new jersey state legislature office of legislative ... · examination - susswein 2 1 mr. weber: mr....

NEW JERSEY STATE LEGISLATURE OFFICE OF LEGISLATIVE SERVICES

IN RE: ) TRANSCRIPT ) 0F SENATE JUDICIARY ) ELECTRONICALLY COMMITTEE INVESTIGATION ) RECORDED DEPOSITION ) OF ) RONALD SUSSWEIN

TUESDAY, FEBRUARY 13, 2001**************************

TAKEN BEFORE:

JAMES V. BOWEN, Notary Public of the State of NewJersey, for the Offices of J&J COURT TRANSCRIBERS, INC., aCertified Transcription Agency, at the Office of LegislativeServices, State House Annex, Trenton, NJ 08625, commencingat 10:00 a.m.

**********

A P P E A R A N C E S:

Senate Democratic StaffBy: JO ASTRID GLADING, ESQ.

DOUG WHEELER, ESQ.

Latham and WatkinsBy: MARK GOLDBERG, ESQ.

SCOTT LOUIS WEBER, ESQ.One Newark CenterNewark, NJ 07101

0ffice of Attorney GeneralBy: JEFFREY MILLER, Assistant Attorney GeneralRichard J. Hughes Justice Complex25 W. Market StreetAttorney for Mr. Susswein

Transcriber, Patricia A. Kontura J&J COURT TRANSCRIBERS, INC. 268 Evergreen Avenue Hamilton, NJ 08619 (609)586-2311 FAX NO. (609)587-3599

Audio Recorded

Examination - Susswein 2

MR. WEBER: Mr. Susswein, good morning. My1name is Scott Lewis Weber. I’m an attorney with Latham2and Watkins in Newark, New Jersey. Latham and Watkins3and Mike Chertoff were retained by the Senate Judiciary4Committee as special counsel to assist the Senate5Judiciary Committee in connection with its6investigation into racial profiling, or allegations of7racial profiling, by the New Jersey State Police.8

Before we begin, I just want to advise you of9my authority to take your deposition today. There was10a motion by the Senate Judiciary Committee approved11January 29th of this year in which the Senate Judiciary12Committee authorized, among other things, special13counsel to the Committee, Michael Chertoff, and his14aides and associates, to “take such testimony,15interview such persons and gather such documents in16further of this Committee’s investigation and inquiry17into the issue of racial profiling and the18circumstances pertaining thereto.”19

It was further resolved that we have the20authority “to administer oaths on behalf of the21Committee, to obtain sworn testimony.” 22

So if you would be kind enough to raise your23right hand, I’ll swear you in. If you would please24repeat after me.25


R O N A L D S U S S W E I N, SWORN1MR. WEBER: Mr. Susswein, before we begin2

today’s deposition, I’m just going to ask that everyone3in the room please identify themselves for the record. 4And if Mr. Miller would be kind enough to start.5

MR. MILLER: Jeffrey Miller, Assistant6Attorney General, counsel for Mr. Susswein.7

THE WITNESS: Ronald Susswein, Assistant8Attorney General.9

MR. GOLDBERG: Mark Goldberg of Latham and10Watkins.11

MR. WEBER: Myself, Scott Lewis Weber of12Latham and Watkins and Jo Glading, who will also be13participating this morning. Jo is counsel to the14Senate Minority.15

Mr. Susswein, let me just first off thank you16on behalf of the Committee for agreeing to appear today17and to testify about the issue of racial profiling. I18do appreciate you coming down. We know that it was of19a voluntary nature. And just on behalf of the20Committee, I do want to thank you.21

If at anytime during the course of my22questioning or questioning from others you don’t23understand a question or it’s at all unclear, please24don’t hesitate to let us know. We’re happy to restate25


the question.1Mr. Susswein, if we could begin just by2

getting a background and if you could just please start3where you went to college, where you went to law4school, and then just detail for the Committee your job5history, I’d appreciate that.6

THE WITNESS: Okay. I went to American7University Undergraduate. I got a degree, Bachelor of8Science and Political Science. I then went on to9Georgetown University Law Center, graduated in 1981. 10Right after coming out from Georgetown I took a job11with the Division of Criminal Justice in the Department12of Law and Public Safety, first as a legal intern until13I had gotten the bar results, and then I was sworn in14as a Deputy Attorney General in December of 1981. 15

I was there in a number of different16capacities, starting in the Appellate Bureau, for about1716 months or so. I went on to the State -- what was18then called the State Grand Jury Bureau.19

MR. WEBER: How long were you with the20Appellate Bureau?21

THE WITNESS: I think about 16 months.22MR. WEBER: So when you started as a DAG, you23

were immediately assigned to the Appellate Bureau?24THE WITNESS: I’m sorry?25


MR. WEBER: When you started as a DAG in1December of 1981, were you immediately assigned to the2Appellate Bureau?3

THE WITNESS: Yes. In fact, even before that4as a legal intern, or whatever the phrase was before I5passed the bar.6

MR. WEBER: So you were in the Appellate7Bureau from --8

THE WITNESS: September of ‘81 until 169months later or thereabouts.10

MR. WEBER: Okay. You were then transferred11to what bureau?12

THE WITNESS: It was then called the State13Grand Jury Bureau.14

MR. WEBER: And approximately when did you15start in the State Grand Jury Bureau?16

THE WITNESS: Whenever 16 months is from17September of ‘81. Sometime in ‘83.18

MR. WEBER: So beginning part of 1983?19THE WITNESS: Yeah.20MR. WEBER: How long were you in the State21

Grand Jury Bureau?22THE WITNESS: Well, the name of the Bureau23

changed. I was really working on one case for about a24year and a half, and then I became the Special25


Assistant to the Deputy Director of the Division of1Criminal Justice.2

MR. WEBER: When did that happen?3THE WITNESS: ‘84, something to that effect.4MR. WEBER: Special Assistant to the Deputy5

Director of the Division of Criminal Justice?6THE WITNESS: Right. Deputy Director for7

Operations. That was John DeCicco.8MR. WEBER: How do you spell John’s last9

name?10THE WITNESS: It’s D-e-C-i-c-c-o.11MR. WEBER: And approximately when were you12

appointed Special Assistant?13THE WITNESS: ‘84.14MR. WEBER: ‘84?15THE WITNESS: Yeah.16MR. WEBER: What were your responsibilities17

generally in that capacity?18THE WITNESS: Well, it turned out I became19

the Legislative Liaison for the Division of Criminal20Justice in that time period, 1984.21

MR. WEBER: Off the record.22(Off the record)23

MR. WEBER: Did you immediately begin as the24Legislative Liaison when you started your tenure as a25


Special Assistant to the Deputy Director?1THE WITNESS: It might have been a little2

thereafter. The person who was the Legislative Liaison3left and I sort of took over his position.4

MR. WEBER: And how long were you in that5position, the Special Assistant position?6

THE WITNESS: Well, the titles changed over7time. First I was Legislative Liaison. Then a unit8was formed called the Policy and Legislation Unit. I9was a member of that. At some point I became the Chief10of that unit.11

MR. WEBER: When did you become the Chief of12the unit?13

THE WITNESS: I really don’t recall whether14it was ‘84, ‘85. Things were changing rather rapidly.15And then I became the Special Assistant to the Director16of the Division of Criminal Justice.17

MR. WEBER: When was that?18THE WITNESS: I’m going to say ‘85.19MR. WEBER: And who was the Director at that20

time?21THE WITNESS: Don Belsole.22MR. WEBER: How long did you remain in the23

Special Assistant to the Director of CJ position?24THE WITNESS: As long as Don was there. 25


MR. WEBER: Approximately when did he leave?1THE WITNESS: 1988.2MR. WEBER: What was your position then in3

