On March 4, 1996 the Honorable Robert J. Francis, J.S.C. decided the consolidated suppression motions of nineteen African American defendants in State v. Soto, etc., el als. ⁽²⁾

Exhibit ----- (hereafter "Opinion") Essential to the Court's order of suppression was its finding that the defendants had proven at least a de facto policy on the part of the State Police of targeting blacks for investigation and arrest between April 1988 and May 1991. Slip Opinion, p. 16. ⁽³⁾

(Attached hereto as Exhibit _____). The Court in Soto found that 13.5% of the vehicles operated on the Turnpike in Gloucester County contained one or more African Americans. Id., at p. 2. Additionally the Court also found that only 15% of the passenger type vehicles violating the motor vehicle laws at any given time contained at least one African American. Id. ⁽⁴⁾ Yet fully 46.2% of the vehicles stopped in Gloucester County by the State Police contained at least one African American. Id. African American occupied vehicles were thus 4.85 times more likely to be stopped by the State Police as those occupied by others. Id., at p. 4. Traditional analyses of statistical significance demonstrated overwhelmingly discriminatory behavior. Id., at p. 3. Judge Francis found the statistical proofs to be stark. Id., at p. 16.

The 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. The utter failure of the State Police hierarchy to monitor and control a crackdown program like [the 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 [its expert statistician]. Id.

Key in the court's finding that the State Police hierarchy allowed and tolerated discrimination was the testimony of then retired Colonel Clinton Pagano, the former Superintendent of the State Police. While he was aware of complaints of racial profiling, the most notable being a television series aired on WOR-TV in 1989, he refused to devote any State Police resources to a study, statistical or otherwise, to determine if discrimination was present. ⁽⁵⁾ Colonel Pagano videotaped an address shown to all troopers in response to the television expose', telling his troops to "keep the heat on." Id. , at p. 13, 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 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. Id.

In a subsequent oral expansion of his written opinion, Judge Francis explained that having found the discrimination complained of, he was bound to order suppression of evidence, not then conduct individual suppression hearings to determine whether racial profiling had infected each individual stop. He reasoned:

Judge Baime in Kennedy implies that the traffic stop is another area where you can infer discriminatory intent from general statistics and apply it to a specific situation without taking testimony in this specific situation. And I so held.

Besides, as argued by the defense, if I were to have ruled that the parties would now have to participate in 17 separate hearings pertaining to the remaining 17 stops, most likely the State would present a trooper who would say, AI stopped so-and-so based solely on his violating some provision under Title 39, not because he was black. It's unrealistic to assume any trooper's going to walk in

this courtroom or any courtroom and say, AI stopped so-and-so because he was black, with the defense left trying to refute that solely by cross-examination of the trooper, leaving the court with deciding the issue on the credibility of the trooper where he or she has said, I stopped them based on Title 39, and the defense saying, well, what about the general statistics?

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 statics a loser and a simple way for the State to circumvent the statistics, which again, I found, are stark. Transcript, p. 17, l. 16- p. 18, l. 12.

The State, having entirely abandoned its appeal of the Soto opinion accepted the propriety of this finding.

Notwithstanding Judge Francis' findings, the State claims not to have conducted any studies of State Police discrimination against African American and other minority motorists until February 10, 1999 when the Attorney General ordered the study that produced the Interim Report Of The State Police Review Team Regarding Allegations of Racial Profiling (hereafter "Interim Report").

The Interim Report, ⁽⁶⁾ reviewed the practice commonly known as racial profiling which it defined as the disparate treatment of minorities in selection for stop, search and arrest. "[A]ny action taken by a State trooper during a traffic stop that is based upon racial or ethnic stereotypes and has the effect of treating minority motorists differently than non-minority motorists." Id. at page 5. (Emphasis added) The Interim Report was intended to be an initial statement of the problem; it was not intended to be the final word on the subject. Id., at p. 2 - 3. The report found:

Despite these efforts and official policies to address the issue of racial profiling, based upon the information we reviewed, minority motorists have been treated differently than non-minority motorists during the course of traffic stops on the New Jersey Turnpike. For the reasons set out fully in this Report, we conclude that the problem of disparate treatment is real--not imagined. Id., at p. 4. (Emphasis supplied)

The Report considered not only the initial decision to make a stop, but all that follows, including ordering the driver or passenger out of the car, subjecting the occupants to questioning not directly related to the motor violation that produced the stop, summoning drug detection dogs to the scene and soliciting consents to search the vehicle.

We are thus presented with data that suggest that minority motorists are disproportionately subject to searches (eight out of every ten consent searches conducted by troopers assigned to the Moorestown and Cranbury stations involved minority motorists). Id., at pp. 6-7.

The Attorney General conducted a series of studies of traffic stops and found the statistics to be consistent with those developed in Soto. The Interim Report went on to conclude that the State Police as an organization may have been caught up in the martial rhetoric of the war on drugs and that "de facto discriminatory practices may have been unwittingly reinforced by a series of circumstances and messages that acted commutatively and synergistically to bolster the notion that African-Americans and Hispanics are more likely than Caucasians to be transporting illicit drugs or weapons." Id., at p. 39. Moreover, "the State Police reward system, i.e.: promotion, choice of assignment, Trooper of the Year and like awards gave practical impetus to these inappropriate stereotypes about drug dealers." Id., at p. 42.

[R]ace should not be considered at all by a trooper in exercising discretion to stop a motor vehicle." Id., at 52 (Emphasis in original). Neither should a trooper take race, ethnicity, or national origin into account in taking any step during a motor vehicle stop. Id., at 53 (Emphasis in original). The Interim Report recognized that troopers should have a reasonable, articulable suspicion that a consent search would reveal evidence of a crime before State Police members are authorized to request permission to search. Id. Thus, race cannot be considered in any of the steps involved in a stop and the ensuing encounter with the citizen.

Notably, the Interim Report is vague or declines to detail the specifics of the State Police training which helped fuel profiling. It concedes profiling of Blacks and Hispanics. But the Soto litigation uncovered some of the clearest examples of racial profiling in State Police training, particularly with respect to the targeting of Hispanics. Opinion at page 11- 12; Also see Exhibit --- attached (State Police training handout introduced in evidence during Soto.) ("Hispanics mainly involved.")

The release of the Interim Report was accompanied by a great deal of additional information, some from then Attorney General Verniero and his assistants. This information demonstrated the likelihood that the statistics cited understated the rate at which minorities were stopped and searched and that for years there has been a great deal of information on the practice of racial profiling available to the State Police hierarchy and the Attorney General that had not been disclosed to those alleging racial profiling.

Misreporting of Race: At the time the Attorney General released the Interim Report, he announced the prosecution of Tprs. Hogan and Kenna for recording the race of minority motorists they had stopped as being Caucasian. Investigators had visited the homes of motorists these troopers had stopped who had been identified as Caucasian. In numerous instances the investigators discovered that these individuals were members of minority groups, whose racial identifiers could not have inadvertently been misunderstood. The Attorney General has obtained indictments against these two troopers for various forms of misconduct arising out of such misrepresentations. ⁽⁷⁾

As a practice misreporting race was not limited to Tprs. Hogan and Kenna. At the time he released the Interim Report, the Attorney General had identified at least ten other troopers, who had misreported the racial identifiers of the motorists they had stopped. The intentional misidentification of race creates the reasonable inference that other officers are otherwise engaging in these prohibited practices, particularly in response to the scrutiny of stop data as accomplished in Soto. The misidentification of those stopped distorts the statistics, making it appear that the State Police are stopping minority motorists less disproportionately than they really are. That the Attorney General was able to identify twelve or more troopers as engaging in the practice after only a short and hurried investigation leads fairly to the conclusion that the practice must be more widespread.

Litigation: Complaints of racial profiling predate Soto and continue in its aftermath. In addition to actions filed by aggrieved motorists, minority members of the State Police have instituted litigation alleging that the State Police maintained a hostile work environment by forcing them to be part of racial profiling or remain silent about the practice under threat of retaliation. These cases have proceeded into and through discovery, rendering it likely that these troopers' allegations have been the subject of depositions, which would have been reviewed by employees of the Division of Law, which represents the State Police, and by high ranking members of the Attorney General's office. ⁽⁸⁾

Exhibit ----, attached, is a recent opinion of the United States District Court for the District of New Jersey finding that at least one trooper was forced to endure a hostile work environment when he complained of profiling in the ranks.

The continued allegations of racial profiling would have likely precipitated studies or reviews by the State Police and/or the Attorney General's office both to enable them to advance their own interests in the litigation and in their broader responsibilities of stewardship of the State Police and enforcement of the Constitution of New Jersey in its prohibition of racial profiling. See: Interim Report; authorities in Point I.

