 28

Snyder v. American Association of Blood Banks, 282 N.J. Super 23, 46 (App. Div. 1995), 144 N.J. 296 (1996) 52

State v. Johnson, 42 N.J. 146, 161-162 (1964) 41

State v. Jones, 104 N.J. Super. 57 (App. Div. 1969) cert. den. 53 N.J. 354 (1969) 28

State v. Kennedy, 247 N.J. Super. 27 (App. Div. 1991) passim

State v. Lund, 119 N.J. 35, 47 - 48 (1990) 31

State v. Marshall, 130 N.J. 109, 613 A.2d 1059, 1109 (1992) 23

State v. Soto, 324 N.J. Super. 66 (L.Div. 1996), appeal withdrawn April 20, 1999 under Docket Number A-5334-95T3. passim

State v. Staples, 263 N.J. Super. 602 (App. Div. 1993) 28

State v. Zapata, 297 N.J. Super. 160, 165-166 ( App. Div. 1997) 35

Thompson v. City of Los Angeles, 885 F2nd 1439

(9th Cir. 1989) 49

U.S. v. Armstrong, 517 U.S. 456, 465 (1996) passim

U.S. v. Bell, 86 F3d 820, 823 (8th Cir.1996) 22

United States v. Berrios, 501 F.2d 1207, 1211 (CA2 1974) 18

Walles v. Walles, 295 N.J. Super. 498, 513 (App. Div. 1996) 40

Wards Cove Packing Company v. Atonio, 490 U.S. 642, 109 S.Ct. 2115 (1989) 22

Weiss v. New Jersey Transit, 245 N.J. Super. 265, 269

(App. Div. 1991) rev'd. on other grounds, 121 N.J. 376 (1992) 52

Wilson v. Chicago, 707 F. Supp. 376 (N. D.111. 1989) 49

Yick Wo v. Hopkins, 118 U.S. 356, 373-374, 6 S. Ct. 1064

(1886) 10, 13

STATUTES:

Federal:

42 U.S.C. § 1981 35

State:

N.J.S.A. 10:5-1 34

RULES & REGULATIONS:

N.J.A.C. 19:53-1.2 35

Exhibit Below/ Evidence of NJSP Training "Hispanics Mainly Involved." DA 2

Additional Certification of Richard Rivera In Support of

Colorable Basis DA 4

Additional Certification of Dr. Lamberth in Support of

Colorable Basis DA 7

Certification of Investigator Kerry Tucker in Support

of Colorable Basis DA 10

Certification of Richard Rivera in Support of Colorable

Basis DA 16

Certification of Dr. Lamberth in Support of Colorable

Basis DA 21

Certification of Kerry Tucker in support of Colorable

Basis DA 36

Defense Supplemental Letter Briefs In Support of Motion DA 40

Defense Letter of October 25, 1999 responding to State's

letter of October of October 20, 1999 DA 54

Local Prosecutor Letter of 9/10/99 DA 60

Local Prosecutor Letter of 9/23/99 DA 61

A.G. Letter of 9/23/99 DA 62

Local Prosecutor Letter of November 30, 1999 DA 64

Local Prosecutor Letter of 12/1/99 DA 65

Defense Letter of November 15, 1999 responding to State's

Letters to Court DA 66

Defense Letter of 8/17/99 seeking to confer over discovery. DA 69

Consent Decree between United States and New Jersey State Police DA 70

Certification of Richard Rivera on missing racial identifiers DA 87

Order setting time limits for discovery DA 89

Order for Discovery (additional order) DA 91

Certification of Carol Skarpetkowski, Esq with Exhibits DA 93

Transcript of Judge Lisa's ruling in State v. Rodriquez

(now Brewster) DA 137

Initial Complaint DA 154

Indictment DA 155

Memo to Major Fedorka From Head of IAB DA 156

STATEMENT OF PROCEDURAL HISTORY

Ms. Maiolino was stopped and arrested on Interstate 78 in Hunterdon County in October of 1998 and was indicted in January of 1999. On July 2, 1999, Ms. Maiolino filed a motion challenging her stop as the product of racially motivated law enforcement by the New Jersey State Police on Interstate 78. (PA 54) Her motion requested extensive discovery pursuant to State v. Kennedy, 247 N.J. Super. 27 (App. Div. 1991) and included a strong showing evidentiary showing in support of her claim of racially selective law enforcement. (DA 2-39)⁽¹⁾ Ms. Maiolino also requested permission to join in and/or consolidate the similar and near simultaneous motion of defendants/ co-respondents Ward and Ancrum.(PA 54-55, 73)⁽²⁾

On August 13, 1999, the Superior Court of New Jersey, Law Division-Hunterdon County, the Honorable Edmund Bernhard, J.S.C. presiding, determined that Ms. Maiolino had established a colorable basis to believe that her stop was the product of racially selective law enforcement and was thus entitled to appropriate discovery. The court also found that Ward and Ancrum's proofs combined with Maiolino's proofs established a colorable basis to believe that African Americans have likewise been the subject to racially selective law enforcement. However, prior to that date the State requested and obtained a continuance to make additional factual showings. Certification of Skarpetkowski at paragraphs 10-11(DA 95). Judge Bernhard also consolidated, at the request of defendants Ward and Ancrum, their motions for discovery challenging their stops as the product of racially law enforcement. Id. at paragraphs 1-29. (DA 93-98) The court further directed on August 13, 1999 that the State and defense attorneys confer to agree on appropriate discovery. (T59.19 to 60.11)⁽³⁾ However, the State avoided a conference on the issue of discovery. (DA 69; T2-6.8 to 8.21) Accordingly, on September 24, 1999 the court ordered discovery in this matter and signed an Order embodying its findings on October 8, 1999. (PA 1)

Subsequent to September 24, 1999 an Order for Discovery embodied on October 8, 1999 (PA 1 to 8) the State did not appeal or seek reconsideration. Instead it sent letters deemed by the court self serving and inappropriate procedurally and in content. Compare PA 9 to DA 54; 3T15-25 to 16-7. Only through the State's letter of October 20, 1999 did the Attorney General belatedly indicate an interest in joining the advanced proceedings. PA 9. Prior to that date, the Attorney General and the local Prosecutor had decided that the Prosecutor's Office would handle all aspects of the case, including the racially selective law enforcement claims. DA 95; T32-5 et seq; 2T8-24 to 9-12.

Subsequent to the October 8, 1999 Order for Discovery the trial court set forth specific time parameters for the state's provision of discovery and instructed the State that failing reconsideration or an appeal, the State must comply with the Order. See 3T5-13 to 6-6; 3T7-16-8-23;3T10-14 to11-17; 3T16-15 to16-17;3T19-2to19-18. Hence, the State is mistaken to allege in its Brief that "[t]he Order did not set forth a date for commencement of discovery." Sb-2. There was a lengthy colloquy on timing of discovery between the court and the State. Id. At a status conference on November 19, 1999 the State provided a small amount of discovery and the court directed that the state provide the remainder by December 16, 1999.

The State filed an unnoticed application for an emergent appeal on November 15, 1999 (PA 26), but apparently withdrew same when it was directed to perfect that appeal by November 16, 1999. The State then moved for leave to file an interlocutory appeal on November 29, 1999, almost two months after the colorable basis and discovery orders which are the heart of this matter. In the meantime, the State some provided some additional discovery material on December 17, 1999.

STATEMENT OF FACTS

Romana Maiolino is a woman of obvious Hispanic appearance and name. She was traveling alone on I-78 in Hunterdon County on October 16, 1998 when she was stopped by the State Police. Once stopped she was subjected to questioning and a full automobile search. As will be discussed below, her stop had all of the hallmarks of a "profile" stop.

The defendants in these consolidated matters all filed or joined motions charging their stops as the product of racially selective law enforcement by the New Jersey State Police i.e. "profiling." PA 54- 73 All motions were supported by extensive factual showings otherwise known as "colorable basis" showings. DA 2-39; DA 93 (Certification of Skarpetkowski and exhibits thereto); DA 127. Indeed, in the Romana Maiolino matter her showing indicated that Hispanics are 7.2 times more likely to be stopped on I-78 in Hunterdon County than Caucasians. (DA 23-24), This figure is almost twice that of the "stark" statistics found by the court in State v. Soto, 324 N.J. Super. 66 (Law Div. 1996), appeal withdrawn April 20, 1999 under Docket Number A-5334-95T3 and the figures admitted by the State in the Interim Report of the State Police Review Team Regarding Allegations of Racial Profiling (hereafter "Interim Report").

However, the specific showing of racially selective law enforcement Ms. Maiolino demonstrated in her application must be viewed along with the overwhelming and uncontradicted evidence of racially selective law enforcement practiced by the State Police. For well over a decade, the New Jersey State Police have engaged in racial profiling on the highways of New Jersey. While credible reports of the invidious practice began to surface, the State Police and the Attorney General's office chose to ignore or criticize those allegations through bureaucratic stonewalling and obfuscation. Nevertheless, after a lengthy hearing in the Superior Court of New Jersey-Gloucester County, Judge Francis found the practice to be real-at least with respect to the southern end of the New Jersey Turnpike. In State v. Soto, supra, Judge Francis also found additional facts which later history and events validated, namely that the mechanics, culture and scheme of profiling were aided, tolerated and condoned by the hierarchy of the New Jersey State Police.