1988 after Mr. Belsole left?4THE WITNESS: Well, at some point I was5

promoted to Assistant Attorney General and I was in --6I’m not even sure of the name. The Bureaus kept, they7kept changing the names. The functions really never8did change that much, but the titles of the Bureaus9changed.10

MR. WEBER: Was it in approximately 1988 when11you became an Assistant AG?12

THE WITNESS: I believe it was earlier than13that, 1987.14

MR. WEBER: How long did you remain an15Assistant AG?16

THE WITNESS: Until I left the State. Until17I left the Division of Criminal Justice in February of18‘92.19

MR. WEBER: Where did you go in February of201992?21

THE WITNESS: Union County Prosecutor’s22Office.23

MR. WEBER: In what capacity?24THE WITNESS: The Executive Assistant25


Prosecutor.1MR. WEBER: How long were you in that role?2THE WITNESS: I stayed there until September3

of 1994.4MR. WEBER: What happened in September of5

1994?6THE WITNESS: I returned to the Division of7

Criminal Justice.8MR. WEBER: In what role?9THE WITNESS: Assistant Attorney General and10

Deputy Director for Policy.11MR. WEBER: How long did you remain in that12

position?13THE WITNESS: Until I guess October of 2000.14

Just a few months ago.15MR. WEBER: What position were you16

transferred to or promoted to in October?17THE WITNESS: Right now I’m in the Office of18

Attorney General and the title is Special Assistant to19the Attorney General for Policy.20

MR. WEBER: Are you now up on the Eighth21Floor?22

THE WITNESS: Yes.23MR. WEBER: Have you ever been up on the24

Eighth Floor prior to this promotion in October 2000?25


THE WITNESS: Briefly. Just before I left1for the Union County Prosecutor’s Office. Just a2couple of weeks.3

MR. WEBER: All right. Let’s go back a4little bit. I want to get some details on what your5responsibilities were in connection with some of these6positions here.7

What were your primary functions as a8Legislative Liaison from the Division of Criminal9Justice back in 1984 to ‘85 time frame?10

THE WITNESS: I would represent the Division11before legislative committees. I would review bills12that were of interest to law enforcement and the13Division of Criminal Justice. And I would draft14legislative initiatives for the Attorney General and15the Governor’s Office.16

MR. WEBER: And I assume that those functions17were made in the same as both the Legislative Liaison18and as the Chief of the unit?19

THE WITNESS: Yes. Yes.20MR. WEBER: With the additional21

responsibility, I take if, of the supervisory role as22the Chief of the unit?23

THE WITNESS: That’s correct.24MR. WEBER: What were your general25


responsibilities as the Special Assistant to Mr.1Belsole?2

THE WITNESS: Doing projects for the3Director. And at one point he became the First4Assistant Attorney General.5

MR. WEBER: Is that when you briefly went up6to the Eighth Floor?7

THE WITNESS: No. I went to the Eighth Floor8just before I went to the Union County Prosecutor’s9Office.10

MR. WEBER: Were you at all involved in11legislative -- in a legislative capacity or a12legislative role when you were the Special Assistant to13Mr. Belsole?14

THE WITNESS: Yes.15MR. WEBER: Were you involved in the drafting16

of the Comprehensive Drug Reform Act of 1987?17THE WITNESS: That was my assignment, yes.18MR. WEBER: Okay. If you could just briefly19

describe for the Committee, when you say that was my20assignment, what exactly did it entail?21

THE WITNESS: Well, drafting it for the22Governor’s Office and for the Attorney General. That23involved reviewing the laws in all 50 states and24legislation pending in New Jersey and the 50 states,25


and trying to come up with the most comprehensive,1modern drug enforcement statute.2

MR. WEBER: Who gave you that assignment?3THE WITNESS: That would have come from Don4

Belsole and Cary Edwards, the Attorney General.5MR. WEBER: Were you also involved in the6

drafting of the statewide Action Plan that was released7in the beginning of 1988 under then Attorney General8Cary Edwards?9

THE WITNESS: Yes.10MR. WEBER: As concerns to the Comprehensive11

Drug Reform Act of 1987, did you contemplate the use of12drug courier profiles in connection with your efforts13to draft that legislation?14

THE WITNESS: The legislation really didn’t15deal with that as much as the Action Plan which was16designed to enforce it.17

MR. WEBER: Were you cognizant of the18existence and use of drug courier profiles by other law19enforcement agencies while you were working on drafting20the Act itself?21

THE WITNESS: I suppose that I was.22MR. WEBER: How did the issue of drug courier23

profiles come into play in connection with your work on24the Action Plan?25


THE WITNESS: The Action Plan was meant to be1a comprehensive guide to the law enforcement community2on how to implement the new statute, the new legal3tools that the Legislature and the Governor had4provided. So there was a number of different chapters5that gave direction to the various law enforcement6actors throughout the law enforcement community. One7of the goals or one part of the Action Plan was on a8supply side, interdiction, and one aspect of9interdiction is highway interdiction and also air10strips, boat marinas.11

MR. WEBER: The draft of the Comprehensive12Drug Reform Act of 1987 that you prepared, ultimately13the law that was adopted, was it very similar to the14draft that you had prepared? Were there a lot of15changes to it?16

THE WITNESS: There were very few changes.17MR. WEBER: Very few changes.18THE WITNESS: Through the legislative19

process?20MR. WEBER: Yes.21THE WITNESS: There were comparatively few22

changes to the bill that was proposed by the Governor.23MR. WEBER: And how much of the Action Plan24

were you responsible for drafting?25


THE WITNESS: I wrote the entire Action Plan.1MR. WEBER: There are, as I’m sure you’ll2

recall, several directives that were proposed in the3Action Plan. Some of the directives concerned the4amassing of offender data, to then put together a data5base that could then be used, I would assume, to derive6profiles of offenders to assist local law enforcement,7as well as the New Jersey State Police. Do you8remember that directive?9

THE WITNESS: There are a number of different10directives for collecting data intelligence11information, crime trend analysis.12

MR. WEBER: Well, but there was a directive13that would specifically address the compilation of14information for individuals who were offenders,15correct?16

THE WITNESS: There was at least one, yes,17directive.18

MR. WEBER: Okay. Did you give any19contemplation to how that information would be used?20

THE WITNESS: I’m not sure I understand.21MR. WEBER: Well, why did you put that22

directive in the Action Plan?23THE WITNESS: Because the goal was to enhance24

the effectiveness and efficiency of law enforcement in25


that particular directive through collecting1information. That was what was going on throughout the2law enforcement community.3

MR. WEBER: Okay. So what was your goal for4the use or your intent for the use of that information5once it was collected and stored in this data base?6

THE WITNESS: To increase the likelihood of7interdicting drugs and illicit commerce.8

MR. WEBER: Okay. But what I’m trying to9drive at here is, if the directive, in fact, was10followed, and it’s my understanding based upon other11witness interviews, that ultimately the data base was12never put together. But let’s assume that the data13base did, in fact, exist as a result of this directive14and that the information on offender characteristics15was put into the data base. What then would be done16with that information? How would it be used?17

THE WITNESS: Well, just as a profile is18used, and I’m using the word to distinguish a racial19profiling, which is a different beast. It would be20used to assist law enforcement in identifying criminal21activity.22

MR. WEBER: Would it be used to put together23drug courier profiles?24

THE WITNESS: That was the original goal.25


MR. WEBER: Okay. Prior to drafting the1Action Plan, did you conduct any research to determine2whether or not drug courier profiles were3constitutionally permissible?4

THE WITNESS: Certainly.5MR. WEBER: Did you memorialize that research6

in any form?7THE WITNESS: I know there’s the memo in 19888

which came later --9MR. WEBER: But that postdates, right?10THE WITNESS: No, I mean there really never11

was and continues to be no legal question about the use12of profiles.13

MR. WEBER: Use of drug courier profiles.14THE WITNESS: Absolutely. I mean the case15

law has been pretty uniform and continues to be that --16and I’m talking about race neutral profiles, they are17part of modern law enforcement. Otherwise known, and18probably better described today, as modus operandi.19