The Smith Report: Sgt. James Smith was assigned to the Moorestown Station during and prior to January 1996, when he reported his concerns that troopers were engaging in racial profiling. His supervisor, Lt. Bernard Gilbert had him submit a report of his findings for review. ⁽⁹⁾ Notwithstanding that Soto was in its second month of hearings, that such information was mandatory discovery, and that Moorestown Station personnel were painfully aware of the allegations in Soto, this report was withheld from the defense.

The State Police Gag Rule:

A lawyer for the New Jersey State Police told a Chancery Court Judge yesterday [June 9, 1999] that 13 African American troopers should not be allowed to speak publicly about racial discrimination in the force because their comments would unfairly attack superior officers and reveal confidential State Police information.

Michael R. Cole told Judge Anthony J. Parillo that a State Police regulation requiring troopers to get approval before speaking publicly was necessary to maintain control in the paramilitary organization.

When Parillo asked Cole whether any speech critical of the State Police should be prohibited, Cole said that it should be approved in advance. Philadelphia Inquirer, June 10, 1999.

The Attorney General took this position in response to the request of thirteen current troopers to add their voices to the statewide controversy concerning how the State Police deal with minorities from the public and within the force. Id. The troopers desire to speak as private citizens, off duty and not in uniform. Notwithstanding this request to enjoy the most basic privilege of citizenship, Cole insisted that the Superintendent of the State Police needed to have total discretion in determining whether a trooper could speak publicly. Id. Thus, the State Police have an institutional "blue wall of silence" to prohibit any disclosure of its own lawlessness.

This regulation is consistent with counsel's experience that current troopers are loath to answer even a single question about State Police conduct that does not hew the party line that existed until April 20, 1999 that racial profiling did not exist. While the Attorney General has admitted some extent of profiling he seeks to control any exploration of the issue other than that controlled by the State Police.

The Hotel-Motel Program: The State Police have recruited managers and their subordinate employees at hotels and motels in New Jersey to provide them with tips on potential drug dealers, offering rewards of $1,000.00 to employees whose tips lead to successful arrests. The State Police assure those whom they enlist that no arrests will be made on hotel property, that they will not have to appear in court, and that their identities will never be disclosed.

Several hotel employees and union leaders said troopers have also trained them to take racial characteristics into account and pay particular attention to guests who speak Spanish.

State Police officials, who have been besieged for years by charges that troopers illegally single out black and Hispanic motorists on New Jersey highways, acknowledge that hotel personnel have been enlisted as informers. But they would not say how many people had been searched, questioned or arrested in the program, and they denied that race played any role in it. New York Times, April 29, 1999.

The existence of the program came to light as the result of complaints by hotel employees that the program was racially discriminatory. These employees are not parties to any litigation.

But even some hotel managers who support the program say that State troopers have told them that their intent is to catch West Indians or Hispanic people, particularly South and Central Americans. Id.

Public Defender Experience: Well over 90% of those defendants represented by the Public defender in Hunterdon County who were arrested on I-78 are minority motorists. This stark fact continues the trend described in Soto and corroborates profiling as an agency-wide practice within this State. See exhibits in Ward motion.

THE CONTINUING EVIDENCE OF RACIAL PROFILING DOCUMENTED HEREIN PROVIDES A RIGHT FOR THESE DEFENDANTS TO OBTAIN DISCOVERY TO FULLY DEVELOP AND DOCUMENT THE PRACTICE AND PATTERN.

The Interim Report hypothesized that the New Jersey Supreme Court would hold that race may play no part in an officer's determination that a particular person is subject to seizure. This is consistent with the developing case law, including State v. Kuhn, 213 N.J.Super. 275 (App.Div. 1986), and State v. Patterson, 270 N.J.Super. 550 (L.Div. 1993). In this respect, the defense agrees with the Attorney General and urges such a finding on this Court. Both the Interim Report and the defense accept the exception that race plays a role only when it is part of the description of a specific wanted individual. Otherwise, it bespeaks a constitutionally impermissible consideration.

While the general rule is that the proper inquiry in a suppression hearing is whether the conduct of the officer was objectively reasonable, State v. Kennedy, 247 N.J.Super. 21 (App.Div. 1991),

different considerations are applicable where...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....[T]he 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.

Recognition of discriminatory enforcement as a basis of exclusion of evidence is consistent with our case law. An essential objective of the exclusionary rule is to deter unlawful police conduct. Delguidice v. New Jersey Racing Comm'n, 100 N.J. 79...(1985). The central purpose of the judge-made remedy is to deter future insolence in office by those charged with enforcement of the law. State v. Bisaccia, 58 N.J. 586, 591...(1971). The objective is to compel respect for the constitutional guaranty in the most effective way--removing the incentive to disregard it. Id., at 591-592...The rule also implicates concerns for 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.

These policies are well-served by exclusion of evidence obtained through selective enforcement based on racial criteria. State v. Kennedy, supra, at 29-30.

The Soto Court applied this language from Kennedy to suppress all evidence in Soto. The Attorney General appealed the decision in Soto yet withdrew his appeal of the entire issue, not only the finding of racial profiling, thus accepting the propriety of suppression as a remedy. There can be no other explanation for the abandonment of the appeal, as otherwise, the Attorney General would have failed in his duties as the State's highest law enforcement officer. ⁽¹⁰⁾

The Interim Report recognized the continuation of a long-standing pattern of racial profiling, which did not arise suddenly in the public or police consciousness. Col. Pagano admitted that he had heard complaints in the 1980's, but he declined to devote any State Police resources to determine the extent or existence of the problem. He responded to the WOR-TV series in 1989, not by conducting an investigation, but by telling the troops that he would take care of the complainers. He urged his troops to "keep the heat on."

The Soto litigation was pending for six years, and the suppression hearing consumed approximately seventy two trial days over six months. The State Police were represented by the Attorney General's office and sent a State Police detective as a daily observer to court. Judge Francis' decision was, and by necessity would have been, reviewed at the highest levels of the Department of Law and Public Safety and the State Police. Yet none of this caused the Attorneys General or the Superintendents of the State Police to conduct a single investigation or study to determine the extent of racial profiling. They chose, instead, to ignore the findings of a senior, respected Superior Court Judge.

Moreover, the Attorney General and the State Police were faced with more than the complaints of defendants and their counsel. From all over the State arose well documented evidence of profiling including the warning of their own troopers that such practices were rampant. But the Attorney General and the State Police leadership chose to respond to this information the same way they had in Soto: deny everything; investigate nothing.

On the Turnpike the State Police stopped African Americans in outrageous proportion, at 4.85 times the rate they stopped others. Rather than setting off alarm bells in the seat of power, these comparisons produced only a series of denials, the most outrageous of which was advanced as an explanation: The State Police stopped African American motorists at such a high rate, because they violated the motor vehicle laws more egregiously than others, causing their vehicles to stand out from the rest. This explanation was the centerpiece of the State's denial of the import of the evidence in Soto. It provided solace and support to the laissez faire attitude of the State Police administration and the Attorney General who has always been their ultimate superior.

After taking this position for years, the Attorney General admitted the fallacy of this position when describing his intention to have the State Police conduct their own traffic census and declining to conduct a census of those who were violating the motor vehicle laws:

While the law on this point seems clear, ⁽¹¹⁾

we are aware of no study that supports the hypothesis that minority motorists are more likely to violate the motor vehicle laws than non-minority motorists, or that violations committed by minority motorists tend to be more serious than violations committed by non-minority motorists. In the absence of any plausible reason to believe that race, ethnicity, or national origin is in any way correlated to driving behavior....Interim Report, at p. 111. ⁽¹²⁾

Troopers offered as witnesses by the State in Soto had likewise testified that there was no known or observed difference in driving behavior between the races. Yet these denials did not prevent the State from arguing that such a difference existed and explained the data. The State now concedes that it offered an implausible defense to the serious allegations made against the State Police. Offering an implausible defense, contrary to the testimony of its own witnesses, to prolong, promote and protect unconstitutional practices is unworthy of the government and is evidential of a deeply held consciousness of wrongdoing.

The decade plus failure of the highest levels of the State Police and Attorneys General to respond to regular, well-known complaints of racial profiling including a three years' attempt to ignore the well-reasoned and now accepted opinion of the Soto court represent the kind of institutional insolence that Kennedy held would require suppression. Having conceded the continuation of the practice and the appropriateness of the dismissal remedy in Soto, the State cannot deny the remedy upon production of evidence. Nor can the State on this record continue to protect racial discrimination by thwarting discovery of the practices.