The utter failure of the State Police hierarchy to monitor and control a crackdown program like DITU [Drug Interdiction Training Unit] or investigate the many claims of institutional discrimination manifests its indifference if not acceptance. Against all this, the State submits only denials and the conjecture and flawed studies of Dr. Cupingood. Id. at 85.

Moreover, Judge Francis found that the training and culture of profiling was agency-wide and did not apply only to stops on the New Jersey Turnpike. Id. at 81-83, 85 ; Also see Da 2-3 (NJSP training outline in evidence in Soto as Exhibit P-14 declaring with respect to illegal drugs "Hispanics mainly involved.")

After numerous unfortunate events, including the shooting of three innocent men on the Turnpike, the Attorney General of New Jersey finally investigated the problem of racial profiling and conceded its existence in the Interim Report. That report, while ostensibly conceding the invidious practice on the Turnpike, made sweeping concessions that, like Soto before it, showed the culture, training and practices of profiling to be more probable than not and an agency-wide institution. Da 2-3; Soto, supra; Interim Report at 5, 8-9, 11, 24-25. 37-44.

The expose' of profiling accomplished in Soto as well as the admissions of the Interim Report establish that profiling is more than the agency's mere stated desire to enforce traffic and other laws unequally against minorities. Interim Report at page 5. Profiling was part and parcel of a bundle of State Police practices, de facto polices and procedures, training and culture that enabled selective law enforcement to endure. For example, despite a State Police Standing Operating Procedure which required all officers to "call in" their stops, including the race of the persons stopped, an extremely high number of profile stops were not called in unless an arrest was made so as to allow for no paper trail of profiling. Interim Report at 25, 31; Soto, supra at 72. Even when stops were called in they rarely contained the required racial identifiers. Id. Often police would position their cars perpendicular to the highway, a position that allowed for easy view of the auto's occupants but useless for radar. Interim Report at 24-25. Motorists who did complain of inappropriate stops and searches had their complaints fall on the ears of a biased Internal Investigation system seemingly designed to uphold the Trooper's word over the motorist. Soto, supra at 82; DA 77-86 (Consent Order Between the Justice Department and The NJSP); Interim Report at108. Most notably, the "Consent Decree" which the State Police were recently required to sign with the Civil Rights Division of the U.S. Department of Justice requires an overhaul of the Internal Affairs process because of its previous institutional bias. Training stressed minority status as suspectness. Soto, supra at 79-80; DA 2-3 (NJSP training handout introduced in Soto as P-14 indicating "Hispanics Mainly Involved."); Interim Report at 38-42 Awards systems within the State Police rewarded profilers. Id.

The evidence presented to the court below on behalf of Ms. Maiolino showed that the circumstances of her stop had many of the hallmarks of a profile stop. Officers were apparently parked perpendicular to the highway before the stop.⁽⁴⁾ DA 4-6; Interim Report at 24-25. They supposedly extracted a "consent" from her to search beyond the passenger compartment even though they alleged facts supporting only a disorderly arrest. Interim Report at 5; 30; 38-42. Moreover, in an apparent attempt to increase the significance of their arrest, the officers in this matter swore to a Complaint alleging a first degree seizure of more than 25 pounds of marijuana when in reality discovery alleges the seizure was much less, comprising only approximately one fifth of that amount, or a third degree or marginally second degree offense. Compare DA 154 (Initial Complaint) to DA 155 (Indictment); Interim Report at 10, 39, 42-44.

Moreover, profiling is not new to the region affected by this litigation. See State v. Kennedy, 247 NJ Super 21 (App. Div.1991). Accordingly, Judge Bernhard had before him a statistical showing stronger than the "stark" statistics that compelled Judge Francis to rule as he did along with corroborating circumstantial evidence. (DA 21 -26, Certification of Dr. Lamberth indicating Hispanics may be 7.2 times more likely to be stopped on I-78.) The State never contested this "stark" evidence of the State Police, i.e. agency policies on I-78 and now appears to concede their accuracy, at least for the moment. Discovery received to date also indicates that other evidence of profiling comparable to Soto. Years beyond the time which the Interim Report claimed that the State Police had corrected the problem of race misidentification, the practice flourished on I-78. Compare Interim Report at 25, 31 with DA 87-88.

A. Introduction.

Racial profiling challenges, claims that government has engaged in racially selective law enforcement, are directed to the policies of an agency and not individuals. Almost nine years ago this Court explained :

[H]aving its roots in the equal protection and due process clauses, the claim of selective prosecution is somewhat foreign to 4th Amendment interests and analysis. We thus recognize that the "4th Amendment prescribes unreasonable actions, not improper thoughts" and that the subjective motives of the arresting or searching police officer are generally beyond the appropriate bounds of judicial inquiry.

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 and arrest. 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.

State v. Kennedy, 247 N.J. Super. 21, 30 (App. Div. 1991) (citations omitted).

Kennedy was on solid ground reclaiming constitutional lessons long established:

Though the law itself be fair on its face, and impartial in appearance, yet, if it is applied and administered by public authority with an evil eye and an unequal *374 hand, so as practically to make unjust and illegal discriminations between persons in similar circumstances, material to their rights, the denial of equal justice is still within the prohibition of the constitution. Yick Wo v. Hopkins, 118 U.S. 356, 373-374, 6 S. Ct. 1064 (1886).

Racial profiling is a real and serious problem in this state which went on unredressed and unabated for years. Interim Report, supra; Soto, supra. Yet the issues in this case as framed by the State would seriously impact on the ability of citizens to challenge race-based law enforcement. Through this appeal the State seeks to curtail legal challenges by placing entirely new and heavy, perhaps impossible, burdens on claimants to first prove: 1) that their specific stop was motivated by racial animus; and 2) and that they meet a state-sanctioned definition of inclusion in a racial or ethnic group.

Common sense and precedent dictate that the central focus of any profile challenge must remain an examination of invidious government policies. The burden must remain on the government to prove absolutely no discretion was involved in the decision to stop, question or detain in the highway stop context. Lastly, society and claimants alike should not be demeaned by a return to a time when rules of lineage determined one's rights. Instead, whether a claimant appears to be a group member through physical, voice, name or other relevant characteristics is the only reasonable inquiry, particularly in any initial "colorable basis" stage. Any other approach will work to throw courts back to a time when race discrimination was accepted practice, not anathema.

Applying these principles, Judge Lisa, in a pending Gloucester County profile challenge, now known as State v. Brewster, et. al. (previously known as State v. Rodriguez, et als.), succinctly summarized the appropriate legal analysis in the face of a State attempt to thwart challenges by forcing claimant's to first prove their case in a hybrid Fourth Amendment or individualized context.

In determining whether or not any of these cases meet the standard which I have determined to be applicable, it is helpful to reiterate some underlying principals that are essential to a determination of the issues before me in this selective enforcement defense.

First, these do not involve individual actions of individual troopers in individual cases. That is not the essence of this defense. The objective reasonableness, or for that matter, the subjective reasonableness or unreasonableness of the actions of an officer in a particular case is irrelevant to the defense of selective enforcement.

Under State v. Kennedy, the issue is whether the law enforcement agency, in this case, the State Police, engaged in a de jure or de facto policy of selective enforcement.

Secondly, I have determined that based upon the interim report alone, as bolstered by other information and evidence submitted by the defendants, that the defendants in these consolidated matters have established a colorable basis that selective enforcement, in the nature of racial profiling, was at least a de facto policy of the New Jersey State Police in patrolling the New Jersey Turnpike on or before the date of the interim report, namely April 20, 1999.

Next, it is important to recall what the State itself in the interim report defines as racial profiling. And I quote from the report, "We choose to define racial profiling broadly to encompass any action taken by a State Trooper during a traffic stop that is based upon racial or ethnic stereotypes and that has the effect of treating minority motorists differently than non-minority motorists. We have thus elected not to limit our review of a trooper's initial decision to order a vehicle to pull over. Rather, we also consider a host of other actions that may be taken by State Police members throughout the course of a traffic stop; such as, ordering the driver or passengers to step out, subjecting the occupants to questions that are not directly related to the motor vehicle violation that gave rise to the stop, summoning a drug detection canine to the scene, or requesting permission to conduct a consent search of the vehicle and its contents."

I am satisfied that none of the seven cases asserted by the State, even accepting their factual contentions as being unrebuted, demonstrate a clear failure to exhibit a potential effect of the asserted discriminatory practice by the New Jersey State Police of racial profiling on the New Jersey Turnpike upon those defendants' cases.

The scope of activities engaged in by the troopers in each of these cases, either in making the initial stop, or in extending the length, scope, and nature of the investigation, were discretionary and do not clearly eliminate the selective enforcement issue.