MR. WEBER: The Action Plan set forth various20directives. Was there any other document that you know21of that provided more detail on how these individual22directives set forth in the Action Plan could actually23be implemented?24

THE WITNESS: There were many different25


documents and projects. It would depend on what1subject you’re referring to.2

MR. WEBER: Well, for instance, the subject3we’ve been talking about, the compiling this offender4data base. Was there any other document that you5prepared or that you were aware of that more6specifically delineated how the data base could be set7up, how it could be used, how the information would be8collected, how it would be digested? Things to that9effect.10

THE WITNESS: No. Keep in mind that I am --11had been and continue to be computer illiterate, so I12wasn’t involved in designing -- it called Nomad, was13the computer that was supposed to do this.14

MR. WEBER: Whose responsibility was it to15take the directives, which I take it were16recommendations, is that correct? 17

THE WITNESS: No. I believe that directives,18once they were issued by the Attorney General, they19were directives to the law enforcement community.20

MR. WEBER: Okay. Then whose responsibility21was it to see that the law enforcement community22complied with the directives in the Action Plan?23

THE WITNESS: Were there were a number of24committees established as part of the Action Plan to25


help to implement -- implement the Action Plan.1MR. WEBER: Were you part of any of those2

committees?3THE WITNESS: I was part of a couple of them,4

most notably what was called the Education -- well, it5is now called the Education of Law Enforcement Working6Group. In the Action Plan it was called the School7Zone Narcotics Enforcement Working Group.8

MR. WEBER: Were any of the committees that9you were involved in responsible for complying with the10directive that concerned the establishment of the data11base, the offender data base and the collection of that12data?13

THE WITNESS: I believe there -- well,14certainly there was a training committee, and I believe15there may have been another committee on designing the16Nomad system.17

MR. WEBER: Were you on the training18committee?19

THE WITNESS: I don’t believe I was on it. I20may have been. I certainly wasn’t the Chair of it.21

MR. WEBER: We briefly discussed that some22other witnesses have testified that not all of the23directives were ultimately complied with. Do you know24why that happened?25


THE WITNESS: Well, a number of reasons,1depending on the directive -- for example, the Nomad2system was a great idea. Maybe a little bit before its3time. The technology simply didn’t exist to design the4system the way it was originally contemplated. Some5other directives didn’t make any sense as it turned6out.7

MR. WEBER: Ultimately who had the decision8or who would make the decision to say okay, Directive9Five -- I’m using five as an example, Directive Five10just doesn’t make sense. It was a good idea, but we11really can’t implement it so let’s scrap that12directive. Whose decision was that?13

THE WITNESS: It would be a, probably a group14that would get together and ultimately it had to be the15Director, the Superintendent or the Attorney General.16

MR. WEBER: Was there any subsequent17communication to that type of decision being made to18the law enforcement community saying okay, you know, we19previously issued Directive Number Five, but we now20have decided to withdraw it for whatever reason?21

THE WITNESS: The only ones that I think were22really not implement had to deal with Nomad, and mostly23between State Police and Criminal Justice. In other24words, within the State system. So I don’t believe we25


ever told local or county law enforcement to disregard1or change one of the directives.2

MR. WEBER: All of this work that we’ve been3talking about, the work on the Action Plan, this all4occurred while you were an Assistant Attorney General,5from ‘87 to ‘92, correct?6

THE WITNESS: The original Action Plan was7done in a very, very brief time period in ‘87.8

MR. WEBER: Why was it done in a very brief9time period?10

THE WITNESS: Well, the Attorney General was11insistent on you can’t have this new comprehensive law12and then not use it. He didn’t want something to sit13on the shelf. So there was this narrow window in terms14of putting out the directives and the guidelines.15

MR. WEBER: You said in February of ‘92 you16went to the Union County Prosecutor’s Office. Did you17resign from the Attorney General’s Office, were you on18sabbatical? How did that work?19

THE WITNESS: No, I had resigned. It wasn’t20a -- on leave or anything of that nature.21

MR. WEBER: What were your general22responsibilities as the Executive Assistant Prosecutor23in Union County from February ‘92 to September ‘94?24

THE WITNESS: It varied day to day. I was25


Drew Rotolo’s Executive Assistant. I was Chief Counsel1to the Union County Police Academy. I was involved in2supervising the Victim Witness Unit.3

MR. WEBER: Did you discontinue your training4involvement with the State Police Academy?5

THE WITNESS: No.6MR. WEBER: Okay. So even while you were at7

Union County, at the Union County Prosecutor’s office,8you still continued to be involved in training at the9State Police Academy in Sea Girt?10

THE WITNESS: Yes. I did a number of courses11or schools for them.12

MR. WEBER: You then come back in September13‘94 to be an Assistant Attorney General, Deputy14Director of Policy. Again, this is in September of --15

THE WITNESS: I’m sorry, the Policy Bureau.16MR. WEBER: The Policy Bureau. What were17

your responsibilities generally in that position?18THE WITNESS: It was supervising the19

Legislation Section, the Research and Evaluation20Section and the Grants Section, which was eventually21called the Program Development Section.22

MS. GLADING: What year was that?23THE WITNESS: I came back in 1994, late. 24

September of ‘94.25


MR. WEBER: And you remained in that position1for approximately six years?2

THE WITNESS: Yes.3MR. WEBER: And you’re now Special Assistant4

to the Attorney General for Policy. What are your5general responsibilities in that role?6

THE WITNESS: Doing special projects, mostly7for Paul Zoubek and the Attorney General.8

MR. WEBER: Still have legislative policy9bent to it?10

THE WITNESS: To some extent. It’s not the11formal role of reviewing bill comments that I had when12that was part of my actual unit. But if there’s13legislation on an area that they think I have some14expertise, I would comment or kibitz on that.15

MR. WEBER: When did you first begin your16involvement in the training at the State Police Academy17in Sea Girt?18

THE WITNESS: I was still in the Appellate19Bureau -- or it was then called the Appellate Section.20So that would have been ‘82.21

MR. WEBER: ‘82?22THE WITNESS: Or ‘83.23MR. WEBER: And how did it come to pass that24

you were involved in the training with the State25


Police?1THE WITNESS: The then Deputy Chief of the2

Appellate Section had been doing training for the State3Police and one day he grabbed me and said, come with4me, you’re going to be -- he wanted me to watch it so5that I could take it over.6

MR. WEBER: Did you take it over shortly7thereafter? Was this a quick passing of the baton 8or --9

THE WITNESS: Yeah, it was the very next10session. I mean the sessions were maybe less than once11a month but, yeah, the very next -- I didn’t at the12time believe that -- I thought I was a driver at the13time and it turned out he wasn’t kidding, I was going14to take it over for him.15

MR. WEBER: What were the topics that you16spoke on in connection with the training? And let’s17start with, you know, the first topic you remember18speaking about and then let us know if that expanded or19changed with time.20

THE WITNESS: Well, it’s always been arrest,21search and seizure, occasionally Miranda gets woven22into that. Miranda and Fifth and Sixth Amendment23issues. But basically it’s Fourth Amendment and state24constitutional counterpart to the Fourth Amendment.25


MR. WEBER: Has it basically been the same1course that you’ve taught, and again, obviously2updating it as case law develops, but it’s basically3been the same course that you’ve taught since 1982?4