POINT II

THE INFORMATION ABOUT RACIAL PROFILING SUBMITTED HEREIN FAR EXCEEDS THE "COLORABLE BASIS" THRESHOLD FOR ORDERING DISCOVERY ON A CLAIM OF DISCRIMINATORY ENFORCEMENT.

State v. Kennedy, supra, not only recognized that discriminatory enforcement of the laws to effectuate motor vehicle stops should result in the suppression of evidence, but it also established the New Jersey standard for the provision of discovery in such cases. The defense need only establish a "colorable basis" for such a claim defined as "some evidence tending to show the existence of the essential elements of the defense and that the documents in the government's possession would indeed be probative of these elements." State v. Kennedy, supra, at 32, citing United State s v. Berrios, 501 F.2d 1207, 1211-12 (2^nd Cir. 1974).

The Kennedy appellants produced only a survey of the racial makeup of the clients of the Warren County Public Defender office who had been stopped along Route 80. This survey was "marginally sufficient" to meet the standard. Id.

The information now before this Court is palpably much stronger than that which was found sufficient in Kennedy. The present evidence includes the record and findings in Soto, current, albeit incomplete, statistical analyses by the State Police's own supervisory agency and the concession by the chief law enforcement officer in the State that profiling exists and that it exists as a result of agency-wide conditions. Further, defendants Ward and Maiolino have set out statistical data which cumulatively demonstrate a more profound problem than that documented in Kennedy. This goes far past the frivolous State and "raise[s] a reasonable doubt" that the State Police are evenhandedly enforcing the motor vehicle laws and their prerogatives to search our citizens and their motor vehicles without considering race. Id. at 33. Thus, discovery must be ordered.

POINT III

THIS DISCOVERY IS NECESSARY FOR A FAIR ADJUDICATION OF THIS MATTER.

R. 3:13-3(b) requires the State to provide the defendant with eleven classes of material which are "relevant." There is no limitation that the material sought be solely relevant to guilt or innocence at an eventual trial. Had the Supreme Court intended to so limit the scope of mandatory discovery, it would clearly have done so, because it otherwise allows for discovery on all the issues that may impact upon a defendant's defense. The Supreme Court has held:

"The pretrial aspects of criminal prosecutions have become increasingly important in the modern administration of criminal justice.... As a result of these developments, proceedings in advance of trial are now of central importance in our system if criminal adjudication." State v. Williams, 93 N.J. 39, 53-54 (1983).

Suppression hearings are particularly important because they deal with rights of constitutional origin and because their results can be dispositive of the entire case. The discovery rules must, therefore, apply to suppression hearings and the issues that may be raised at these hearings.

Moreover, the issues raised in these motions go far beyond the limited consideration of the actions of a single officer in a single episode, but concern substantiated allegations of institutional lawlessness. This Court must be ever mindful that it was only the prior discovery orders in Soto that provided the foundation on which the Interim Report was built, and without which it would never have been written. Without the prior discovery orders in Soto the State Police would still be engaged in a secret, illegal scheme of racial discrimination. ⁽¹³⁾

The materials sought support the defendants' contentions, entitling them to suppression of evidence, rendering them a species of exculpatory evidence, which must be provided to defendants independent of any court rule. State v. Carter, 91 N.J. 86 (1982). Brady v. Maryland, 373 U.S. 83 (1963).

Moreover, the New Jersey Constitution (1947) charges the courts with the incidental powers to make rules and take actions necessary to properly administer an action to further the purpose of trial, the exposure of all relevant and material facts to the fact finder and to promote fundamental fairness. State in re W.C., 85 N.J. 218 (1981). State v. McCrary, 97 N.J. 132 (1984). The State frequently seeks the exercise of this power to aid in its prosecutions in New Jersey. See: State v. Carr, 124 N.J. Super. 114 (L. Div. 1973) (handwriting exemplars); State v. King, 44 N.J. 346 (1965) (voice prints and physical examinations); State v. Blair, 45 N.J. 43 (1965) (blood tests); State v. Burke, 172 N.J. Super. 555 (App. Div. 1980) (hair, blood and saliva); R. 3:5A, where the Supreme Court judicially established a procedure for the State to gain evidence. Our courts have been no less aggressive in obtaining evidence for prosecutions in other jurisdictions. In re Morganthau, 188 N.J. Super. 303 (App. Div. 1982), cert. den. 93 N.J. 315 (1983). See also: State v. Kennedy, supra.

The State has often sought, and the courts have frequently ordered, discovery from third parties who are not criminal suspects, it only being required that one be able to find relevant evidence of a penal violation by another. In re Morganthau, supra.

"[D]iscovery must be a two-way street." Wardius v. Oregon, 412 U.S. 470, 475 (1973). While there may not be a constitutional right to discovery, once a State allows it, the defense must obtain at least as much as the State .

Recognizing this, our courts now grant defendants the use of their orders in aid of discovery to: conduct pretrial lineups, which inconveniences people beyond those involved in the prosecution itself, In re W.C., supra; conduct psychiatric examinations of State 's witnesses by defendant's retained psychiatrist, State v. Butler, 27 N.J. 560 (1958); inspect grand jury testimony before allowed by rule, State v. Moffa, 36 N.J. 219 (1961); inspect expert reports before allowed by rule, State v. Cook, 43 N.J. 560 (1965); be advised of offers of immunity and payment of monies to State 's witnesses prior to trial. State v. Satkin, 127 N.J. Super. 306 (App. Div. 1974).

"The mere fact that a particular disclosure is not specifically mentioned in the rules should not prevent a judge from granting relief to defendant and compelling disclosure to be made." State v. Satkin, supra, at 310, citing as authority State v. Cook, supra. A central principle underlying these cases has been the trial court's duty to discover the truth. "The philosophy underlying this discovery is that 'the interests of truth and justice are best served by broad mutual discovery before trial,'" State v. Satkin, supra, at 309, citing State v. Cook, supra. "This court's policy concerning pretrial discovery has been to encourage the presentation of all relevant material to the jury as an aid in the establishment of truth through the judicial process. The pretrial discovery practice promotes the quest for truth." State In the Interest of W.C., supra, at 221.

The Interim Report is evidential as an admission against interest in many of its core factual concessions. See; Point I, supra. However, the defense cannot be held to accept its findings, as it was prepared by its party opponent which has vigorously defended the practices it now admits, and which has a substantial institutional need to understate the extent of the problem. Wholesale admissions could inundate the Division of Criminal Justice with countless hundreds, if not thousands, of applications to be relieved of convictions caused by racial profiling, and the Division of Law with even greater numbers of civil complaints arising from such stops. Thus, the Attorney General cannot be expected to give full exposition to the extent of the problem, requiring a full factual investigation by an entity representing clients with a genuine incentive to fully investigate and litigate the issues.

Most of that which is sought is of the same species of materials ordered to be provided in Soto. It is generally the raw data and analyses of the same that support or undermine the claims of racial profiling. Much of it demonstrates what the State Police and Attorney General hierarchies knew and when they knew it. This material is highly evidentiary in demonstrating institutional direction, tolerance, recklessness, and neglect which support the need for the remedy. The following discussion applies to some of the requests.

Misreporting Race: This information is crucial to correct the currently distorted statistics and to identify troopers who engage in misreporting, as a trooper would not engage in such misconduct unless he was engaging in racially inappropriate conduct. It would, thus, provide evidence to be used in any individual suppression hearings that might be necessitated to prove that a particular trooper engaged in such a practice, whether or not sanctioned by the State Police hierarchy.

Litigation: These matters involve some allegations of racial profiling, which would provide the defense with information and witnesses to prove the practice and its knowledge by the State Police hierarchy. The Attorney General is counsel in these matters and has had constant access to depositions, interrogatories, etc.

The Smith Report: This was the kind of smoking gun for which the defense searched in Soto, which the State denied existed, notwithstanding the very progress of the document up the chain of command while Soto was being litigated. It is direct evidence and identifies witnesses on the issue of racial profiling and highlights the breadth of supervisory knowledge of the practice.

The State Police Gag Rule: Those who have suffered insult and injury at the hands of the police and those who prosecute for such violations have often decried the "blue wall of silence", the unwritten police code that prohibits one police officer from testifying against another. Such practices have universally been viewed as antithetical to the full and fair adjudication of cases. In the face of common condemnation of these policies, the New Jersey State Police have a written and publicly acknowledged policy that prohibits its members from speaking out. The justification for the policy given by Mr. Cole was that should any member speak out, he would unfairly attack superior officers, which presupposes that any time a member speaks out on senior officers the very act of criticism is unfair. The only way a member can speak out is to obtain permission in advance from the very administration he wishes to criticize. The unavailability of such preapproval is preposterous as the rule itself.