State v. Rodriguez, supra, Transcript of December 7, 1999 Hearing at pages 13-15, attached as DA 149-151(emphasis added).

Guided by Soto and Kennedy, as well as precedents as long and historically placed as Yick Wo, Judge Lisa properly identified the essential elements of the interrelationship between the stop and the forbidden agency policy. Where any trooper discretion is afoot, agency policy may be afoot as well. Most important is Judge Lisa's recognition that the burden was entirely on the State to demonstrate the total lack of discretion of the trooper in making the stop, such as the hypothetical of a radio broadcast of a felony fleeing a scene who happens to be of a minority or of a vehicle traveling down the highway with a ten or twenty foot marijuana plant protruding from one of its windows.⁽⁵⁾

Earlier, Judge Lisa had established the commonsense notion to be applied in class membership, namely appearance-- how one may be perceived by a profiler at the time of the stop or thereafter. PA - 38. Also see Interim Report at page 5. Judge Lisa's approach comports not only with case law but also with the State's own definition of profiling contained on page five of the Interim Report. Id.

Accordingly, as will be discussed in greater detail below, there is little relevance of the individual facts in racial profile challenges. Moreover, to the greatly limited extent that individual facts become relevant, it is entirely the State's burden, not only to raise those limited, individual facts, but to raise them in a way which must establish that absolutely no trooper discretion was involved --in instituting the stop or perceiving minority status. This limited examination must be confined to the singular issue of absolutely no discretion, not the stealth issue that the State attempts to disguise in this present application: It's mere desire and hope that the Court below should have uncritically accepted the self-serving version advanced by the State. At stake is a "colorable basis" or "'some evidence tending to show the existence of the essential elements of the defense,' discriminatory effect and discriminatory intent." U.S. v. Armstrong, 517 U.S. 456, 465 (1996) quoting United States v. Berrios, 501 F.2d 1207, 1211 (CA2 1974). The State seeks the "Catch 22" benefit of individual, plenary hearings before claimants have been provided with the discovery necessary to reveal the existence and scope of racially selective law enforcement.

Nevertheless, and despite the fact that the proofs presented below by the State were wholly insufficient to indicate that this profile stop was anything other than the normal type of discretionary stop with discretionary action taken after the stop, Judge Bernhard thoroughly considered the State's request to review the individualized facts of the stop. The present cry of the State that the Court below refused to consider the appropriate issues involved in the case - the existence or nonexistence of discretion as conceded in the State's own Interim Report definition, is wholly without merit. Instead, because the issues were appropriately considered by the court below, the real character of the State's present complaint is simply that the Court below did not side with the State's legally and factually insufficient or irrelevant arguments.

Lastly, the State seeks to stand existing selective law enforcement jurisprudence on its head, when it states, "Thus in order to have standing to bring a constitutional claim of selective prosecution, a defendant must make a credible showing that he or she was, in fact, personally the subject of discrimination...." Attempting to take the law full circle, the State asks this Court to destroy the progress made in eradicating the cancer of racially motivated law enforcement by placing claimants in a "Catch-22" position: First claimants, without discovery, would have to show that they were "in fact" personally the subject of discrimination. Thereafter, having shown such "in fact" personal discrimination, the State would magnanimously allow them to pursue a full-blown class-based challenge. The absurdity of this position is palpable. Rather, the present state of the law is clear and makes common sense. What is required is a colorable basis to show that an agency-wide policy of targeting minorities for selective law enforcement exists and that a claimant reasonably presents in appearance, custom, name or other indicia of origin as a member of the group. Any other scheme strips claimants of valuable 14^th Amendment rights and strips society as a whole of protection against race-based law enforcement.

Succinctly stated, individual facts have little application in a challenge to the racially selective law enforcement policies of an agency. As will be discussed in greater detail below, to the extent that individual facts are applicable it is the State's burden to prove 1) that no trooper discretion was involved and 2) that there was no objective basis for the court to find that the claimant was perceived as a member of a protected minority.

B. The Law Concerning Racially Selective Traffic Law Enforcement.

While selective prosecution claimants face significant evidentiary hurdles at different stages of their litigation, unlike the implication in the State's brief, their task is not and must not be an impossible one.⁽⁶⁾ Our courts recognize the need to weed out frivolous claims yet address the real -- not imagined -- problem of racially selective law enforcement. "The requirements for a selective-prosecution claim draw on 'ordinary equal protection standards.'" U.S. v. Armstrong, 517 U.S. 456, 465 (1996) quoting Wayte v. United States, 470 U.S. 598, 608 (1985).

Many different phrases have been used to express the showing necessary to obtain discovery such as "colorable basis," "substantial threshold showing," "substantial and concrete basis," or "reasonable likelihood." The Armstrong court treated these terms as similar, and employed a phrase which underscores the fact that properly constructed profile challenges are appropriate. "However, the many labels for this showing conceal the degree of consensus about the evidence necessary to meet it. The Courts of Appeals 'require some evidence tending to show the existence of the essential elements of the defense,' discriminatory effect and discriminatory intent." Id. at 465, citing United States v. Berrios, 501 F.2d 1207, 1211 (2nd Cir. 1974) (emphasis added). Also see Kennedy, supra at 32.

Nevertheless the State now attempts to resurrect a discredited logic it withdrew when it moved to dismiss the Soto appeal -- the notion that a victim of racially selective law enforcement must identify specific individuals who were not prosecuted from stops on a busy highway and/or that the claimant was the subjective discriminatory object of a particular policeman. These notions have been rejected by our courts as well as the State itself within the Interim Report and by tacit admission in its withdrawal of its appeal in Soto, supra.⁽⁷⁾ The State surely knows that the notion that a victim of racially selective highway traffic law enforcement must first show the existence of distinct, similarly situated individuals who were not prosecuted is an impossibility without basis in common sense. Indeed, asserting this concept in the same Brief in which the State alleges that "[in some profile challenges] the State has recognized that many defendants are entitled to discovery" defies logic.⁽⁸⁾ Neither in Soto, supra, nor in any of the pending cases have courts required or have defendants made such a showing.

More important, statistics, particularly in cases of highway profiling, do show the existence of the fact that specific, non minority individuals were not targeted while minorities were stopped. The traffic surveys submitted in Soto, supra and in the court below demonstrate that minorities were stopped grossly out of proportion to their presence on the highway -- i.e. individual minorities were stopped while majority motorists passed by unmolested. In actuality the State requests that this Court end the right of travelers to equality by saddling profile claimants with an absurd and impossible hurdle. In light of the fact that the State has been forced to admit profiling, this attempt to cut off individuals' rights to invoke a challenge to the practice takes on a cynical and absurd hue.

"Some evidence" of similarly situated people who have not been prosecuted does not mean that specific persons who were not stopped on a busy highway must be identified. Armstrong cited with approval the case of Hunter v. Underwood,471 U.S. 222, 229-231 (1985) and thereby accepted the statistical showing of Hunter. The Kennedy and Soto courts specifically found as much. Kennedy, supra at 33-34; Soto, supra at 83-84.

In State v. Kennedy, supra, the claimants were minorities represented by the Public Defender who challenged the profiling activities of the State Police on Interstate 80 in Warren County. Id. at 27. They moved to consolidate numerous stop and search cases brought about by the State Police on that road claiming a policy, de facto or otherwise, by the State police in the conduct of traffic stops and resultant searches. Id. at 26. They also moved for an extensive array of internal State Police documents to investigate and buttress their claim. The Motion to Suppress showed that even if objectively reasonable, the stops "...were tainted by a long standing, systematic practice of invidious discrimination against minorities reflected in the selective enforcement of New Jersey's traffic laws." Id.

In support of their request for discovery Kennedy's claimants submitted a statistical study which only analyzed the racial composition of persons stopped for traffic offenses on I-80 who were ultimately searched and arrested for an indictable offense. Id. at 34. The Appellate Division found the survey "...marginally sufficient to raise a colorable claim of selective enforcement. At the very least, the data contained in the study took 'the question past the frivolous state and raise[d] a reasonable doubt' as to whether the State Police are enforcing the traffic laws in an evenhanded fashion without regard to non-germane racial criteria." Id. at 33. (citations omitted).

In allowing that a "colorable basis" is proven on the study presented, Kennedy accepted that all is not well in a system where the stark majority of defendants arrested on an interstate artery are minority when the racial mix in the population of all defendants generally is quite different. The court explained:

Despite these deficiencies, the Public Defender's survey raises disturbing questions concerning whether, as defendants claim, members of minority groups are being targeted or singled out for prosecution of traffic infractions. To be sure, we would have been more comfortable had the Public Defender been precise in estimating the racial composition of those who exceed the speed limit on the western stretch of Route 80 and those who are arrested by the State Police for that offense. This much conceded, it is not far fetched to assume that the racial composition of the Warren County Public Defender's clients is approximately the same as those who violate the traffic laws on Route 80 as it passes through that county. As to the racial composition of those arrested for traffic violations by the State Police on Route 80, the State is in a poor position to complain concerning flaws in the Public Defender's survey. These are the very statistics defendants seek to obtain. We emphasize that most of the relevant proof in selective prosecution cases will normally be in the exclusive control of government agencies." Id. at 34. (emphasis added).