THE WITNESS: Yeah, the same subject. 5Obviously the principles have changed.6

MR. WEBER: And how frequently do you teach7this course?8

THE WITNESS: That would vary. It was never9more than once a month. It was more like once every10other month. There were two courses that the State11Police put on. One was called the Criminal12Investigation School. The other was called the13Narcotics Enforcement or Drug Enforcement School. One14or the other was a one-week, the other was a two-week15course. And I would do the half-day on arrest, search16and seizure. And although this was State Police, most17of the audience were not State Police, they were local.18

MR. WEBER: So this was not then for the19State Police Academy for cadets?20

THE WITNESS: No, absolutely -- to this day I21have never done a training session for recruits, or22cadets, whatever they’re called.23

MR. WEBER: Do you have a counterpart who24does the training for the recruits?25


THE WITNESS: I assume that there are, I1don’t know who that is.2

MR. WEBER: Okay. So you haven’t had any3conversation sort of to coordinate information with4other instructors, either for cadets or for local law5enforcement?6

THE WITNESS: No, I have not.7MR. WEBER: The courses that you teach, is it8

sort of a voluntary basis? Local law enforcement sees9what programs are being offered by the State Police and10they could send representatives if they want? Or is11this something that’s mandated?12

THE WITNESS: I don’t think it’s mandated. I13think it’s made available to local and county and state14people to come and they come. Now, whether individuals15were assigned by their departments -- it depends on16what you mean by mandatory. It wasn’t required by law17or regulation. I suspect that some officers were told18to go by their superiors.19

MR. WEBER: In the context of these courses,20have you dealt with the issue of the use of race in21connection with stops --22

THE WITNESS: Yes.23MR. WEBER: -- either motor vehicle stops or24

stops on the street of individuals?25


THE WITNESS: Yes.1MR. WEBER: Have the materials that you have2

presented in connection with that changed over time?3THE WITNESS: Yeah. I think the big change4

was sometime in 1986 a case came out called State v.5Kuhn, and that laid out what I thought was a very6strict rule. And frankly, before Kuhn I might not have7even addressed the subject. But once that Appellate8Division case had come out, I wove that into the9lectures.10

MR. WEBER: Okay. So prior to the Appellate11Division decision in State v. Kuhn in 1986, as best as12you can recall, you probably didn’t even deal with the13issue of stops and the use of race in connection with14stops?15

THE WITNESS: I really don’t remember, but I16know that when Kuhn came out, I added -- I added that. 17So I’m assuming that there was not much about that --18

MR. WEBER: Well, just for the record for19someone who’s reading this transcript, if you’d give us20the Reader’s Digest version. What is the holding in21Kuhn as it pertains to the use of race and stops of22individuals?23

THE WITNESS: Kuhn stands for the proposition24that law enforcement cannot use race or ethnicity in25


drawing inferences of criminal activity at all. It1cannot rely on it at all. That particular case was2actually -- it was a State Police case, it was a3highway stop. It was a white defendant who was seen4conversing in a high-crime neighborhood with two5minority, I believe Hispanic males. And the Court6basically said that you can draw no inferences from the7fact that the person is white or vice versa.8

MR. WEBER: And you, I take it, use the9holding in State v. Kuhn to apply it to the use of10motor vehicle stops, although the facts in that11particular case didn’t deal with a motor vehicle stop?12

THE WITNESS: Absolutely. I just assumed13that that was a -- the Kuhn case cited to U.S. Supreme14Court authority with a see, an s-e-e, signal. And I15just assumed that was the law.16

MR. WEBER: Has your instruction on State v.17Kuhn, or instruction that addresses State v. Kuhn,18change at all since you made that part of your lesson?19

THE WITNESS: Well, certainly in the last20year or so I have, when I do my lecture, search and21seizure lectures, greatly amplified, in light of the22racial profiling controversy, amplified that point.23

MR. WEBER: Did anyone instruct you to24amplify that point, or is it something you did on your25


own?1THE WITNESS: I certainly did it on my own,2

but it’s not inconsistent with all the conversations3I’ve had about the importance of this issue.4

MR. WEBER: Have you worked with anyone at5the State Police in connection with the search and6seizure courses that you have instructed? Have you7coordinated at all with anybody at the State Police? 8Other than, you know, the logistics of it will be on9Thursday at five, you know, two o’clock?10

THE WITNESS: Very recently, yes. I mean in11the last month or so, because I’m doing a training for12Trooper Coaches. Before then, I don’t think13coordination is the word I would use.14

MR. WEBER: What word or words would you use15to describe the interaction you had with the State16Police in connection with your training?17

THE WITNESS: They would invite me to come to18a class, a logistics of where they often tried to19accommodate my schedule for morning or afternoon. And20I would go and I would do the training for them.21

MR. WEBER: Did they ask to review your22materials before you’d present at the course?23

THE WITNESS: No.24MR. WEBER: Did you ever review any of the25


State Police materials that they were using, either in1connection with the arrests, searches and seizure2topics, Fourth Amendment topics? Did you ever request3to review those materials?4

THE WITNESS: Not until recently. Not until5the interim report and the post-interim report.6

MR. WEBER: All right. Let’s -- what I’m7going to do now is --8

MS. GLADING: Can I just --9MR. WEBER: Sure.10MS. GLADING: Did you ever have any11

discussions with Detective Caffrey or Merschano about12drug courier profiles, or with anyone else who was13training at the academy?14

THE WITNESS: No. There was no -- I did my15three-hour, two-hour bit. I would leave and then16whoever else was doing more practical training or other17kinds of training did their thing.18

MR. WEBER: Mr. Susswein, I’m going to show19you a series of documents. For the most part they’ll20be in chronological order. However, some of them are21undated so those will not be in chronological order.22

The first document I’m going to show you is23Bates stamped OAG000472 through OAG000497. It is24undated, but it appears to be the draft of a brief with25


handwritten comments that are replete through the1document. Have you ever seen this document before?2

THE WITNESS: No.3MR. WEBER: Do you know whose handwriting it4

is in the document?5THE WITNESS: No.6MR. WEBER: Were you at all involved in the7

drafting of any of the briefs in connection with the8State v. Soto case?9

THE WITNESS: No, I had no involvement with10the litigation, other than as a witness in the hearing.11

If I can -- I did at some point read the12brief after it was filed.13

MR. WEBER: After it had been filed.14THE WITNESS: As part of the interim report15

process of research.16MR. WEBER: I show you a new document. This17

is a document I’m sure you’re familiar with. Actually18I think you probably referred to it before. It’s a19September 16, 1988 memorandum that you authored to John20Holl. For the record it’s OAG005708 through 005731. 21You are the author of this document, correct?22

THE WITNESS: Yes.23MR. WEBER: Do you have an understanding as24

to why DAG Cote conducted some research and authored a25


few memorandum on the issue of drug courier profiles in11988?2

THE WITNESS: I really don’t know what3inspired her to write the memo that she wrote that I4responded to.5

MR. WEBER: There is reference in here, and I6believe it is Footnote Number 1 on Page 3, to a meeting7last month on the matter of drug courier profiles, “At8which time I was asked to prepare this responding9memorandum.” Why were you engaged in the discussion10about drug courier profiling at this time in 1988?11

THE WITNESS: Well, at some point I was shown12a memo. I haven’t even read it since then, I don’t13have that -- I have my responding memo, but I was asked14to comment on that. And I did not agree with some -- I15agreed with a lot of it, but I didn’t agree with some16of the analysis.17

MR. WEBER: Do you know why you were asked to18comment on DAG Cote’s memorandum?19

THE WITNESS: It’s consistent with the fact20that I was involved with the Action Plan, the statewide21narcotics Action Plan.22

MR. WEBER: Was it typical or atypical for23the Attorney General’s Office to be involved in the24drafting of legislation that dealt with the topic of25


crime and then to conduct research after that1legislation has passed and after directives have been2issued to determine whether or not the directives that3had already been issued were, in fact, permissible4under the current state of the law?5