The rule not only chills free speech rights of officers but it deprives the public of crucial knowledge about the scope of State Police misconduct. As it affects this application, such regulations chill the ability of lawyers litigating claims against the State Police from identifying and interviewing witnesses.

More importantly these practices deprive the defense of the right to investigate and present witnesses in contravention to clearly established case law as a violation of defendants' right to due process and assistance of counsel. "[W]itnesses are not the private property of any party to litigation and access to interview them should not be frustrated." State v. Roszkowski, 129 N.J. Super. 315, 317-318 (App. Div.), certif. denied, 66 N.J. 325 (1974). "[A]bsent a privilege, no party can properly restrict access to a witness." Dinter v. Sears, Roebuck & Co., 252 N.J. Super. 84, 96 (App. Div. 1991), citing Stempler v. Speidel, 100 N.J. 368, 381 (1984). "Both sides have an equal right to interview witnesses since they are not parties, are not partisan and do not belong to either side." State v. Boiardo, 172 N.J. Super. 528, 530 (L.Div. 1980). Additionally, RPC 3.4(f) makes it unethical for a lawyer to request a witness other than a client "to refrain from voluntarily giving relevant information to another party."

In fact, ordering the State Police to scrap the rule here is not a discovery order as much as it is a vindication of fair trial rights. The jurisdiction of the Court here arises from its inherent right to enter orders ancillary to its jurisdiction and to the line of cases in W.C., supra. Moreover, since this application implicates not only the members' free speech rights, but these defendants'fair trial rights, this Court has a far greater constitutional imperative to relieve the members of this rule, at least when speaking to counsel for these defendants. It would be a great affront to the dignity of the Judiciary for the Attorney General to deprive these defendants of a fair hearing and reasonable investigation by reason of a disciplinary rule designed to protect the State Police hierarchy from criticism.

The Hotel-Motel Program: Because this program is not directly associated with State Police activities on I-78, the Turnpike or other highways it corroborates the fact of racial profiling as an entrenched protocol and culture within the State Police organization.

The program implicates the reasons and rationalizations given by State Police for their intrusions into citizens' lives. Informers are told that their names and roles will never be disclosed. Thus, the State Police must justify their stops, both in their reports and in their testimony, based on reasons different from what they relied on in making the stops. The program essentially requires participating troopers making stops based on the information allegedly obtained to author misleading reports and testify in a deceptive fashion at suppression hearings.

Offering of $1,000.00 rewards to hotel and motel employees provides them with a powerful incentive to provide tips. More troubling, in light of the admitted actions and intent of the State Police to keep the involvement of these employees secret, is the fact that if the $1000.00 may also reward silence or secrecy. In this respect it is unlawful witness tampering. See N.J.S.A. 2C: 28-5.

Where, as here, it is alleged that the State Police focus the employees attention on Hispanics, West Indians and the like, they have brought race prominently into the mix of factors that are being considered. If, as the Attorney General concedes, race may play no role in a trooper's decision to make a stop, likewise, it may play no role in the actions of his agents, the employees enlisted by the State Police.

In that the State Police instruct their informers to consider race, it would further corroborate the pervasiveness of the practice and its knowledge and acceptance by the State Police hierarchy.

POINT IV

THE BALANCE OF THE RELIEF IS NECESSARY TO PRESERVE INFORMATION AND EVIDENCE AND TO ALLOW THE DEFENSE TO FULLY INVESTIGATE THE MATTER BEFORE DEFENDANTS ARE FORCED TO MOTION OR TRIAL.

The defense is aware that the State Police maintain a document destruction policy that could result in necessary evidence being destroyed before it is made available in discovery or even before its existence or relevance is known. The Court must, therefore, order preservation of all materials described.

CONCLUSION

Wherefore, it is respectfully submitted that the Court ought order the relief sought.

Respectfully submitted,

William H. Buckman

Attorney for Ramona Maiolino

Dated: 7/1/99

WILLIAM H. BUCKMAN

Attorney at Law

714 E. Main Street, Suite 1B

Moorestown, NJ 08057

(609)608-9797

Attorney for Defendant, Ramona Maiolino

STATE OF NEW JERSEY, : SUPERIOR COURT OF NEW JERSEY

: HUNTERDON COUNTY

Plaintiff, : LAW DIVISION - CRIMINAL

:

v. :

: INDICTMENT NO. 99-00-00001-I

RAMONA MAIOLINO, :

: MOTION TO OBTAIN

Defendant. : DISCOVERY REGARDING

: STATE POLICE DATA ON RACIAL

: PATTERNS OF VEHICLE STOPS AND

: SEARCHES BY THE NEW JERSEY STATE : POLICE ON I-78

:

: AND

:

: FOR FURTHER RELIEF

:

TO: [appropriate counsel]

PLEASE TAKE NOTICE that on July 23, 1999 or as soon there after as counsel may be heard the undesigned will apply to the Superior Court of New Jersey , Law Division-Criminal, for an Order directing the State of New Jersey and/ or Division of State Police to release William H. Buckman, attorney for defendant Ramona Maiolino, certain data now existing in the files of the Records and Identification Section of the Division of State Police, Attorney General of New Jersey, and/or Hunterdon County Prosecutor. This data is relevant and necessary in support of defendant showing that a clear pattern and/or practice of racially selective vehicle stops and searches exists on New Jersey roadways, patrolled by the New Jersey State Police, specifically I-78, in violation of the defendants constitutionally protected rights to freedom from racial discrimination and freedom to travel.

TAKE FURTHER NOTICE, that at the above date and time the defendant, Ramona Maiolino will also move to join in and/or consolidate of the "Motion to Obtain Additional Discovery Particularly Existing State Police Data Regarding Racial Patterns of Vehicles Stopped and Searches on I-78 Patrolled by Troopers Assigned to Perryville Station, RD3 Box 173, Hampton, NJ Where Access Records would show such patterns" filed on behalf of Karim Ward under indictment No. 99-04-00-86-I.

In support of this Motion for Discovery and Motion to Compel, defendant will rely on the Certifications in Support of this motion, Brief, arguments of counsel as well as the materials submitted on behalf of Karim Ward in a similar motion under indictment No. 99-04-00-86-I.

A form of order is attached to these materials.

Specifically with respect to this motion, the defense will seek an Order requiring the provision of the following:

A.

1. With regard to the Interim Report of the State Police Review Team Regarding Allegations of Racial Profiling (April 20, 1999) prepared by or for First Assistant Attorney General Paul Zoubek described in the media on or about April 20, 1999 concerning the practice of racial profiling by members of the New Jersey State Police (hereinafter the "interim report"), all descriptions of missing data, all adjustments, analyses, allowances, conclusions and other actions taken with regard to missing data in the universe of all stops and other actions studied by those who participated in the data analysis and the preparation of the report.

2. All statistical, factual and other analyses conducted by or for the New Jersey State Police and/or the Department of Law and Public Safety and/or others as a result of allegations of racial profiling by the New Jersey State Police and/or as part of an investigation of potential racial profiling by the New Jersey State Police, whether the same were utilized in the interim report or not;

3. All raw data, compiled data, corrected data and follow-up investigations collected and/or created by or for the New Jersey State Police and/or the Department of Law and Public Safety and/or others as a result of allegations of racial profiling by the New Jersey State Police and/or as part of an investigation of potential racial profiling by the New Jersey State Police, whether the same were utilized in the interim report or not (This includes data summaries prepared by or for the state police utilized in the preparation of the report and all supporting data and/or materials in the hands of the state police and others.)

4. All raw data, complied data, corrected data and follow-up investigations collected and/or created by or for the New Jersey State Police and/or the Department of Law and Public Safety and/or others as a result of allegations of racial profiling by the New Jersey State Police and/or as part of an investigation of potential racial profiling by the New Jersey State Police, whether the same were utilized in the interim report or not, as part of a subinvestigation as to whether or not the New Jersey State Police personnel engaged in a practice or policy of misrepresenting the race of individuals stopped and/or searched, including, but not limited to, such information and/or materials that were the basis of the statement made to the media that 12 troopers were engaged in such a practice.

5. All drafts of the "interim report."

6. All drafts (preliminary, intermediate and final) of any additional, supplemental, final or related reports, analyses, memoranda, or writings of any kind or nature whatsoever having to do with allegations of or an investigation of racial profiling by the New Jersey State Police prepared by or for the Department of Law and Public Safety and/or the New Jersey State Police having to do with potential racial profiling.

7. All materials as described in Paragraphs 2 and 3 related in any way to the drafts described in Paragraph 6.

8. All drafts (preliminary, intermediate and final) of any additional, supplemental, final or related reports, analyses, memoranda or writings of any kind or nature whatsoever having to do with any investigation and/or analysis of whether members of the New Jersey State Police accurately report the races of the individuals they stop and/or search.