The court went on to state that in order to prove a "colorable basis" defendants do not have to establish a full prima facie case (a case that if left unrebuted will support a finding of discrimination). Id.

It is palpable that the showing here is exponentially stronger than that found sufficient in Kennedy, supra, especially in light of the violator survey provided, recent admissions of the Attorney General in the Interim Report, the factual determinations of Soto and other circumstantial evidence presented below that this was indeed a profile stop. See generally DA 2-39; DA 93-136 (Cert. of Skarpetkowski with exhibits).

Civil claimants who employ "ordinary equal protection principles" in equal protection cases can use statistical proof to make their case in chief. See generally U.S. v. Bell, 86 F.3d 820, 823 (8th Cir.1996) (citing Swint v. City of Wadley, Alabama, Wadley, Ala., 51 F.3d 988, 1000 (11th Cir. 1995)). Also see Castaneda v. Partida, 430 U.S. 460, 495-501, 97 S. Ct. 1272,1280-83 (1977); Wards Cove Packing Company v. Atonio, 490 U.S. 642, 109 S. Ct. 2115 (1989). Kennedy made it clear that statistical proof could be used for the initial "colorable basis" stage and strongly implied that such proof could be used by claimants in their prima facie case or case in chief. Soto explicitly accepted statistical proofs as competent for a prima facie showing. Soto, supra at 84.

It is most notable -- and troubling -- that in order to maintain the fiction that the court below erred by accepting Defendants' evidentiary proofs, DA 2-39; DA 93 -136, the State does not even refer to the particulars of that showing within this appeal. This silence is at best an acceptance of the solid validity of defendants' showing. Instead, as discussed more fully below, the State is left only with the threadbare issue of under what circumstances the State will concede a person appears or presents as Hispanic or of Hispanic origin and thus allowed to be free from selective law enforcement. Nevertheless, it is only through its failure to alert this Court to the powerful evidence below that the State hopes to construct the issues on this application.

Building further on inconsistent logic, the State attempts to graft into this area of jurisprudence the limited death penalty holding of McClesky v. Kemp, 481 U.S. 279 (1987) for support of the proposition that individual claimants must show that individual non-claimants were left free from race based stops. On its face McClesky is wholly irrelevant to racially selective highway law enforcement; it is specifically addressed to discrepancies in death penalty verdicts. Nevertheless, the New Jersey Supreme Court has expressly stated that our Constitution would require a different result, even in death penalty matters, if the penalty statistics in this State were similar to those present in McClesky. State v. Marshall, 130 N.J. 109, 613 A.2d 1059, 1109 (1992).

Kennedy and Soto make clear that unlike the inquiry in Fourth Amendment jurisprudence, it is the policies of the Agency -- the State Police --at stake and not the supposed objective reasons proffered by the officer on the beat as is the case in Fourth Amendment challenges. Kennedy, supra at 29 -31; Soto, supra at 83. On its wholly inaccurate legal construct the State bases its proposed theory on appeal concerning Maiolino's failure to show that she was specifically targeted for racially motivated law enforcement. More troubling than the State's legal distortion on this point is the fact, as will be noted further below, that the State has misstated the extensive evidence Maiolino did present on the issue of her obvious appearance and presentation as a Hispanic.

C. The Trial Court Had Before It a Woman of Obvious Hispanic Origin or Appearance.

As noted above, the State's call for wide ranging, individualized hearings to determine the bona fides of a profiling victim's right to bring a claim is without merit. Attempting to disguise its incorrect legal analysis in an attempt to have this Court overrule Kennedy and Soto, supra on the issue of individualized hearings, the State hopes to force individualized hearings alleging: 1) the thoroughly discredited notion that troopers generally and in this case can not see race at night; 2) the false assertion that "nothing in the record establish[ed] that Ms. Maiolino is, in fact, an Hispanic," State brief at 21(emphasis in original); 3) the absurd notion that Hispanics are not a cognizable group (Sb at 22) and 4) because the State chooses to contest Ms. Maiolino's race, this Court should return to the bygone era of Jim Crow to establish rules of lineage to determine pure versus less than pure racial attributes and the rights which attach based on those percentages.

1). Race Has Been Conclusively Proven To Be Visible At Night.

The State is misguided in its reliance on the self serving affidavit of one of the officers involved. Sb at 23. (Pa 31-32) This-after-the-fact assertion is simply not relevant to the issues at hand. Further, the self-serving denial of the ability to observe race at night is insufficient and contrary to the established facts of Soto as well as the Interim Report. In Soto it was proven by the defense and the Court so found, that troopers can see race at night. Soto, supra at 75. Of particular importance in Soto was the concession of the State's own expert therein that for profiling to succeed a trooper did not have to have the ability to identify the race of every driver, just a plurality so as to drive the racially disparate numbers that were so "stark" in that matter and apparently almost twice as high in the instant matter. Id. at 84 - 85; DA 23 -24.

Further, the Interim Report does not limit its admission of the fact of profiling to the daylight hours only. The Report conceded that profiling exists. It defies logic to suggest that the magnitude of the problem established in and between the lines of the Interim Report as well as the clear finding and evidence in Soto is one that occurs only in daylight. The State's desperate attempt to resurrect this long discredited rationalization is simply disingenuous. Hence the fact that a trooper tried to allege otherwise in the instant matter provides serious credibility questions. At a minimum, in light of Soto, the Interim Report [and the certification of Richard Rivera conspicuously left out of the State's Appendix, (DA 4-6)] the issue of racial visibility at night is well beyond question at the "colorable basis" stage. More likely, as discussed below, the State is collaterally estopped on this issue in any event.

Between the lines the State asks this Court to overturn established precedent and turn Fourteenth Amendment selective law enforcement challenges into individualized Fourth Amendment hearings. Kennedy, supra; Soto, supra. Under the State's suggested scheme, the focus would turn away from the established notion of an agency policy to the Fourth Amendment analysis of the officer's proffered reasons for a stop. In other words focus only on trees and not the forest.

Moreover the State asks that since the Troopers say they can't see race at night this per se should resolve the issue, even though the evidence is overwhelming that race can be seen at night. Also implicit in the State's argument is the skewed assumption that a trooper's bare denial of the ability to view race at night is all that the State needs to defeat applications such as the instant one. The fact that after a thorough judicial finding of the visibility of race at night in Soto, the explicit concession of the State's expert in that prior hearing and the State's implicit Interim Report admission of profiling as a twenty four hour problem, the present attempt to rewrite the issue is not worthy of serious debate.⁽⁹⁾ In any event, the prior determination on the point is a matter of collateral estoppel. Hernandez v. Region Nine Housing Corp., 146 N.J. 645, 659, 884 A.2d 1385 (1996).⁽¹⁰⁾

The State asks this court to grant troopers a status of credibility merely because they are law enforcement (and despite a wealth of troubling admissions and revelations). In essence the State asks this Court to make the biased decision that merely because troopers have gone on record as taking a contrary position to that of the defense witnesses (as well as prior court findings and State admissions), the troopers' version should prevail. Such biased results do not comport with common sense or with established case law.

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. 1969) cert. den. 53 N.J. 354 (1969). Further, in cases of racial disparity the bare denials of opponents are insufficient Soto, supra at 85. One would hardly expect assent to the charge from the wrongdoer's own mouth. Those who may discriminate "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, 1101 (5th Cir. 1985). "[T]he days of Bull Connor are largely past; discrimination now works more subtly, yet its effects are no less pernicious." Segar v. Smith, 738 F. 2d 1249, 1278 -79 (D.C. Cir. 1984).

Only now, over ten years since the first motion in Soto and in the wake of the results of Soto, the Interim Report and a Consent Decree between the State Police and the Justice Department, does there appear the possibility that a revamped Internal Affairs system will be instituted to deal with troopers' racial misconduct. Ironically, in this appeal the State still requests our Courts to maintain a thumb on the scales of justice and a throwback to the institutional bias with automatic credibility for State Police members over all others.

Lastly, Kennedy speaks to a "colorable basis," the present posture of the case. Even if the troopers' bare denials had any legal substance, that substance can be tested at a plenary hearing. Clearly, from all that has been presented, a colorable basis on this point has been shown.

2). The Record Overwhelmingly Established Ms. Maiolino As A Hispanic Claimant.

A most troubling assertion made by the State in the instant application is the assertion that the record below is devoid of evidence of Ms. Maiolino's status as a Hispanic claimant. The record is replete with such evidence. See generally DA 4-6; DA 7-8; T1-41.25 - 42.16; T1 - 3.4-7.