THE WITNESS: That’s a long -- 6MR. WEBER: I tried my best to --7THE WITNESS: When I draft legislation in the8

Comprehensive Drug Reform Act, I like to do my9constitutional analysis beforehand when you have an10opportunity to write it in such a way that it will be11constitutional. That doesn’t mean we don’t review12things after the fact as the law changes. I know we13did a lot of research on the whole concept of the14school zone and -- the law, by the way, in terms of15drug courier profiles, didn’t mention one way or the16other the use of drug courier profiles. 17

MR. WEBER: Well, I guess what I’m driving18at, and I mean, you know, I’m not Monday-morning19quarter-backing or I mean no disrespect to anyone in20the Attorney General’s Office by this, but I was sort21of struck by -- it seemed to me kind of odd that you22would have the Comprehensive Drug Reform Act of 1987,23you then have the State Action Plan, which was released24very early in 1988. And as you have told us, then25


Attorney General Edwards said, “Okay, we now have this1law, we need to tell everybody what we’re going to do2with it.” And then there’s a series of memorandum that3postdate all of that that deal with the issue of the4drug courier profiling. Was there an event that5occurred after the Action Plan came out and which maybe6someone questioned the appropriateness of drug courier7profiling that then prompted the Attorney General’s8Office to go conduct some research and ultimately9engage you in the process?10

THE WITNESS: I honestly don’t know what11prompted Meredith Cote to -- obviously she had gotten12an assignment. But I don’t know what prompted her to13write that memorandum. I never saw any pedigree or any14provenance information about that.15

MR. WEBER: Was there any discussions in16either the meeting that is mentioned in Footnote Number171 here in the memo or any other meetings that you may18have had been a party to in which it was discussed why19this research was being conducted?20

THE WITNESS: Not that I recall, no.21MR. WEBER: There is some strong language in22

your memorandum. Sometimes you strongly agree. And23you use the word “strongly” throughout the memo, and24sometimes you strongly disagree with DAG Cote’s25


analysis. And again, no disrespect by the question. 1Was this sort of your style when you reviewing some2opinions and some work to take strong positions on3topics, or was there something in particular about this4subject or about the initial analysis that led you to5take such strong positions, either agreeing or6disagreeing with the analysis?7

THE WITNESS: I don’t have a reputation for8tact or pulling punches. If I agreed with someone, I9said it. If I thought they were wrong, I said it. 10

MR. WEBER: So there was nothing in11particular about this issue that really forced you to12take a fervent view on certain of the issues in the13memo?14

THE WITNESS: No, other than I thought that15some of the analysis was wrong.16

MR. WEBER: Footnote 1 in the memo, and I’ll17read from it, states in part, “During our meeting last18month on the matter of drug courier profiles at which19time I was asked to prepare this responding memorandum,20it was suggested that I’d be incredibly naive in21thinking that the police could develop and implement a22profile which does not, at least sub rosa, consider the23driver’s race or Hispanic origins. Perhaps so. I24nonetheless submit that we must assume good faith. And25


besides, if those who have suggested that police would1not apply a profile in a non-discriminatory fashion are2correct. The matter at issue is entirely academic3since the same police officers would doubtless continue4to make such stops without the benefit of a properly-5developed and tested profile. We would, in other6words, have accomplished nothing except to adopt the7fiction that no formal profile is being used. I favor8a more candid response and submit that this is actually9a more realistic and entirely less naive approach than10one which assumes that profiles are inherently improper11and would suggest that they should be banned.”12

From my read of this memo, that seems to me13to be at the heart of one of the issues. And correct14me if I’m wrong, but your position on the whole issue15of drug courier profiles was better that we state what16is permissible, instruct everyone on what is17permissible, than leave it up to their own discretion. 18Because when you leave it up to the discretion of the19police officers, that’s when you may run into the20problems.21

THE WITNESS: That’s fair. What I wanted was22positive -- you have to say what they can’t do,23obviously, that’s part of our job as lawyers, what24police cannot do, and then explain what they can do and25


have a procedure in place so that it’s, to use the New1Jersey Supreme Court’s phrase, “regularized” police2knowledge, crime trend analysis, rather than leaving it3to individuals to sort of on their own come up with4some kind of visceral profile that’s not supported by5and not documented by evidence.6

MR. WEBER: Who was it in the meeting, as7best as you can recall, that suggested that you were8being incredibly naive?9

THE WITNESS: I have thought about that a10lot, in light of the question, I really don’t remember11where exactly that was coming from. I know that was12so, but I don’t remember which individual.13

MR. WEBER: Was the point that you were being14naive in thinking that the police could develop a15profile and implement, or was it the position that if16the Attorney General’s Office, the lawyers, developed a17profile, that would be a better road to travel down?18

THE WITNESS: My opinion is it would be a19better road to travel down, that we have a regularized,20carefully-documented modus operandi profile, as it21were. I always prefer “express” rather than “implied.” 22 Maybe sub rosa wasn’t the right Latin word to use at23this point, but I like giving clear directions that are24enforceable and that people can understand.25


MR. WEBER: Was there anyone that you can1recall who advocated more discretion to the police,2let’s not have an express policy, let’s just sort of3let them do what they’re going to do?4

THE WITNESS: That wasn’t my impression. It5wasn’t coming from that direction, it was more of6you’re not allowed to use a profile. And again, I’m7talking about a race-neutral profile and I thought the8case law was, and to this day I’m convinced the case9law is very clear that you can.10

MR. WEBER: Just so the record is clear, and11I apologize for not having the specific reference at12hand earlier. In your memo you do reference Directive136.4 and 6.5, which address the offender profiles that14were set forth in the Action Plan. That’s on Page 1015of the memo, OAG005717. On the bottom of Page 10 you16state -- first full paragraph -- not first full -- the17full paragraph that begins on the bottom of Page 10. 18“If the conclusion in DAG Cote’s memorandum were to be19adopted as official State policy, these important20provisions of the statewide narcotics Action Plan would21have to be repealed or at least severely curtailed.”22And again, this talks about Directive 6.4 and 6.5,23which deal with, among other things, the up-to-date24offender profiles. “The point is simply that DAG25


Cote’s conclusions of law would work a fundamental1reversal of our narcotics enforcement and patrol2policy. Needless to say, we should be loathe to do3this unless it is absolutely clear that the4Constitution forbids the use of such profiles as a5means of selecting among persons who have committed6motor vehicle offenses in the presence of police7officers. I submit not only that a lawyerly counter8argument can be offered in good faith to defend the9constitutionality of such a policy, but that the policy10will ultimately withstand constitutional challenge.”11

This is another one of the base issues12involved in your memo, is it not, that if the AG’s13Office were to accept DAG Cote’s analysis, these two14directives would have to be pulled from the Action15Plan?16

THE WITNESS: Or at least severely curtailed,17because there was another argument that there were18things that you could consider, but only after the stop19had been made, which I don’t see the distinction.20

MR. WEBER: Was there any meeting that21occurred after you had circulated the September 16th,221988 memo to discuss your memo and contrast it against23DAG Cote’s memo?24

THE WITNESS: Not that I participated in.25


MR. WEBER: Did you get any feedback from1John Holl or anyone else in connection with your2September 16th memo?3

THE WITNESS: No, I never heard which4decision was made or -- in terms of whether my memo was5accepted or her memo was accepted as the correct6statement of the law.7

MR. WEBER: Did you have any discussions with8Ann Paskow or Debra Stone or DAG Cote after you9promulgated your memo about the stopping?10

THE WITNESS: No.11MS. GLADING: A couple of questions.12Meredith Cote testified last week that she13

recalls the meeting at which this was discussed and she14said general statistics were discussed at this meeting15and she recalls the statistics indicating that16minorities were being disproportionately stopped. And17she said that she took the position that a drug courier18profile would lead to abuse by the State Police and she19based that belief on the statistics that were discussed20at the meeting with Belsole. What do you recall about21statistics that were discussed at that meeting?22