9. All materials as described in Paragraphs 2 and 3 relevant to the demand in Paragraph 8.

10. All raw data, compiled data, corrected data and follow-up investigations collected and/or created by or for the New Jersey State Police and/or the Department of Law and Public Safety and/or others as a result of allegations of racial profiling by the New Jersey State Police and/or as part of an investigation of potential racial profiling by the New Jersey State Police that played any part in the state's obtaining an indictment against Troopers Hogan and Kenna for intentionally misreporting the race of individuals they stopped and/or searched.

11. The identities and assignments of all troopers identified by the Department of Law and Public Safety and/or the New Jersey State Police as misreporting the racial identifiers of those they stopped and/or searched.

12. All materials as described in Paragraphs 2 and 3 above related in any way to the demand in Paragraph 11, all reports and other documents generated, and the names and assignments of those who have knowledge of to this information.

13. The identities of all troopers who have ever been investigated or whose work has been reviewed with regard to whether they accurately reported the racial identifiers of those they stopped and/or searched.

14. All materials as described in Paragraphs 2 and 3 above related in any way to the demand in Paragraph 13.

15. The identities of all troopers who are currently being investigated or whose work is being reviewed with regard to whether they accurately reported the racial identifiers of those they stopped and/or searched.

16. All materials as described in Paragraphs 2 and 3 above related in any way to the demand in Paragraph 15.

17. All other reports, memoranda, analyses and writings of every kind or nature whatsoever in the hands of the New Jersey State Police and/or the Department of Law and Public Safety, whenever prepared, concerning and/or in response to allegations of racial profiling by members of the New Jersey State Police.

18. All materials as described in Paragraphs 2 and 3 above related in any way to the demand in Paragraph 11.

19. With regard to the study of the population of New Jersey Turnpike travelers being undertaken pursuant to the interim report, all materials having to do with the study design and implementation, all raw data sheets, the identities of each individual involved in the design, implementation, conduct and analysis of the study including their roles therein, and data, all computations, calculations, interpretations, analyses, adjustments and conclusions.

20. All directives, Standard Operating Procedures, memoranda, and writings of every kind or nature whatsoever prepared by or for the Department of Law and Public Safety and/or the New Jersey State Police resulting from and/or related to the interim report and/or any of its conclusions and/or proposals and/or the implementation of the same directed to members of the New Jersey State Police and/or their supervisors.

B. MATERIALS RELEVANT TO TROOP "B" FOR THE PAST 5 YEARS

21. All records and source materials as requested above and in addition thereto all Radio Logs, Patrol Activity Logs, traffic summonses (front and back), Consent to Search Forms, Consent to Search Data Forms, Arrest Reports, Operation Reports, warnings and all other records, memoranda, writings and recordations made by or for members of New Jersey State Police Troop B which include in any portion thereof recordations of contact with the public during the performance of their duties. This demand applies to all materials now in existence or to be created.

22. All records and source materials as requested above and in addition thereto all Radio Logs, Patrol Activity Logs, traffic summonses (front and back), Consent to Search Forms, Consent to Search Data Forms, Arrest Reports, Operation Reports, warnings and all other records, memoranda, writings and recordations made by Troopers I.C. Pantuso and/or Trooper Tietjen which include in any portion thereof recordations of contact with the public during the performance of their duties. This demand applies to all materials now in existence or to be created.

23. Police logs, radio transmissions and reports, daily logs of all stops during the month of October 1998;

24. Individual statistics on the road patrol duty troopers assigned to Perryville Station who have made I-78 stops within the last year, listing all stops, reasons for the stops, whether a consent to search was requested, charges that resulted, racial make up of the occupants of the vehicles stopped, whether they were in state or out-of-state license plates, and whether a spot lamp was used by the troopers before the stop was made;

25. Materials of all training procedures, including but not limited to video tape sessions, training manuals, etc.;

26. All drug interdiction training materials used or provided to any member of the State Police assigned to or working from Perryville Station.

27. Names and employment addressees of all instructors of the New Jersey State Troopers who have been assigned in the last five years.

28. Any and all documents of any nature in the possession, custody or control of NJ State Police, their agents and/or attorneys (whether or not authored or prepared by said NJ State Police) reflecting, recording, analyzing and/or memorializing the race, color, ethnicity and/or national origins of persons stopped, ticketed, and/or arrested while operating or occupying a motor vehicle on I-78 during the period January 1, 1995 through the present.

29. Any and all documents of any nature in the possession, custody or control of the NJ State Police, their agents or attorneys (whether or not authored by NJ State Police) reflecting, recording, analyzing and/or memorializing the race, color, ethnicity and/or national origins of persons stopped, ticketed, and/or arrested by Troopers I.C. Pantuso and/or Tietjen while said persons were operating or occupying a motor vehicle on I-78 during the period January 1, 1995 through the present.

30. Any and all documents of any nature in the possession, custody or control of NJ State Police, their agents or attorneys (whether or not authored by NJ State Police) reflecting, recording and/or memorializing the names, addresses, telephone numbers, and/or any other identifying information of or concerning persons stopped, ticketed, and/or arrested by law enforcement personnel on I-78 during the period January 1, 1995 through the present.

31. Any and all documents of any nature reflecting, recording and/or memorializing the names, addresses, telephone numbers, and/or any other identifying information of or concerning persons stopped, ticketed and/or arrested by Troopers Pantuso and/or Tietjen on I-78 during the period January 1, 1995 through the present.

32. Any and all documents of any nature in the possession, custody or control of NJ State Police, their agents or attorneys (whether or not authored or prepared by said NJ State Police) that have been or will be produced by the NJ State Police, their agents or attorneys for inspection or review by the United States Department of Justice or any Division thereof in connection with any inquiry or investigation by said Department or Division thereof, of, about or concerning the use of race, color, ethnicity, or national origin as a criterion by law enforcement personnel in the course of stopping vehicles on I-78. This request for production of documents includes, but is not limited to, all documents produced by NJ State Police, their agents or attorneys in response to the Justice Department inquiry or investigation identified in a New York Times article by David Kociewienski entitled "Racial Profiling by Troopers is Subject of U.S. Inquiry," published on February 18, 1999 at Pages B1 and B9.

33. Any and all documents of any nature in the possession, custody or control of the NJ State Police, their agents and/or attorneys (whether or not authored by or prepared by the NJ State Police) reflecting, recording, analyzing or memorializing any initiatives or efforts undertaken by the NJ State Police or their agents or attorneys at any time to investigate and/or remediate the practice or alleged practice of racial profiling or the use of race, color, ethnicity, or national origin as a criterion by law enforcement personnel during vehicular stops on I-78 including, but not limited to, investigations, reports or initiatives disclosed by NJ State Police to the New Jersey Star-Ledger at any time.

34. Any and all documents of any nature in the possession, custody or control of NJ State Police, their agents and/or attorneys (whether or not authored or prepared by said NJ State Police) reflecting, recording, analyzing and/or memorializing any and all complaints of any nature, formal or informal, oral or written, whether lodged internally or administratively, during the period January 1, 1995 through the present, received by or known by the NJ State Police alleging that persons were stopped, ticketed and/or arrested on I-78 because of their race, color, ethnicity, or national origin. Further provide as to each such complaint, all documents reflecting NJ State Police' responses thereto and/or reflecting any steps taken by NJ State Police as to each such complaint to investigate and/or remediate.

35. Any and all documents of any nature in the possession, custody or control of NJ State Police, their agents and/or attorneys (whether or not authored or prepared by said NJ State Police) reflecting, recording, analyzing and/or memorializing any disciplinary steps taken by any of NJ State Police' agents or employers because such persons engaged in, promoted, condoned or ratified the use of race, color, ethnicity, or national origin as criteria in stopping persons operating or occupying motor vehicles on I-78.

36. Produce a complete copy of any records in possession of New Jersey State Police or any of the defendants relating to Ramona Maiolino.

37. Produce a copy of the radio log or radio dispatch log recording any conversations or transmissions between Troopers Pantuso and/or Tietjen and their headquarters or dispatch for October 15, 1998 from 12:00 a.m. until the end of NJ State Police' shift that date.

38. Produce a copies of the patrol log of Troopers Pantuso and/or Tietjen for October 14, 1998 to October 17, 1998.

39. Produce a copy of any report, memorandum, document or investigation of any kind prepared by any member of the State Police concerning the stop on I-78 on or about October 15, 1998.

40. Produce a copy of the front and back of all traffic summons's issued by Troopers Pantuso and/or Tietjen from the first date of their assignment to duty on I-78 through the present.