In other words, there was evidence and reference in the record on every aspect that the State has asserted to this Court was missing: Factual evidence by a trained investigator, expert testimony, a representation by counsel, a viewing by the Court below and thorough argument -- without any motion for reconsideration or timely appeal. It is inappropriate for the State to allege that the record below is devoid of evidence. The fact that it attempts to accomplish this misleading scenario by deleting from its Appendix the wealth of material on the subject compounds the error.

Moreover, the State is misguided in its reliance on the self serving affidavit of the officer about Ms. Maiolino's lineage. This after the fact assertion is simply not relevant to the issues at hand. The assertion of what Ms. Maiolino may or may not have said about her lineage begs the question of her obvious appearance at the time of the stop, be it her physical appearance, name or other indicia of origin. Profiling is the stereotypical use of these criteria for discrimination as the State's admissions in the Interim Report concede. Interim Report at 5; 52-53. Also see Pete Nicacio, et al v. U.S. Immigration and Naturalization Service, et al 797 F. 2d 700, 708,15 (9th Cir. 1985) (Hispanic appearance at issue, U.S. citizen of German extraction allowed to be member of class successfully contesting INS stops of persons with Hispanic appearance); Bennun v. Rutgers University, 941 F.2d 154, 173 (3rd Cir. 1991). ("Discrimination stems from a reliance on immaterial outward appearances that stereotype an individual with imagined, usually undesirable, characteristics thought to be common to members of the group that shares these superficial traits."); Heitzman v. Monmouth County, 321 N.J. Super. 133, 142 (App. Div. 1999)(Even if employee was not actually Jewish he could pursue LAD claim of discrimination on the basis of evidence that he was perceived as Jewish); Poff v. Caro, 228 N.J. Super. 370 , 377 (L.Div. 1987) (LAD prohibits "discrimination based on a perception" that one is within a protected class even if not actually in that class).

Profiling does not victimize only persons with birth certificates or family trees in hand. Profiling demeans the core of our most basic institutions by targeting people for prosecution merely because of indicators such as name or racial appearance. It would compound the insult to force profile victims to prove some arbitrary threshold of racial purity before government could be held accountable for racially selective law enforcement.

The State has acknowledged that there exists a problem within the State Police of misreporting race. "We are especially disturbed by the fact that some troopers falsified data concerning the race of the occupants of stopped vehicles." Interim Report at page 23. At least two troopers are presently under indictment for the problem. By virtue of the instant and companion matters the State strongly resists acknowledging any others it knows of, despite the above citation.

Moreover, our Supreme Court has found that it is reasonable for persons to be nervous during State Police encounters. State v. Lund, 119 N.J. 35, 47 - 48 (1990). Even if the statement attributed to Ms. Maiolino were accurate, the public awareness of profiling could easily have led one in her position to provide a vague and evasive answer on race. While the State may try to downplay this problem, the very fact that the Attorney General has been forced to admit the existence of profiling after years of denial is most telling and certainly underscores the fact that officers' simple denials have little legal substance. Relying on established principles of civil rights law, Judge Francis found simple denials to be insufficient. Soto, supra at 85.

Other misstatements abound concerning the wealth of evidence submitted below. In its papers responding to the a defense motion in this Court the State alleged that "Mr. Rivera's affidavit [ DA 6]merely states that, in his opinion, the defendant has an Hispanic appearance." State reply of December 15, 1999. In reality Mr. Rivera, Hispanic himself, and a former police officer states:

I have had the occasion to view the photo of Ms. Maiolino that the Prosecutor has included with its papers (the same photo in the State's appendix). I have no hesitation in describing Ms. Maiolino as of Hispanic appearance. I would also note that I have seen a copy of the photo drivers' license of Ms. Maiolino provided to the defense in discovery. In this photo as well Ms. Maiolino appears clearly as a Hispanic. As a Hispanic and as a former police officer, the individual in these photos would strike me as Hispanic. DA 6.

In the same document the State alleges that "Dr. Lamberth merely states that the so-called 'Buechley Rules" do not exclude her name as possibly being Hispanic." State reply of December 15, 1999. (emphasis original) In reality Dr. Lamberth instructed:

An important method for classifying surnames is the orthographic structure of surnames. This method of analysis relies on the five Buechley (1961, 1967, 1971, 1976). Rules for inclusion as a Hispanic Surname: 1. The letter K anywhere in the name excludes it 2. The letter W anywhere in the name excludes it 3. A list of the initial 3 letters in the name which, if present, includes it 4. A list of the final 3 letters in the name which, if present, includes it 5. Double letters (excepting rr and ss) excludes it. The name Maiolino is positive for a Hispanic surname for all 5 Buechley Rules. DA 7-8. (footnotes omitted)

In other words Dr. Lamberth testified that Ms. Maiolino's name is Hispanic within an objective set of criteria and not merely that she could not be excluded. Below the State did not question the Buechley Rules, their application here or Dr. Lamberth's qualifications.

3). The absurd notion that Hispanics are not a cognizable

group.

On appeal, for the first time, the State attempts to cobble together an entirely new supposition in its attempt to avoid responsibility for race based law enforcement. Incredibly, the State suggests to this Court that there is no longer any basis to believe that Hispanics may have common attributes in appearance and therefore can not be the subject of discrimination or selective law enforcement. According to the State, there is no and never has been discrimination against Hispanics. For obvious reasons this position is ridiculous.⁽¹¹⁾

While some Hispanics may appear Caucasian, it is also beyond fair comment that certain Hispanic appearance features, and names, and or accents exist and that because of these, Hispanics have been subjected to the "cancer of racism." Racism is not a fair or logical condition - it is based on stereotype and bigotry. That some Hispanics appear Caucasian shows that the stereotypes afoot against Hispanics are that much more invidious. Even if the State had introduced below the one out of context report it only now proffers to this Court, this assertion must be dismissed out of hand as completely illogical and not merely as the State's attempt to introduce new facts into the record.

Equally troubling is the fact that the attempt to convince this Court that Hispanics are not a cognizable group and or are not subject to discrimination runs counter to foundational blocks upon which our law is written. New Jersey's Law Against Discrimination (hereafter "LAD") N.J.S.A. 10:5-1, et seq. prohibits discrimination against Hispanics. See generally Hernandez v. Region Nine Housing Corp., 146 N.J. 645, 650, 651, 684 A.2d 1385 (1996); Alamo Rent A Car v. Galarza, 306 N.J. Super. 384 (1997). In our criminal jurisprudence Hispanics have long been accepted as a cognizable minority. See generally, State v. Bey, 137 N.J. 334, 392 (1994). Numerous administrative regulations define "minorities" to include Hispanics, e.g. N.J.A.C. 19:53-1.2. It is uncontroverted that law enforcement regularly employs the racial identifier of "Hispanic" to exchange information concerning a suspect's description. See generally State v. Zapata, 297 N.J. Super. 160, 165-166 (App. Div. 1997). Persons of Hispanic lineage enjoy the right to enforce their civil rights pursuant to 42 U.S.C. § 1981. See generally Saint Francis College, et al. V. Al-Khazraji, 481 U.S. 604, 611 -613, 107 S. Ct. 2022 (1987); Bennun v. Rutgers, 941 F. 2d 154 (3^rd Cir. 1991).

Most important, the State has admitted that Hispanics are and have been a subject of State Police selective law enforcement. The Interim Report is replete with both explicit and tacit admissions that not only do the New Jersey State Police classify persons as Hispanic, the agency has in fact discriminated against them. Id. at 24 - 26, 35, 57, 58, 67. Moreover the Interim Report defines profiling as

any action taken by a state trooper during a traffic stop that is based upon racial or ethnic stereotypes and that has the effect of treating minority motorists differently than non-minority motorists. We have thus elected not to limit our review to a trooper's initial decision to order a vehicle to pull over. Rather, we also consider a host of other actions that may be taken by State Police members throughout the course of a traffic stop, such as ordering the driver or passengers to step out, subjecting the occupants to questions that are not directly related to the motor vehicle violation that gave rise to the stop, summoning a drug-detection canine to the scene, or requesting permission to conduct a consent search of the vehicle and its contents. Id. at 5. (emphasis added)

Further, the State police everyday classify persons as Hispanic in Arrest Reports, Operations Reports and myriad other documents. State Police training refers to Hispanics. DA 2-3. It is most apparent that even the decision on classifying a person as an Hispanic is a matter of trooper discretion.⁽¹²⁾

What is at stake therefore are racial or ethnic stereotypes that come into play at any point during a traffic stop. Even a person not viewed as Hispanic at the outset can become the victim of profiling after she is perceived as Hispanic during the stop because of her name, perceived appearance, accent or other indicia of origin. See Certification of Lamberth attesting to the fact that Maiolino meets all the requirements of a Hispanic name. DA 7.

Stereotypes demean people based on these very criteria. The State has admitted that State Police law enforcement activities have been driven by stereotype. Yet the State instead would now have this Court believe that there are well defined criteria -- rational criteria-- upon which racial selectivity acts. But there are none.