THE WITNESS: I’m at a disadvantage, I23haven’t read her memo. I only have my memo. I know in24my memo I don’t mention statistics. I don’t have any25


recollection that we talked about numbers. If it had1been in her memo, I think I would have commented,2because my memo is longer than hers, my responding3memo. I would have commented. I have no recollection4that we had any numbers at all. This was all about5drug courier profiles, not about racial profiling.6

MS. GLADING: I’m sorry if you misunderstood. 7But she testified last week and said that she recalled8this meeting and in reference to Footnote 1 on Page 3. 9At that meeting statistics were discussed. It was not10in her memo. And she said part of her thinking at the11time was that there was a disproportionate rate at12which minorities were being stopped. It was one of the13reasons she didn’t believe the drug courier profiles14could be adequately controlled to keep them race-15neutral.16

THE WITNESS: I have no recollection of that17being in the meeting or in her memo. I know it’s not18in my memo. 19

Just for the record, if it had been, it would20have been my style, since I write long memos I would21have cited it.22

MR. MILLER: Ms. Glading, my recollection23differs slightly from yours. The record will -- but I24think what she said, quite frankly, is that -- I don’t25


think she said that numbers specifically were1discussed, the concept of minorities being stopped2disproportionately was discussed.3

MR. WEBER: The next document we’ve put in4front of you, Mr. Susswein, is OAG005736. It is a5February 14th, 1990 memorandum to then Attorney General6Del Tufo from then Colonel Superintendent Justin7Dentino. Thomas Reilly, Theresa Martinac and yourself8have been cc’d on the memo.9

Do you know why you were cc’d on this memo?10THE WITNESS: I actually wrote the program11

for R.O.A.D.S.I.D.E. And Terry Martinac is a grant12coordinator. This came up rather spontaneously. Some13federal monies became available. I was asked, I14believe over a weekend, to draft a, not a concept15paper, but some initial grants type of application for16how to use this federal money from Department of17Transportation. That was my involvement in 18R.O.A.D.S.I.D.E.19

MR. WEBER: Now, it was also right around20this time that Superintendent Dentino testified before21the Senate Judiciary Committee that he would forbid22State Police troopers from using racial profiles in23making arrests. Were you involved at all in24Superintendent Dentino’s decisions concerning racial25


profiling and this change in policy?1THE WITNESS: No. First of all, I wouldn’t2

agree that it was a change -- well, policy, it was the3first time -- the 1990 standard operating procedure was4the first time they ever had anything in writing that5was soup to nuts on road stops and included the6statement against any form of discrimination.7

MR. WEBER: That was SOP F3?8THE WITNESS: Either F3 or F55, I get them 9

-- and I have no idea what the F stands for or why.10MR. WEBER: Were you involved in providing11

any advice to Superintendent Dentino or drafting any12aspect of that new SOP?13

THE WITNESS: No, I read about it from a14press release.15

MR. WEBER: Did you have any understanding as16to why Superintendent Dentino had decided to promulgate17that comprehensive SOP in 1990?18

THE WITNESS: Well, I know from the press19release, and I was aware at the time, there was a20controversy, there was some litigation that was going21on. I believe a television station, at least in this22time period, I think it was around this time period,23was running a series on the concept of driving while24black. So it was an issue and the Colonel came in and25


made it one of his top early priorities to put an end1to this controversy.2

MR. WEBER: That was the Channel 9 television3series that was run in September of ‘89 that you’re4referring to?5

THE WITNESS: Yes.6MR. WEBER: Was anything done after the7

airing of that television program in 1989 that you’re8aware of to address the allegations that were made in9that television program about racial profiling prior to10Colonel Dentino becoming the Superintendent of the11State Police?12

THE WITNESS: I wasn’t privy to what the13response was, the official response to the television14series.15

MR. WEBER: Throughout your career at the16Attorney General’s Office, you have been involved in,17among other things, policies and legislation and the18whole policy process, for lack of a better phrase. 19Were you counseled or did anyone seek your input from a20sort of public relations standpoint when the television21program was aired in 1989?22

THE WITNESS: No.23MR. WEBER: How about in connection with24

Superintendent Dentino’s promulgation of the new SOP’s?25


THE WITNESS: No, I had nothing to do with1the drafting or promulgation of the SOP; the 1990 SOP.2

MS. GLADING: Do you know who did?3THE WITNESS: I wasn’t involved in it, I4

really don’t know.5MR. WEBER: I’m sorry, your response was?6THE WITNESS: I don’t think it was coming out7

of Division of Criminal Justice so...8MS. GLADING: So you don’t know who did draft9

them?10THE WITNESS: I would assume it was the State11

Police, but I don’t know who provided counsel, if12anyone.13

MR. WEBER: You testified earlier that, to be14redundant, you had testified in the Soto matter. What15was the purpose of you testifying in the Soto matter? 16Who contacted -- let’s start it that way. Who17contacted you and asked you to testify in connection18with the Soto matter?19

THE WITNESS: Jack Fahy. The issue was in20the statewide narcotics Action Plan the word “profile”21was used a couple of times, the directives that you22cited to. And there is and continues to be widespread23confusion as if the word “profile” and “racial24profiling” are synonymous, and they’re not. So my25


purpose was to clarify what the Action Plan said as1opposed to some of the allegations that were made that2it authorized profiling, as if profiling was either3illegal or inappropriate.4

MR. WEBER: Was it your intent that the5profiling as it was used in the Action Plan be a race-6neutral profile?7

THE WITNESS: It had to be because it had to8be constitutional. The Action Plan was very, very9clear the goal here wasn’t just to take drugs off the10street or off the highways, it was to apprehend people11and to subject them with the Comprehensive Drug Reform12Act. That required that the evidence be admissible. 13

So there are other provisions of the Action14Plan that relate back to those two directives that say15that it has to be done in a constitutional fashion.16

MR. WEBER: Does it specifically state that17the profiles have to be race-neutral?18

THE WITNESS: No. It just says it has to be19constitutional.20

MR. WEBER: Why is that? Was there any21discussion given to the concept of in order to make22sure that this is constitutional and this be done23properly, we need to spell out specifically what data24can be collected and what data cannot be collected?25


THE WITNESS: Well, the Action Plan didn’t1spell out any of the Constitution; Fourth Amendment,2Fifth, Sixth or 14th Amendment. It just didn’t go into3those details. My understanding, right or wrong, was4that at least as of 1986 in the Kuhn decision, law5enforcement could not use race or ethnicity to any6degree. So I assumed that that was a given. That may7have been a bad assumption, both as a matter of law and8otherwise, but that’s -- I just assumed that when you9say constitutional, it means in every respect.10

MR. WEBER: So you were asked to testify by11DAG Fahy in connection with the Soto matter to explain12to the Court what the word “profile” meant in13connection with the action.14

THE WITNESS: That’s right. The distinction15between a legitimate profile, sometimes called modus16operandi, and illegitimate profiles, which would be17based on race ethnicity or national origin.18

MR. WEBER: How long was your testimony in19that case?20

THE WITNESS: It started -- I was supposed to21be there in the morning. It was one day, but up to22lunch didn’t get on. We were in the -- I was in the23jury room waiting so...24

MR. WEBER: You testified for an hour, two25


hours, three hours?1THE WITNESS: Maybe two hours.2MR. WEBER: Were you -- strike that.3Did you testify about any other issues in4

addition to the one that you just identified?5THE WITNESS: The training that I provided, I6

suppose. You know, that was consistent with that, but7I’d say that was all related.8