41. Produce a copy of all traffic warnings's issued by Troopers Pantuso and/or Tietjen from the first date of their assignment to duty on I-78 through the present.

42. Produce a copy of any station log, sign in sheet or any other document, item or record evidencing the receipt of plaintiffs into the Perryville station or barracks on or about October 15, 1998.

43. Provide copies from the time period January 1, 1995 to the present of the New Jersey State Police monthly patrol activity log (87-56-SP) for all stations or barracks within Troop B of the New Jersey State Police. This document may also be known as SP 180(rev 10/87) SOP C22.

44. Provide a copy of any audio taped communications between Troopers Pantuso and/or Tietjen and any other officers who backed them up in the stop of plaintiffs on or about 1/16/96 as well as audio recordings of conversations and or communications between Troopers Pantuso and/or Tietjen and dispatch and or the station on October 15, 1998 from 12:00 a.m. to 5:00 a.m. the next morning.

45. For the time period January 1, 1995 to the present provide copies of all training schedules, itineraries, or syllabi prepared in connection with training provided by the New Jersey State Police to any of its members.

46. For the time period from January 1, 1995 to The present, provide copies of all videos or video presentations employed by the New Jersey State Police for viewing by New Jersey State Police members for whatever reason including training.

47. For the time period January 1, 1995 to the present, provide copies of all patrol logs of New Jersey State Police personnel engaged in operations on I-78.

48. For the time period January 1, 1995 to the present, provide copies of all radio dispatch logs for all barracks operating on I-78.

49. For the time period January 1, 1995 to the present provide copies of all warnings issued by members of the New Jersey State Police to persons stopped on I-78.

50. For the time period January 1, 1995 to the present produce copies of all training materials, schedules, syllabi, outlines or other materials from any training provided by the New Jersey State Police or any law enforcement organization to any of the individually named Troopers here.

51. Produce copies of all named Troopers here trooper/coach checklist and evaluations forms.

52. Produce copies of all materials received by Troopers here for training received from or activities conducted with the Drug Interdiction Unit "DITU"). Include when, where and whom provided DITU training to Troopers here and copies of materials received from the DITU and copies of any evaluation forms or checklists received as a result of DITU training.

53. Produce copies of all materials received by any of the individually named Troopers here for training received from or activities conducted with the Patrol Drug Response Unit ("PRDU"). Include when, where and who provided this training, copies of any written materials provided including evaluation forms or checklists of performance during the training.

54. Produce copies of all training materials any of the individually named Troopers here received concerning "Jamaican Posses" or "Jamaican Gangs". Include when, where and who provided this training; copies of all written materials provided during the training including evaluation forms or checklists recording performance during the training.

55. Produce copies of all materials received by any of the individually named Troopers here received concerning gangs generally. Include when, where and who provided the training; copies of all written materials provided during the training including copies of evaluation forms and/or checklists recording performance during the training.

56. Produce copies of any report resulting from any investigation made by the Superintendent of NJ State Police to investigate, substantiate or dispel the veracity of allegations that the New Jersey State Police are engaged in the practice described as "racial profiling" on I-78 or elsewhere.

57. Produce copies of any and all investigations, reports or studies commissioned by anyone within the New Jersey State Police for the time period January 1, 1995 to the present concerning allegations of racial profiling within the state of New Jersey by the New Jersey State Police.

58. Produce copies of any and all studies including any memos, reports, letters or documents of any kind which NJ State Police, its Superintendents or the Commander of Troop B of the New Jersey State Police commissioned regarding statistical studies of the activities of the New Jersey State Police to determine if allegations of racial profiling are accurate.

59. Produce copies of any and all studies including any memos, reports, letters or documents of any kind prepared or created during the time period January 1, 1995 to the present regarding or relating to statistical analysis of the activities of the New Jersey State Police to determine the percentages or rates at which Caucasians, African Americans, Hispanics or other minorities are arrested on I-78 and the New Jersey Turnpike.

60. Produce copies of any and all studies including any memos, reports, letters or documents of any kind prepared or created during the time period January 1, 1995 to the present regarding or relating to statistical analysis of the activities of the New Jersey State Police to determine the percentages or rates at which Caucasians, African Americans, Hispanics or other minorities are stopped on I-78.

61. Produce copies of any and all reports or memorandums prepared by any person who has provided information to anyone within the New Jersey State Police concerning the allegations, proofs, or evidence presented in the litigation known as State v. Soto, et al, (Turnpike Cases), Docket No. A-5334-95T3 (Appellate Division), Indictment No. 492-7-88 (Gloucester County, Superior Court Trial level).

62. Produce copies of any and all materials presented at training or retraining of any members of the New Jersey State Police ordered or commissioned in whole or in part as a result of the litigation known as State v. Soto, et al.

63. For the period of time period January 1, 1995 to the present any compilation of statistics of stops, searches or arrests occurring on I-78 that the New Jersey State Police or any other government agency has produced for any purpose.

64. Produce copies of any and all materials presented at training or retraining of any members of the New Jersey State Police ordered or commissioned by anyone within the New Jersey State Police or the Office of the Attorney General for the time period January 1, 1995 to the present

65. Produce copies of written procedures protocols, directives or orders for State Police officers to follow when they stop, search or otherwise detain a motorist.

66. Produce copies of written procedures, protocols, memorandums, orders directives or documents of any kind which direct or indicate the circumstances when State Police officers or the Division of the State Police are required to report racial and or ethnic information.

67. For the time period January 1, 1995 to the present, all reports that have been compiled by the State Police, either by barracks or as a whole, not just limited to the Turnpike, that will give any information about those motorists stopped, searched, given warnings, ticketed or arrested.

68. For the time period April 1, 1995 to the present, produce copies of any information or discovery provided to any plaintiff(s) in a civil suit against the New Jersey State Police or any member thereof claiming in whole or part a violation of rights because plaintiff(s) were stopped, arrested or searched because of race.

69. For the time period April 1, 1995 to the present, produce copies of any information or discovery provided to any defendant(s) in a criminal matter who have claimed that their stop, search or arrest by a member of the New Jersey State Police was racially motivated or the result of a profile which included race as a factor to consider in initiating a stop.

70. For the time period January 1, 1985 to the present provide copies of all documents or materials of any kind reflecting profiles employed by the New Jersey State Police to identify drug users, distributors or traffickers.

71. For the time period January 1, 1985 to the present provide copies of all documents or materials of any kind reflecting the participation of the New Jersey State Police in the construction of profiles to be used by any law enforcement organization to identify drug users, distributors or traffickers.

72. The "special report" prepared by Sgt. James Smith as to racial profiling submitted approximately January 1996, all writings of any kind or nature whatsoever prepared by or for Lt. Bernard Gilbert of the Moorestown Station and any other supervisory an/or analytical personnel of the New Jersey State Police and any other employees of the Department of Law and Public Safety in receiving, reviewing, analyzing, responding to, critiquing, or in any reflecting of the receipt, review or reaction to the report, and a list of all individuals who saw the report.

73. The names, addresses, assignments, and designations or counsel (for those who have retained counsel) of every State Police member who has made an allegation of racial profiling about other members.

74. For each individual identified pursuant to paragraph 73, copies of every document prepared by or for that individual summarizing and or describing racial profiling, and copies of each and every document prepared by or for the New Jersey State Police and/or the Department of Law and Public Safety analyzing, evaluating, responding to, reviewing, or in any other way dealing with the allegations made by the member.

75. Copies of all deposition transcripts and all discovery in each matter in litigation now or in the seven years where allegations of racial profiling have been made by one or more members of the New Jersey State Police.

76. With regard to the Hotel-Motel Program of the New Jersey State Police, a program supervised by New Jersey State Police Lt. Bruce Geleta, which enlists the assistance of hotel and motel employees for tips and access to records in order to target suspects for investigation and/or stop and search (hereinafter designated the "Program"), copies of all materials as herein above described as to the goals, organization, procedures, training, supervision, assignment of officers; copies of all materials disseminated to or displayed to hotel and motel management and/or employees as part of the State Police's attempts to enlist them in the program, to train them, to enlist their aid, to maintain their assistance and cooperation; all course syllabuses and other instructional outlines and guidelines utilized in the State Police's efforts at enlisting, instructing, training, supervising, and communicating with the employees; all materials describing in any way the policies, techniques, and methods for enlisting, instructing, supervising, and communicating with management and employees; all forms and materials, as well as all procedures for hotel and motel employees to communicate information to the State Police; a summary of each and every fact or type of observation about which the employees were instructed to be aware and the purported significance of each, both as explained to the employees and as maintained by the State Police; all materials explaining, summarizing, evaluating, reviewing, or in any other way reflecting on the operation of the program and evaluations of its effectiveness.