Nowhere in the Interim Report does the State define "Hispanic," yet it admits that the State Police have discriminated against those perceived to be part of the group.⁽¹³⁾ As Soto found and the Interim Report conceded, a key component of profiling is the unbridled discretion of the trooper to act on the stereotypes. Soto, supra at 85. That discretion is part of the invidious and arbitrary nature of the offense. Now, hoping to avoid responsibility for perhaps decades of tolerance of profiles, the State seeks to credit the logic of bygone codes of racial purity by implying that courts could determine claimant status with scientific precision. The very fact that troopers, armed with total discretion, acted on trained, officially sanctioned, undefined stereotypes, highlights the solid basis for the determinations of the courts in these appeals (as well as the reasoning of Judge Lisa).

Lastly, whatever spin the State may now wish to place on the meaning of "Hispanic," it is also uncontroverted that for years, some of the most offensive profile training involved NJSP targeting of Hispanics, that "ethnicity was something to keep in mind" and that "Hispanics mainly involved." See Soto, supra at 80. Also see DA 2-3 (P-14 in evidence in Soto noting "Hispanics mainly involved.") Having sent forth its troopers with total discretion to target persons perceived as Hispanics, it is now most disingenuous for the State to allege the term has no practical or dynamic content. Having accepted the sad reality of profiling of Hispanics less than a year ago in the Interim Report, the State now does no less than justify the problem by attempting to strip all content from its clear and compelled admissions.

4) The State suggestion that courts establish rules of lineage to determine pure versus less than pure racial attributes is an invitation to return to a discriminatory past.

In the Court below counsel faced a dilemma: whether or not to dignify the State's assertion that Ms. Maiolino was not Hispanic. Opting for a thorough record, the defense overwhelmingly met those allegations. However, the very assertion by the State suggests that our courts return to a shameful time in our history where bloodlines and or the percentages of bloodlines determined one's legal status. This Court should decline the invitation to return to that era.

The only reasonable approach is to stand firm to the method required by Armstrong, Kennedy and Soto. That approach is to require nothing more than "ordinary equal protection standards." Armstrong, supra. As noted in Nicacio, supra, it is appearance that is the appropriate inquiry (even for German extraction U.S. citizens who appear Hispanic) and nothing more. On the record below the Court had abundant evidence to find the obvious on the appropriate legal standard -- that Ms. Maiolino has established more than a colorable basis that she is the victim of an Hispanic profile.

Relying on ordinary equal protection principles it is beyond serious question that Ms. Maiolino has already established more than would be necessary to merely survive a motion for summary judgement. She has made the case on the issue of her claim as a Hispanic claimant. See Bennun, supra at 173-174. In reality the State again requests on this point that this Court give heightened weight to the bare denials of one trooper over the wealth of evidence recorded below: an expert opinion (DA 7); the opinion of a trained investigator and former policeman, himself Hispanic (DA 4); a viewing by the Court (T41-25 - 42.16; T3.4-7); representations from counsel Id.; and the established fact, presented below and in the Interim Report of State Police misreporting of race as well as concerns for credibility in this very case. Compare original Complaint to Indictment. DA 154 - 155.

Opting to substitute personal opinion for evidence, the author of the State's Brief attempts to unilaterally declare that Ms. Maiolino does not appear Hispanic and that this view should preponderate over expert testimony from Dr. Lamberth, experience based testimony from Mr. Rivera and the trial court viewing. While it is obvious that even the photo presented by the State clearly shows a woman of Hispanic appearance, it is the trial court viewing of all of the facts, including Ms. Maiolino in court, which controls.

The State's request is in reality a request for this Court to determine de novo facts determined below, contrary to established appellate principles. "Thus, coupling the evidence the cold record presents with the district court's opportunity to observe [claimant] we hold that its determination that he was Hispanic is not clearly erroneous." Bennun, supra at 173 (emphasis added). "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).

[F]indings of fact made by trial judges in non-jury cases must be affirmed if amply supported by the evidence; or by competent, reasonably credible evidence; that such findings are entitled to great weight on appeal; that they are entitled to every intendment in their favor and must not be reversed merely because a doubt is raised; that they must not be set aside unless so plainly unjustified by the evidence that interests of justice necessitate their nullification; or unless in conflict with the preponderating proofs; or so manifestly unsupported by or discordant with competent, relevant, and reasonably credible evidence as to offend the interest of justice.' ...'It is not our function in reviewing the conviction in question to weigh the evidence anew and to make independent findings of fact as if we were sitting in first judgment on the case. Rather, our obligation is to determine whether there is adequate evidence to support the judgment rendered below.'...

When the reviewing court is satisfied that the findings and result meet this criterion, its task is complete and it should not disturb the result, even though it has the feeling it might have reached a different conclusion were it the trial tribunal. That the case may be a close one or that the trial court decided all evidence or inference conflicts in favor of one side has no special effect.

State v. Johnson, 42 N.J. 146, 161- 162 (1964).

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

The defense will not restate here its previous arguments but will rely on the arguments set out above as well as the evidence submitted below. DA 2-39; DA 93-137 It is important to note yet again that the State attempts to present the impression of an insufficient factual record below by its own refusal to place before this Court the overwhelming evidence submitted below. The State sought no review or reconsideration of the October 8, 1999 Order (PA 1) opting instead to write the self-serving, and inaccurate letters described above. Compare PA 9 to DA 54. Lastly, the State's complaint of lack of evidence is that much more disingenuous and odd in light of the fact that it apparently concedes the results of defendants' statistical proofs. See DA 64-65.

Below, when the Attorney General belatedly decided to enter the matter, he sought to delay the advanced proceedings alleging a State intent to do surveys and/or studies of its own. PA 10-11. It offered no credible explanation for its failure to be interested in studies earlier. Below, the State alleged that it would conduct studies by mid-December 1999, but again failed to do so. Compare PA 10-11 (DAG Heinzel assures trial court of State hiring of yet another expert to do "studies" ) with DA 64-65 (apparently State opting not to do studies). Indeed, in its initial Brief in Support of its Motion for Leave to Appeal in this Court, the State again alleged that the court below did not allow the State time to belatedly conduct studies of its own. State Letter Brief of Nov. 29, 1999 at page 4. Yet the State no longer contests the actual defense showing that Hispanics and African Americans are stopped in proportions much greater than their numbers or the refusal of the trial court to allow the State yet another opportunity to start anew to supposedly "study" profiling.

THE ORDER FOR PRODUCTION OF DOCUMENTS ON REMEDIAL MEASURES

WAS APPROPRIATE. THE STATE'S ATTEMPT TO LITIGATE THIS ISSUE

BEFORE IT HAS EVEN ADDRESSED THE MATTER TO THE TRIAL COURT

IS PREMATURE AT BEST.

A. The issue is premature.

The State last complains about the provision for discovery of remedial materials. It is interesting to note that the State does not claim a privilege in these documents. They are clearly exculpatory or potentially favorable. Brady v. Maryland, 373 U.S. 83 (1963) and Kyles v. Whitely, 514 U.S. 419 (1995). With little basis the State prematurely alleges that the material is inadmissable. However, the test for appropriate discovery is not admissibility but its ability to lead to admissible evidence.

More importantly, the State inappropriately asks this Court to take original jurisdiction of an issue clearly entrusted to the trial court. The State has inexplicably delayed for months any assertion before the trial court of any issue of privilege or request for protection. Instead it opts for appellate review of an issue never even raised, months beyond that which any diligent party could have raised a credible issue. Moreover, of necessity the trial Court must conduct an appropriate inquiry with a right of the defense to be heard.

B. Subsequent remedial conduct is discoverable and

The State misperceives the issue of admissibility as opposed to discoverability in its attempt to prevent discovery of remedial conduct by the State. The two concepts are clearly separate and distinct.

Evidently, the State's view is that having made the promise not to ever do it again, neither the Court nor the Defendants are entitled to know 1) the extent to which the official policies are evidential in their cases and 2) if the official policy or the de facto official practice of profiling has in fact changed and if so when. It may in fact be that the purported "subsequent remedial measures" were not remedial at all. Certainly, if troopers were promoted after conducting racial profiling, it is evidential to the issue of whether these defendants were the victims of a pattern of selective enforcement. If the purported remedial measures involved only minor discipline or reassignment so that the poison of racial profiling is merely displaced elsewhere (such as I-78 from the Turnpike, perhaps?) that may indeed be evidential of the State's practices concerning profiling and make it more likely than not that such profiling did in fact take place against these defendants. Oddly, the State now makes a strong case for the very relevance of some of these materials by virtue of its attempt to deny cognizable status to Hispanics. Since the State has admitted profiling against Hispanics, what definition did it employ, what issues of false reporting has it rectified and what retraining did it require. Indeed, by virtue of positions the State now takes in this very action these materials are implicated by the holding of Brady, supra.

The State's reliance on N.J.R.E. 407 is rather peculiar, insofar as it exists principally in the civil context, rather than the criminal. In its brief, the State pastes citations in Biunno, Current N.J.R.E., Comment, 1, N.J.R.E. 407 (Gann) alleging that the materials sought are inadmissible and offering odd platitudes of public policy. The State's argument is flawed for several reasons. As discussed above, the records sought are highly probative of the State's policies concerning profiling and the particular conduct of troopers.