MR. WEBER: Any other issues?9THE WITNESS: Not that I recall offhand.10MR. WEBER: Was that the only involvement you11

had in the State v. Soto litigation?12THE WITNESS: Yes.13MR. WEBER: That as a witness?14THE WITNESS: Yes.15MR. WEBER: And when I say in the State v.16

Soto litigation, I mean from the time that commenced17until the time that the Attorney General’s Office18decided to withdraw its appeal?19

THE WITNESS: Correct. I was a witness. I20was sequestered.21

MS. GLADING: You testified that when you22testified in the Soto case, you testified because there23was widespread confusion about what was permissible and24what was impermissible?25


THE WITNESS: Well, apparently Jack Fahy was1giving me the impression that the defendants in that2case, the defense counsel, were arguing that the3statewide Action Plan was some kind of smoking gun that4proved that we were profiling. And the answer is well,5yes, we were designing profiles or we were planning to6design profiles, but that they’re race-neutral, there’s7nothing wrong with that.8

MS. GLADING: So the confusion was by the9defendants?10

THE WITNESS: The confusion -- well, the11confusion continues to this day over the definition of12the word “profile,” “racial profiling.”13

MS. GLADING: What year did you testify?14THE WITNESS: Let’s see. The decision was in15

March of what, ‘96? 16MS. GLADING: ‘96.17THE WITNESS: It was either ‘95 or ‘96. I18

mean it was an elaborate proceeding with lots of19delays. It might have been late ‘95.20

MS. GLADING: Did you take any steps21afterwards to try to clarify the confusion that might22be going on in State Police training?23

THE WITNESS: Yeah. Well, yes.24MS. GLADING: Prior to the decision?25


THE WITNESS: Not prior to the decision.1MR. WEBER: Mr. Susswein, I just put in front2

of you a new document, OAG004192 through OAG004196. 3It’s dated March 28th, 1996. It is a memo from4Detective Gilbert via several individuals of the State5Police, ultimately to Colonel Williams, and the subject6is the Gloucester County suppression decision/revision7concerns and potential remedies. Have you ever seen8this document before?9

THE WITNESS: Recently.10MR. WEBER: In preparation for today’s11

deposition?12THE WITNESS: Not so much for today’s13

deposition, part of projects I’ve been working on with14the 90,000 pages that were released.15

MR. WEBER: Actually, that reminds me. We’ll16come back to this memo in a second.17

Were you at all involved in the Attorney18General’s Office’s production of the, it’s now -- we’re19now at approximately 95,000 pages of documents?20

THE WITNESS: I was asked to turn over mine.21MR. WEBER: You were asked to turn over22

yours. Did you have any other involvement in the23collection and production of those documents?24

THE WITNESS: No, other than I’ve been asked25


to write some materials, like a Law Review article.1That some of that information I got access to.2

MR. WEBER: And what is the subject matter of3the Law Review article?4

THE WITNESS: Racial profiling.5MR. WEBER: Have you released the Law Review6

article yet?7THE WITNESS: No.8MR. WEBER: When is it set to be published?9THE WITNESS: It’s set to be published -- I10

don’t know. It is due this week.11(Laughter)12

MR. WEBER: I’ll try and speed this along.13And I take it it will be a very short note14

based upon some of the prior memos that we’ve seen from15you.16

THE WITNESS: That may be not one of your17better assumptions.18

MR. WEBER: When did someone contact you19about making your files -- when were you first20contacted about making your files available for21document production purposes?22

THE WITNESS: I’m not sure of the exact date.23MR. WEBER: As best as you can recall.24THE WITNESS: Fall, late fall of last year.25


MR. WEBER: Of 2000?1THE WITNESS: Yes.2MR. WEBER: Did anyone contact you in3

connection with the U.S. Department of Justice’s4inquiry into the issue of racial profiling? Which I’ll5represent to you began in December of 1996 and then6sort of ebbed and flowed for several years thereafter. 7Did anyone contact you in connection with the8Department of Justice’s request for documents to make9your files available for that purpose?10

THE WITNESS: I was not even aware of the11Department of Justice’s inquiry until after the interim12report. Just about the time we were writing the13interim report when I became involved with negotiating14with the Justice Department, which is ‘98.15

MR. WEBER: Right. Let’s go back --16MS. GLADING: Excuse me. Is that ‘98 or ‘99?17MR. WEBER: Oh, no, ‘99.18THE WITNESS: ‘99, excuse me. Right. 19

Whatever the period after my assignment to be involved20with the interim report, that was my first entree --21

MR. WEBER: So April of ‘99?22THE WITNESS: March.23MR. WEBER: March, okay.24THE WITNESS: Yeah.25


MR. WEBER: Let’s go back to this memo now, 1OAG004192 through 4196. 2

On the second page it sets forth that on3Monday, March 25th Lieutenant Colonel Littles chaired a4meeting attended by the following: Captain Brennan,5Captain Touw, Sergeant First Class Blaker, Detectives6Reilly and Gilbert, Trooper K. Dipatri, D-i-p-a-t-r-i,7as well as John Fahy and Ronald Susswein of DCJ. The8purpose of the meeting was to address the issues raised9by Judge Francis and that again is in connection with10the Soto decision. And then set forth below are those11concerns and the responses which we have initiated. 12How is it that you were assigned to be part of this13committee?14

THE WITNESS: One of the big issues was15training; explaining what the law is, what the law16isn’t. And I was assigned by Director Farley to assist17the State Police. It was a rare opportunity to have an18entree into their training procedures.19

MR. WEBER: Why do you say it was a rare20opportunity to have an entree?21

THE WITNESS: There hadn’t been much of any22coordination between the lawyers and the State Police23on search and seizure issues.24

MR. WEBER: By whose choosing?25


THE WITNESS: Whose choosing? I wasn’t --1none of us at CJ were invited into the process.2

MR. WEBER: Do you know if CJ or the Attorney3General’s Office in general had reached out at any4point to the State Police to say hey, we’re available,5we’d like to help you with your training, or something6to that effect?7

THE WITNESS: No, I didn’t -- in terms of8helping out on training, I was always doing that in9that they would give me date, I would show up. I would10do the training.11

MR. WEBER: Well, how about to get a little12more deeply involved in the training to either review13course materials, revise course materials, things to14that effect?15

THE WITNESS: Reviewing, no. The State16Police --17

MR. WEBER: I’m sorry, you said reviewing --18THE WITNESS: Reviewing course material -- we19

reviewed, up until recently, we reviewed nothing. We20saw nothing. The State Police is very fiercely21independent. They resisted scrutiny, much less22supervision on legal issues like this.23

MR. WEBER: Were there attempts made, as best24as you know, by the AG’s Office to say we want to25


review your materials, please provide them for us?1THE WITNESS: From my perspective in Criminal2

Justice, I’m not aware of any.3MR. WEBER: How about just from the Attorney4

General’s Office?5THE WITNESS: I was in Criminal Justice, I6

have no idea what they were doing.7MS. GLADING: Did you ever raise concerns8

with your superiors or with the Office of the Attorney9General about your feeling that there was a need to10review State Police materials, training materials?11

THE WITNESS: I very often would comment,12especially to Terry Farley, of the need to enhance13training. Not so much to review -- that was not --14reviewing their materials wasn’t, I don’t think, an15option, given the relationship between the two16agencies. What was an option was encouraging them to17do more training. There had been a budget crunch and18what happened was a lot of troopers were on the road19for a long time. They didn’t -- there weren’t classes20backing them up, you know, new recruits coming in. And21the law of search and seizure during the early22nineties, and throughout the nineties, was really23changing. I mean there were just a lot of significant24new decisions, especially from the New Jersey Supreme25


Court. More and more it was diverging from -- more1often it was diverging from the U.S. Supreme Court. 2And I was very concerned that we were just not doing3the job on in-service training, keeping people who were4out on the road, and this is true of locals as well, up5to speed with these new developments.6