PLEASE TAKE FURTHER NOTICE THAT the undersigned will apply for an order directing the Department of Law and Public Safety and/or the NewJersey State Police to abrogate their current document destruction policy and preserve until further order of this Court all records and source materials as requested above and in addition thereto all Radio Logs, Patrol Activity Logs, traffic summonses (front and back), Consent to Search Forms, Consent to Search Data Forms, Arrest Reports, Operation Reports, and all other records, memoranda, writings, and recordations made by or for members of Troop B at the Perryville Stations which include in any portion thereof recordations of contact with the public during the performance of their duties. This demand applies to all materials now in existence or to be created.

PLEASE TAKE FURTHER NOTICE THAT the defense will apply for an order directing the Department of Law and Public Safety and the New Jersey State Police to abrogate their rules, procedures, and other requirements that prohibit members of the New Jersey State Police from speaking with others about New Jersey State Police activities, actions, policies, and the like so that the defense may interview members with information about racial profiling, and so that members may truthfully answer questions without fear of discipline or reprisal.

PLEASE TAKE FURTHER NOTICE THAT the defense will apply for an order adjourning all further actions in the above matters until the happening of the last of the following actions:

A. The completion by the Attorney General of the case-by-case review of searches and consent searches to undertaken pursuant to the Interim Report;

B. The receipt of all discovery requested herin and as may hereafter become appropriate and the opportunity for a full and complete analysis of the same.

In support of this Motion for Discovery and Further Relief, defendant will rely on the Certifications in Support of this motion, Brief, arguments of counsel as well as the materials submitted on behalf of Karim Ward in a similar motion under indictment No. 99-04-00-86-I.

A form of order is attached to these materials.

William H. Buckman

Attorney for defendant, Ramona Maiolino

Dated: June 30, 1999

WILLIAM H. BUCKMAN

Attorney at Law

714 E. Main Street, Suite 1B

Moorestown, NJ 08057

(609)608-9797

Attorney for defendant,

STATE OF NEW JERSEY, : TOWNSHIP OF MT. LAUREL

: MUNICIPAL COURT

Plaintiff, :

: SUMMONS NO. SPY532247

v. :

: SUPPLEMENTAL MOTION TO SUPPRESS

, : PURSUANT TO 14th AMENDMENT

:

Defendant. :

TO: [appropriate counsel]

PLEASE TAKE NOTICE that on a date and time set by the Clerk of the above court or as soon thereafter as counsel may be heard, the undersigned, William H. Buckman, attorney for defendant Kane Bragg, will move before the Mt. Laurel Township Municipal Court, Burlington County, for an Order suppressing all items seized and/or any information obtained by the New Jersey State Police as a result of the warrantless stop and search in this matter because it represents a pattern and practice by New Jersey State Police of targeting for stop black patrons on the New Jersey Turnpike. Defendant will submit that the stopping of motor vehicles occupied by black patrons on the New Jersey Turnpike constitutes a clear pattern and practice by the New Jersey State Police in violation of defendant's constitutionally protected rights to be free from racial discrimination and freedom of travel, and freedom from selective enforcement of law.

As a prima facie showing in support of this motion, the defense will rely on the Interim Report of the State Police Review Team Regarding Allegations of Racial Profiling (April 20, 1999) which corroborates an admission by the New Jersey Attorney General that racially based profiling and selective enforcement exists on the New Jersey Turnpike, as well as the other Certifications and exhibits submitted herewith.

PLEASE TAKE FURTHER NOTICE that the defense intends that this motion to suppress be in addition to and supplement the motion to suppress previously filed and on additional and on other grounds in this same case.

William H. Buckman

Attorney for defendant,

Dated: April 30, 1999

WILLIAM H. BUCKMAN

Attorney at Law

714 E. Main Street, Suite 1B

Moorestown, NJ 08057

(609)608-9797

Attorney for Defendant, Ramona Maiolino

STATE OF NEW JERSEY, : SUPERIOR COURT OF NEW JERSEY

: HUNTERDON COUNTY

Plaintiff, : LAW DIVISION - CRIMINAL

:

v. :

: INDICTMENT NO. 99-00-00001-I

RAMONA MAIOLINO, :

: CERTIFICATION OF

Defendant. JOHN LAMBERTH, Ph. D.

John Lamberth certifies as follows:

1. I am the immediate past Chairman of the Department of Psychology and the past Director of the Division of Social Psychology at Temple University, in Philadelphia. I have been on the Temple faculty in the Department of Psychology since 1973. I have had extensive professional and academic experience with the design and use of statistically valid surveys, random sampling techniques, and the analysis of statistically-based measures of significance derived from survey, census, and sample data. I have been qualified as an expert witness in statistics , surveying, and social psychology in the United States District Courts for New Jersey and Virginia, and in state courts in New Jersey, Pennsylvania, and Virginia. A copy of my Curriculum Vitae is attached.

2. I make this report in connection with the case New Jersey v. Mailino. Counsel for Ms. Mailino has retained me to design and conduct a study and analysis of the incidence and significance of tickets issued by two police officers, Tietjen and Pantuso, along the I-78 corridor in Hunterdon County, New Jersey. The overall goal of the study was to determine if the tickets issued by these two New Jersey State Troopers were issued disproportionately to Hispanics. The information that I have been provided by Counsel is: The list of tickets issued by Officer Tietjen on I-78 in Hunterdon County between April, 1998 and December, 1998. This list consists of a total of 315 tickets. The list of tickets issued by Officer Pantuso on I-78 in Hunterdon County between April, 1998 and December, 1998. This list consists of a list of 147 tickets.

3. I compared the surnames of these 462 tickets to the list of Hispanic Surnames that was developed by Word and Perkins of the United States Bureau of Census to determine how many of the tickets were issued to motorists who had Hispanic surnames. Of the 462 names, 72 had Hispanic Surnames (falling into the Heavily, Generally, Moderately or Occasionally Hispanic category). There were other names that fell into the rarely Hispanic category that may or may not be Hispanic. I did not clarify these names as Hispanic. This means that 15.6% of the tickets issued by these two troopers that I considered were to motorists with Hispanic surnames.

4. I designed and assisted in the implementation of a "Violators Survey" on I-78 in Hunterdon County. An observer (Mr. Rivera) rode in a car at a constant 4 miles an hour above the speed limit (69 miles and hour) from Exit 6 to Exit 26 on I-78. He was instructed to count the cars that passed him and classify them as violators (i.e., speeders) and to count the cars that he passed and count them as non-violators unless they were violating another traffic law. He was also instructed to classify the driver of the car as to race and whether the driver was Hispanic.

5. The survey was conducted over a two day period, July 22 and 23, 1999. I divided the 48 hour period from July 22 at 6:00 A.M. until July 24 at 6:00 A.M. into 16 three hour periods. I randomly selected 6 three hour periods to be surveyed, and randomly selected the direction the observer was to drive in to begin the survey. He was then instructed to continue driving on I-78 in Hunterdon County between Exits 6 and 26 for the 3 hour period. The survey was designed and implemented in accordance with professionally established and accepted procedures and methods, including those accepted by the Court in State v. Soto, Superior Court of New Jersey, Gloucester County..

6. During the survey the observer counted a total of 807 cars. Of these 374 were violating some traffic law. Counsel has instructed me to concentrate on the motorists who were violating traffic laws, as they are the only motorists subject to being stopped by the State Police. Among violators whose race /ethnicity could be determined, Hispanics made up 2.5% of the motorists. (Hispanics were represented at a slightly higher rate among the non-violators than they were among violators, but the difference was not great.)

7. I compared the 2.5% Hispanic Violators to the 15.6% Hispanics ticketed

by the two State Policemen and found that the two percentages differed statistically significantly (Chi Square=38.6 , p<.0000000006) These data indicate that an Hispanic driver is 7.2 times as likely as a non-Hispanic driver to be ticketed by these two troopers.

8. One of the inherent weaknesses in the methodology that has been employed in this survey is the classification of Hispanic motorists. There are two sources of error in visually identifying Hispanics, one which tends to overcount them and one which tends to undercount them. Some Hispanics have few or none of the characteristics which are used to visually identify them and thus may not be counted as Hispanics. Other people who are not Hispanic have some or many of the characteristics which are used to visually identify Hispanics and thus are classified as Hispanic when they are not. There is no reliable way to know exactly how many of the population fall into each of these categories. To alleviate this problem, I utilized an observer who is a former police officer and trained in systematic observation and is Hispanic. However, there is still the possibility that Hispanics were undercounted or overcounted. If they were overcounted this merely makes the results stronger.