Even if the materials required by the Order for discovery do not turn out to be ultimately admissible in of themselves, they may still be relevant. "'Relevant evidence' ... is defined ... as 'evidence having a tendency in reason to prove or disprove any fact of consequence to the determination of the action.'" Payton v. New Jersey Turnpike Auth., 148 N.J. 524, 535 (1997).

In Connolly v. Burger King Corp., 306 N.J.Super. 344 (App. Div. 1997) plaintiff sought discovery of her former employer in litigation arising from her termination following complaints of sexual harassment by a co-worker. She demanded discovery of her co-worker's records and any documentation of complaints made 'by anyone' concerning inappropriate sexual conduct by any of defendant's employees in three states. The trial court permitted plaintiff to discover files concerning only the specific abuser named in the complaint. The Appellate Division reversed, holding that the plaintiff was entitled to discovery of any and all other complaints, including those involving non-parties on the ground that the material was relevant to whether defendant had adequately enforced its own internal policies.

Significantly, the Court also held that the material was relevant to whether defendant had "effective, formal and informal complaint structures, training, and/or monitoring mechanisms."

"Those elements are relevant because the existence of effective preventive mechanisms provides some evidence of due care on the part of the employer. The absence of effective preventive mechanisms will present strong evidence of an employer's negligence."

"Moreover, the absence of effective responses to sexual harassment claims in general may foster an atmosphere of tolerance contributing to a sexually hostile atmosphere and may constitute willful indifference which is a predicate for the award of punitive damages." 306 N.J. Super. at 348-349, quoting Payton, supra [emphasis in original].

The State's citation to Evid. Rule 407 affects neither the relevance nor the discoverability of the materials sought. Rather, it is a diversionary tactic intended to draw attention away from the State's failure to take appropriate remedial action.

Further, the State undercut its own argument by relying upon the public policy underlying the Rule. Sb at 30. At pages 29 -30 of its brief, the State cites Biunno to the effect that "[t]his rule is 'based upon social policy' [and was] 'designed to encourage, rather than discourage, the taking of immediate steps after an unfortunate event for the purpose of preventing future harm.'" The State will be hard-pressed to insert the square peg of its legal argument into the round hole of this public policy.

Simply put, the public policy served by the rule is to prevent juries from unfairly penalizing a civil defendant for making repairs. Nowhere does the rule prohibit an adverse inference when the same defendant fails to make repairs. Certainly, mere discovery of its alleged 'remedial efforts' will not have the effect of preventing future harm.⁽¹⁴⁾

All defendants seek at this juncture is discovery of the alleged remedial efforts. The issue of whether such efforts will ultimately be admissible is for another day.

The tone, quality, extent and participation of an agency's hierarchy in remediation or its refusal to meaningfully remediate is highly relevant in civil rights matters. Accordingly, in the simplest and most immediate sense, the material requested is discoverable at this point because it is clearly relevant and reasonably calculated to lead to admissible material. Indeed R. 4:10-2(a) specifically provides "it is not a ground for objection that the information shall be inadmissable at the trial if the information shall appear to be reasonably calculated to lead to the discovery of admissible evidence." Id.

One of the essential issues in this case, as was the case in Soto, is the complicity of the State Police either as individual troopers and/or the hierarchy in a policy or practice of profiling. In Soto, through a "wink and nod" system the hierarchy allowed a climate where profiling thrived. One such element of this climate was the conscious failure and/or knowing failure of the State Police to enforce its own facially neutral S.O.P.'s requiring the reporting of race identifiers. See State v. Soto, supra at 72. Indeed, the Interim Report acknowledges the problem of misreporting race, failure to report race and the falsification of race identifiers.

We are especially disturbed by fact that some troopers falsified data concerning the race of the occupants of stopped vehicles. ... In past years, information concerning the racial characteristics of detained motorist was sometimes not provided to dispatchers or recorded in accordance with State Police operating procedure F-3. To a large extent, this problem had already been rectified."In March, 1996, the Superintendent issued a teletype ordering compliance with standard operating procedure F-3, and in April, 1996, State Police members were required to read and initial a memorandum concerning the enforcement of this standard operating procedure. Interim Report at 25, 31 (emphasis added).

Incredibly, discovery provided to date indicates that despite this self-serving language - "[t]o a large extent, this problem has already been rectified" - subsequent to March 1996 and continuing almost to the present, the unquestioned majority of stops by the State Police acting out of the Perryville station did not report racial identifiers. DA 87. ⁽¹⁵⁾

In this selective law enforcement challenge, resting as it does at the confluence of civil rights and criminal law, the participation and actions of the agency and its hierarchy are directly at stake. State v. Kennedy, 247 N.J. Super 21, 29-30 (App. Div. 1991); State v. Soto, supra; Monnell v. Department of Social Services of City of New York, 436 U.S. 658, 691 (1978); Thompson v. City of Los Angeles, 885 F 2^nd 1439 (9^th Cir. 1989) (Hierarchy inactivity in the face of notorious allegations of officers' unconstitutional conduct sufficed to find institutional liability on the police department's part for future incidents); Wilson v. Chicago, 707 F. Supp. 376 (N.D.Ill. 1989).

While the State may employ self-serving attempts to blunt the examination of the truth by denoting this highly relevant area as "remedial," the legal context of this aspect of profiling highlights the much larger implications at stake. In the Interim Report the State's self-serving allegation that only "a small number of troopers" are or may be behind profiling, the very statistics contained in that document show agency wide action and policies. Soto is in accord. Discovery already indicates that years subsequent to the highly touted March 1996 "correction" of the problem of misreporting or failure to report race identifiers, the problem flourished in Perryville (State Police Barracks at issue here). (DA 87)

It is simply insufficient for the State to attempt to mask by euphemism this highly relevant material. The very fact that the State may have chosen not to investigate this flagrant disclaimer to its allegation that misreporting was cured shows how relevant this material remains. Here the State's attempt to shield itself from potential criticism by labeling these materials as "remedial" is, at best, misplaced. The guise of "remedial measures" is not a shield with which to cover its own misdeeds and misconduct.

Additionally, it is ludicrous for the State to allege the stops in this case occurred prior to the issues in the Interim Report (SB at 29) when State Police policy for a period of years is at stake. Moreover, it is highly telling, as noted above, that as recently as the publication on April 20, 1999 of the Interim Report that the State had alleged one major mechanic of profiling - the misreporting of race and/or the failure to report race - had been rectified. Yet discovery in the instant matter already proves that assertion false. In other words, discovery in this matter compared against the very language of the Interim Report indicates that no effective remediation occurred and that although the hierarchy was aware of the problem for years it did nothing, opting for spin control instead of substance.

Ironically, the quoted portions of the Interim Report noted above foreshadow major issues in this matter specifically exempted by N.J.R.E. 407-- namely the issues of identity and control. Whereas, pursuant to N.J.R.E. 407, subsequent remedial measures may not be admissible, "evidence of such subsequent remedial conduct may be admitted as to other issues." Id. In particular, remedial measures are not only relevant but admissible to show that a particular individual or entity exercised control of property or of an operation. Perry v. Levy, 87 N.J.L. 670, 672 (E.&.A. 1915); Manieri v. Volkswagenwerk 151, N.J. Super 422, 431-435 (App. Div. 1977); Reed v. Monmouth Oil Company, 42 N. J. Super 355, 362 (App. Div. 1956). Additionally, remedial conduct evidence may be admissible to prove that a condition existed at a particular point in time. Perry v. Levy, supra; Millman v. U.S. Mortgage and Title Guarantee Company, 121 N.J.L. 28, 34-35 (Sup. Ct. 1938). Accordingly, in light of the State's attempt, at present and through the Interim Report, to distance the hierarchy of the State Police and the Attorney General's Office from racial profiling, remedial conduct is admissible to show that profiling may very well have been the product of the hierarchy and not a few scapegoat troopers.

Other exceptions to the non-admissibility of remedial conduct to show culpability for a particular event abound. Evidence that a governmental authority shut down the George Washington Bridge to van traffic, after a van accident, was held admissible on the issue of how the defendant interpreted its previously announced policy on bridge closings. Ryan v. Port of New York Authority, 116 N.J. Super 211 ( App. Div. 1971). Evidence of a defendant's recommendation that a particular blood test be employed was offered to refute that defendant's later testimony that the blood supply would have been in danger if that test had been employed. Snyder v. American Association of Blood Banks, 282 N.J. Super 23, 46 (App. Div. 1995), affirmed 144 N.J. 269 (1996).

Within the context of the New Jersey Tort Claims Act, evidence of how simple it would have been to correct a particular dangerous condition was admissible to show the unreasonableness of the State's delay in scheduling the repair. Brown v. Brown, 86 N.J. 565 (1981); also see Weiss v. New Jersey Transit, 245 N.J. Super. 265, 269 (App. Div. 1991), rev'd.on other grounds, 121 N.J. 376 (1992). Lastly, in Dennis v. City of Newark, 307 N.J. Super. 304, 314-316 (App. Div. 1998), the Court held that documents relating to a police officer's disciplinary history in his personnel file should have been turned over to a plaintiff who had brought a negligent hiring and retention action against the City and its police department because of the officer's assault against her. The Court reasoned that the records were essential for the plaintiff to show that the defendants knew of the officer's dangerous propensities.

All of the authorities cited above show that it is palpable that the materials which the State seeks to shield from scrutiny are not only highly relevant and certainly discoverable, but most probably admissible. The State's attempt to use self-serving rationalizations to prevent this discovery is misplaced. In any event, above and beyond the issue of discoverability, the material appears to clearly fit within the reasoning of Dennis, supra, to illuminate the hierarchy's knowledge of its agency's dangerous propensity to engage in racially biased law enforcement.

Finally, the Interim Report speaks extensively and openly of remedial conduct that must be taken. An entire section of the Interim Report is addressed to "Remedial Steps." See Interim Report at "Part V. Remedial Steps." Pages 86 -110. Having published the Interim Report, placed it on the Internet and trumpeted it at press conferences and throughout the media, the State is hard pressed to credibly argue that it has not waived any residual privacy in this issue. More likely is the fact that the State really hopes to prevent disclosure of facts that may show that it has done little in the way of promised remediation despite its self publicized promises. However, this Court should not side with such self serving goals of a party.

Between the lines the State's present appeal concedes that the defense evidence shows a colorable basis to conclude that racially selective law enforcement exists on I-78. It has explicitly conceded this point in the companion matter of Dickerson. Instead, the State hopes to avoid examination of this injustice essentially claiming after the fact rationalizations about Ms. Maiolino's race should control, instead of the those objective aspects of Ms. Maiolino's origin which were subject to admitted trooper stereotyping and abuse of discretion. Moreover the State distorts the record to claim that "nothing" in the record established Ms. Maiolino as a proper Hispanic claimant. Overwhelming evidence was presented below on behalf of Ms. Maiolino. In its attempt to avoid actual responsibility for profiling the State admits the substance of profiling generally but hopes, through the distortion of the record below, to argue that profiling is not present in the individual cases here.

In reality, the colorable basis showings below were stronger than the "stark" showing which compelled the decision in Soto. Whereas Soto found the fact that African Americans were 4.85 times more likely to be stopped to be "stark" proof of racially selective law enforcement, the instant matter presents the specter of Hispanics stopped 7.2 times more often than Caucasians. Additionally, Ms. Maiolino clearly presents as a Hispanic woman and her proofs below established that fact.

Lastly, the State is misguided to imply in any fashion that selective prosecution claims are easy to raise under current law. Claimants continue to face significant burdens thoroughly consistent with case law. The fact is that after decades of State denial and mismanagement of selective law enforcement, the evidence is overwhelming that the problem exists. Yet the State confuses this unique historic fact with the requirements of the law. Simply stated, it is the extensive evidence of profiling that at present compels profile challenges, and court colorable basis findings. The State would prefer to kill the messenger than face the message. At a minimum the State created the scandal of profiling by years of tolerance and inaction. Instead, when the State decides to finally face head on the consequences of decades of racially selective law enforcement, profile challenges will appropriately diminish.

Respectfully submitted,

William H. Buckman Attorney for Ramona Maiolino

Dated:

1. For the sake of brevity the entirety of that evidential showing has not been included herein and the undersigned certifies that it is not a required item for the Defense Appendix pursuant to R. 2:6-1.

2. Hence the State is mistaken to assert in its brief that "the matters were to be heard separately" and that Judge Bernhard "on his own motion" considered the matters jointly. Sb 1.

3. The transcript of the August 13, 1999 hearing is denoted as "T" and the transcript of the September 24, 199 hearing is denoted "2T." The October 24, 1999 transcript is denoted "3T."

4. Below the State tried to argue that its officers could not see race at night, an allegation thoroughly discredited and established to the contrary in Soto, supra at 75 as well as by implication in the Interim Report. See argument infra at 20-23. Indeed, the attempt to allege below that race is not visible at night only served to undercut the credibility of the officers whose affidavits the State advanced. This is so because 1) generally this fact has been established to the contrary as noted below and 2) because in Maiolino's specific case it was clear that race was visible at night, particularly in the location where the Troopers were stationed. DA 4-6; T 22-12-20; T27-13 to T28-12. Indeed, the State does not even refer to the affidavit of the Trooper who was most discredited below.

5. Even in this last example, the issue arises that if the State Police would not be disposed to stop majority travelers with plants so protruding from their windows, then the potential for a profile stop may still exist.

6. A consistent theme in this and the companion appeal is that the State thinks these claims are too easy to present. However, the State confuses the present state of the evidence showing that minorities have been victims of profiling with the standards for mounting a challenge. The present state of the evidence, one clearing showing that minorities have been victims of discrimination is due to the State's mismanagement of the issue. It delayed and denied for years while the problem became so widespread and undeniable that the State was forced to admit the problem. It is not that these challenges are easy to mount. Instead, because the evidence of misconduct at present is so overwhelming, present claims are undeniable.

7. Moreover, this notion is entirely inconsistent with the State's position on these consolidated appeals. In its companion brief in Dickerson the State concedes that it does not contest the colorable basis showing of profiling claimants in Burlington and Gloucester Counties. The fact that the State concedes the overall propriety of these colorable basis showings underscores the fact that its assertion of a supposed need to demonstrate individual discrimination amidst the non discrimination against majority motorists underscores the State's logic as flawed and baseless.

8. Ironically, despite this self serving assertion of its willingness to provide discovery in other cases, long after challenges were filed in Burlington, Gloucester, Bergen and Hunterdon Counties, no discovery has been provided except for the incomplete materials provided in Hunterdon. Whatever the categories may be of contested documents, it is a simple fact that in reality the State has provided not one page of discovery in all other counties despite its attempt to appear agreeable. Moreover, the fact that it so strenuously delays at least some of the discovery it implies should have been forthcoming should further guide this Court on the bona fides of State allegations that profile challenges are of undue length.

9. It is telling on this issue that the State does not include the self serving affidavit of the other Trooper involved in Ms. Maiolino's stop. Perhaps stretching too far on the issue of visibility at night, that Trooper alleged that there was no artificial lighting in the area where Ms. Maiolino was stopped. In rebuttal, a defense investigator examined the area to find abundant sources of artificial lighting and a flat, well traveled median which allows troopers to park perpendicular to the highway allowing even better visibility of race at night. (DA 4-6); Interim Report at 24-25.

10. In the companion matter of Dickerson the State attempts to argue anew that radar tickets are race neutral. State Brief in Dickerson at 55 - 56. Soto resolved this issue as well. In reality, after a lengthy discussion of the State's assertion of race neutrality in radar stops the Court in Soto found "although a radar device is race-blind, the operator may not be." Soto, supra at 75. Of the sophistic attempt of the State's expert in Soto to concoct a rationalization to show that radar tickets were race neutral the Soto Court said "[t]he calculation is worthless." Id. at 77.

Elevating cynicism to an art form the State now attempts to further mislead this Court in Dickerson by suggesting that in Soto defense expert Dr. Lamberth agreed that radar tickets are race neutral. In reality what Dr. Lamberth established was that in comparing the tickets of the discretion less Radar Unit troopers to those of general patrol troopers (the very type of troopers involved here) stark patterns of race non-neutrality appeared. Soto, supra at 75.

11. This notion must be viewed beside other misplaced State positions in its fight to thwart profile examination. Soto showed that African Americans were 4.85 times more likely to be stopped than Caucasians. On appeal the State disputed this but also offered the conjecture that Blacks were stopped more because they drove in a way as to be more noticeable to troopers, i.e drove worse. State Appellate Brief in Soto, A- 5334-95T3 at page 76 -79. The State offered this even though all State witnesses said blacks did not drive differently than others. Discovery only recently provided shows that the State knew before filing its Soto appellate brief that its position was meritless: A State Police memo written six months before filing of the State's Soto brief confirmed that "[t]he percentage of minorities stopped by both minority and non-minority troopers was dramatically higher than the 'expert' testified to in the Gloucester County trial." DA 157.(emphasis added)

12. See footnote 13, infra.

13. Ironically, part of the State's present appeal is the attempt to prevent defendants from obtaining discovery of how the State decided who was and who wasn't Hispanic when it published the Interim Report, and in any and all studies it has done investigating profiling. Nevertheless, it is beyond question that the State employs the classification "Hispanic" in a myriad of State Police functions.

14. Indeed, the sentiments expressed in the Interim Report and the actions required in the Consent Decree strongly suggest that a public airing of the new and improved State policies would actually further public policy.

15. This item was submitted in response to a motion file by the State in the Court below. However, the State filed the instant appeal before the trial court addressed the State's motion on these issues.