9. To address the potential problem of undercounting Hispanics, I made two assumptions and conducted statistical test on data that would have been collected under each of the assumptions. The first assumption was an extreme one, i.e., that the observer classified no Hispanics as Hispanics and did not classify every other Hispanic as an Hispanic. That is the observer classified only one half of the Hispanics as Hispanics. The next assumption was even more extreme and highly unlikely. I assumed that the observer classified no non Hispanics as Hispanics and only correctly classified every third Hispanic as Hispanic. That is the observer correctly classified only one third of the Hispanics.

10. Under the assumption that the observer only classified one half of the Hispanics correctly, 5% of the motorists would be Hispanic and 95% non-Hispanic. The difference between 5% Hispanic and 15.6% ticketed Hispanics is highly statistically significant (Chi Square= 22.9, p. <.000002). Under this extreme assumption, Hispanics would be 3.5 times as likely as non Hispanics to be ticketed.

11. Under the assumption that the observer only classified one third of the Hispanics correctly, 7.5% of the motorists would be Hispanic and 92.5% would be non-Hispanic. The difference between 7.5% Hispanic and 15.6% ticketed Hispanics is highly statistically significant (Chi Square= 12.2, p.<.0005). Under this very extreme assumption, Hispanics would be 2.3 times as likely to be ticketed as non-Hispanics.

12. The data presented here raise a serious concern that the State Police are targeting Hispanics on I-78. The important data for this purpose are the actual stops that the State Police have made on I-78. A comparison of the percentage of Hispanics violating traffic laws on I-78 in Hunterdon County compared to the stops of Hispanics by the State Police is the definitive comparison that needs to be made.

13. I wish to note that the survey that I constructed and the instructions which I provided to Mr. Rivera was done in accordance with standards acceptable within the discipline of statistical analysis. Most particularly, the methods employed in theis matter so far are similiar to the methods that the court approved in State v. Soto. Further, the information conveyed to me by Mr. Rivera is of a form upon which statisticians normally rely and for the purposes of this analysis I have found the initial data so provided to be reliable.

I certify that the foregoing statements made by me are correct. I am aware that if any of the foregoing are willfully false, I am subject to punishment.

John Lamberth

Dated:7/26/99

WILLIAM H. BUCKMAN

Attorney at Law

714 E. Main Street, Suite 1B

Moorestown, NJ 08057

(609)608-9797

Attorney for Defendant, Ramona Maiolino

STATE OF NEW JERSEY, : SUPERIOR COURT OF NEW JERSEY

: HUNTERDON COUNTY

Plaintiff, : LAW DIVISION - CRIMINAL

:

v. :

: INDICTMENT NO. 99-00-00001-I

RAMONA MAIOLINO, :

: CERTIFICATION OF

Defendant. JOHN LAMBERTH, Ph. D.

John Lamberth certifies as follows:

John Lamberth, certifies as follows:

1. I make this supplemental report in connection with New Jersey v. Mailino. My qualifications were presented to the Court in my affidavit dated July 26, 1999.

2. 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). ⁽¹⁴⁾ 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 Mailino is positive for a Hispanic surname for all 5 Buechley Rules.

3. One of the State Police Officers made the claim in his affidavit that

it was not possible to see well enough at night to determine the race/ethnicity of a motorist. This, of course is a claim that was made by Dr. Cuppingood, statistical expert for the State in Soto and rejected by Judge Francis. In that case, two investigators for the Defense testified that they had gone out on the Turnpike at night and could determine race 80% or more of the time at night. In a recent, very large survey of the entire New Jersey Turnpike, that included a Violators Survey during both daylight and nighttime hours that I designed and directed, 1796 cars were surveyed during nighttime hours (10p.m. to 6 a.m.) Of these, it was possible to classify 1484 (82.6%) as to the race/ethnicity of the driver. While the ability to determine race/ethnicity of the driver is diminished at night, (surveyors were able to classify 94.7% of drivers in survey during daylight hours) it is not necessary for an officer to see every driver to profile. Being able to identify in excess of 80% of the drivers is more than adequate.

4. As Mr. Tucker's Certification indicates the tickets issued by troopers Tietjen and Pantuso are from the time period of April 1998 to December 1998. Even if it were the fact that these tickets were disposed between April 1998 and December 1998, the sample would still be a statistically appropriate sample from which to draw conclusions such as the information I provided in my original Certification.

5. With regard to Hispanics percentages on I-78 during the weekend, the Friday 9 p.m. to midnight survey period conducted by Mr. Rivera is the beginning of the weekend and was included as such. During that period, 116 cars were observed with 3.4% of them being Hispanic. Of the 116 cars, 21 were occupied by drivers who could not be classified, meaning that 4.2% of the race classified drivers were Hispanic. However, none of the violators were Hispanic. Thus, Hispanics did not differ materially during the Friday night survey time.

6. To increase the 2.5% Hispanic violators counted during the survey to approach the 15% Hispanics ticketed, the percentage of Hispanics on I-78 during the weekends would have to be in excess of 35%. Patrolman Tietjen did not say how much the Hispanic driver population changed on the weekends. If he is asserting an increase in Hispanic population during the weekend approaching this magnitude, we should have the opportunity to review his survey plan and data.

I certify that the foregoing statements made by me are correct. I am aware that if any of the foregoing are willfully false, I am subject to punishment.

John Lamberth, Ph. D.

WILLIAM H. BUCKMAN

Attorney at Law

714 E. Main Street, Suite 1B

Moorestown, NJ 08057

(609)608-9797

Attorney for Defendant, Ramona Maiolino

STATE OF NEW JERSEY, : SUPERIOR COURT OF NEW JERSEY

: HUNTERDON COUNTY

Plaintiff, : LAW DIVISION - CRIMINAL

:

v. :

: INDICTMENT NO. 99-00-00001-I

RAMONA MAIOLINO, :

: CERTIFICATION OF

Defendant. RICHARD RIVERA

Richard Rivera certifies as follows:

1. At the request of defense counsel I have reviewed the letter written by

Prosecutor dated 8/6/99 and the affidavit of officer Tietjen dated 8/2/99. There are a number of items in those two documents which require a response.

2. During the survey I conducted in this matter it was not difficult at all to discern race of drivers, be they African American or Hispanic. Race was discernable at day or at night. While race may not have been discernable in every single instance, it was discernable in 85 -95% of the times.

3. As I noted in my original Certification there are numerous opportunities to even increase the ability to see at night from sources of roadside artificial lighting. But race can be seen even in the absence of these sources. Much of the time race can be discerned from behind as my headlights show up the rear and part of the side profile of car occupants. Additionally from behind at night I can often see the face of the driver in front of me by looking into his rear view mirror. The light from my headlights reflects from that rearview mirror into the driver's face, illuminating it. I wish to point out that I reviewed the police report in this matter. The police allege that they paced Ms. Maiolino before they stopped her. Clearly they could have seen her features. More importantly, State Police have spotlights and take down lights on their vehicles which enable them to see the race of drivers and occupants.

4. In light of trooper Tietjen's certification I reexamined I-78 on 8/6/99. In his report on this matter he notes that he stopped Ms. Maiolino in the vicinity of mile marker 15 after supposedly pacing her for approximately one mile. The vicinity on mile marker 15 is one of the best lighted areas on the stretch of I-78 in Hunterdon County. There are sources of artificial lighting on both sides of the road. The median at this point is flat and open so that light sources on either side contribute to visibility. Additionally since the median is flat it is apparent that cars have used the area to pull over or turn in the grass. There are tire tracks on this stretch in numerous portions. Patrol cars can easily park perpendicular to the highway in this area. I would note as well that the Perryville station is very close to this vicinity, located at mile marker 12.8 and there is a cut out in the fence on the right hand side of westbound traffic even though there are two exits on either side of the barracks.

5. There is a reference in the Prosecutor's letter that gives an implication which is quite inaccurate. On page three of her letter the prosecutor states "the survey conducted by Mr. Rivera does not mention blacks but focuses on Hispanics." In fact I did count African Americans who also were a small minority of motorists on I-78. I didn't mention African Americans in my previous Certification because this matter concerns those of Hispanic appearance.

6. I have had the occasion to view the photo of Ms. Maiolino that the Prosecutor has included with its papers. 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 or a former police officer, the individual in these photos would strike me as Hispanic.

7. In her letter the Prosecutor alleges that I only observed speeding violations. While the great majority of the violations I witnessed on the survey dates was that of speeding, I did record other violations.

I certify that the foregoing statements made by me are correct. I am aware that if any of the foregoing are willfully false, I am subject to punishment.

Richard G. Rivera

Dated: 8/9/99