MR. WEBER: Well, if, and I don’t mean to be7flip in this question, but if you were not given an8opportunity to review the training materials that the9New Jersey State Police had put together themselves,10how did you then have an idea or belief that their11training materials need to be enhanced?12

THE WITNESS: I don’t know that the training13materials needed to be enhanced. I don’t think they14were providing enough training. 15

MR. WEBER: And again, how did you know or16how did you come to believe that they were not17providing enough training if you didn’t know what, in18fact, they were training the cadets and local law19enforcement about?20

THE WITNESS: Because there were so few21courses that were being offered on in-service training.22

MR. WEBER: So you knew what the topics were23of the courses, but didn’t necessarily know what the24substance --25


THE WITNESS: Right.1MR. WEBER: -- what the substantive material2

was?3THE WITNESS: And this was true of the4

locals, too. I was hearing -- even when I was in Union5County, officers were asking -- and search and seizure6training is boring. I mean when you sit and listen to7me for, you know, for three or four hours, and yet8there was this demand for more training. And when9officers asked for training from a lawyer, you’ve got10to take note of that because that is not the normal --11and this isn’t, you know, Star Wars type of interesting12listening. 13

MR. WEBER: Well, we’ve been going for almost14an hour now and I’m still interested so...15

We’ll see where we are in two hours.16MS. GLADING: It sounds like this was an area17

of great concern of yours. Who did you raise it with?18THE WITNESS: Oh, everyone. You know, Terry19

Farley, Don Belsole before. That’s why I was doing the20training for the State Police. There’s just this21tremendous need. One of the issues is that in New22Jersey, and remember, I’m involved in policy, I mean23that’s my field, looking for problems, looking at24problems, trying to solve them. We have a Police25


Training Commission that does a fabulous job on basic1training, have it routinized, having it meet a certain2standard. There is no similar component for in-service3training. So advanced or intermediate training. You4come out of an academy and in most departments you can5go through the rest of your career and not be required,6a phrase that you used before, to actually attend legal7training classes, with the exception of domestic8violence -- the statutes, domestic violence and use of9force and high-speed pursuits. 10

MR. WEBER: The memo that we have in front of11you, on the third page, OAG4194, the first full12paragraph sets forth that “In light of the Gloucester13County decision, several changes are proposed. First,14it will be necessary to continually stress compliance15with SOP F3 when calling in stops. This will include a16dual responsibility of that of the trooper in calling17in his/her stops, and the individual memorializing the18stop on the radio log.” 19

I take it there was discussion at this, and20I’m just going to use the word “committee,” just so we21all understand. I don’t know if it was an official22committee or not, but the committee is the individuals23that we identified before, Captain Brennan, Captain24Touw, Blaker, Reilly, Gilbert, Dipatri, Fahy and25


Susswein. There was, I take it, discussion at this1committee meeting about non-compliance with SOP F3, is2that correct? 3

THE WITNESS: Yes.4MR. WEBER: What do you remember about that5

discussion?6THE WITNESS: Well, my focus was on the7

training, but one thing that I -- when you read Judge8Francis’ decision, one of the things that killed the9State in the litigation was the missing data. And10there was an elaborate discussion. I was -- I didn’t11understand most of it, frankly, but an elaborate12discussion on how we were going to capture the data13that had been missing, because that was just a problem14during the litigation. Then there was discussion of15whether -- checking for patrol logs or radio logs, and16I didn’t understand that, but I did emphasize at the17meeting, because as a search and seizure instructor18that the tide had turned against law enforcement in the19courts and that Soto was an example of that. That we20had a duty and a burden, to use a lawyer phrase, a21burden to document what we were doing. And when we22failed to do that, we would be in trouble because23inferences would be drawn against us.24

MR. WEBER: What type of information did you25


advocate needed to be documented?1THE WITNESS: Well, this particular2

conversation was about calling in the race of the3motorists.4

MR. WEBER: The driver and the occupants?5THE WITNESS: Yes.6MR. WEBER: Was there discussion at the7

meeting about compliance levels with SOP F3 within the8road trooper community?9

THE WITNESS: I remember there was -- again,10it wasn’t my focus for being there, but there was a11discussion that there was no reason there shouldn’t be12complete compliance and they were trying to figure out13how do you accomplish that. 14

MR. WEBER: Was there any discussion about15trying to address the issue of the missing data by16actually compiling data for the committee’s review? 17Affirmatively going out and collecting information and18doing your own statistical analysis?19

THE WITNESS: No. And you had already 20mentioned, in fairness, calling it a “committee.” I21mean maybe they met other times and I’m not aware of22it, but the Lieutenant Colonel, the Executive Officer23was there and presumably if he wanted anything24collected, he just had to give the order. But I don’t25


recall a discussion of doing -- the issue wasn’t how to1collect more data for its own sake, it was they2believed, we all believed at the time that Judge3Francis had been wrong. And the question was, and I4kept using the phrase “burden shifting,” because I5still to this day believe a Batson v. Kentucky analysis6is what’s going to ultimately win the day, you know,7five years from now when the Supreme Court sorts all of8these issues out. And the question was, we were going9to have the burden. That’s not necessarily the law10right now, but I think it will be. We’re going to have11the burden of explaining what was happening and that12means we have the duty to document. And that’s one of13my themes in search and seizure training is report14writing. It’s documenting why you made the decisions,15the discretionary decisions you made.16

MR. WEBER: Was there any discussion at this17first meeting about the difference between stop data18and consent to search data?19

THE WITNESS: No, not that I’m aware of. 20Everyone was focusing then on the Soto decision, which21was stop data.22

MR. WEBER: Who, and I may have asked this23question, if I did I apologize, who specifically24assigned you to be a member of this Committee?25


THE WITNESS: One, I don’t believe I was a1member of a committee. I remember being asked --2

MR. WEBER: Well, just committee for the3purposes of today.4

THE WITNESS: I went to two meetings. I went5to two meetings over at State Police headquarters. 6Whether I was assigned or simply Jack asked me and I7told Terry Farley that I was heading out there. It8wasn’t a formal assignment as far as I was concerned. 9And there was very little follow-up to it.10

MR. WEBER: Did you -- you anticipated my11next question. Did you have any affirmative chores,12for lack of a better phrase, things that you had to do13and then report back to this group of people about --14

THE WITNESS: Report back to the group, no. 15I mean again, I was there for training. And we were16supposed to develop a half-day course. That fell17through eventually. But what did come of this, and my18rule was I was invited to be, which is kind of nice, I19was invited to be on what’s called a search and seizure20review board, to be the legal advisor. And that was my21entree to write for them. They came out with some22quarterly -- they might have been monthly, but I think23they were quarterly publications or newsletters, and I24wrote a number of the articles in the first issue and25


the entire second issue. So that was a method for1getting the word out to the troops.2

MR. WEBER: Who formed the search and review3committee?4

THE WITNESS: It was the State Police. It’s5called the Search and Seizure Review Board.6

MR. WEBER: Pre-existing? You know, prior to7the Soto decision?8

THE WITNESS: You know, I think it was but 9I -- they may have mentioned that, that they were -- I10may be getting that out of a memo here, that they were11resuscitating it.12

MR. WEBER: Okay.13THE WITNESS: I had not been involved14

previously and then I became -- I think I still am,15although we haven’t met.16

MR. WEBER: And what was the, as you17understood it, the purpose of that Search and Review18Committee?19

THE WITNESS: It was to come out with this20newsletter, publication.21

MR. WEBER: For what audience was the22publication directed?23

THE WITNESS: Well, it was for troopers --24MR. WEBER: Okay.25


THE WITNESS: -- but it was available to the1entire law enforcement community. I mean copies were2sent out to all the police chiefs and county3prosecutors. But the target audience were State4Troopers.5

Was there a discussion at this first meeting6as to what each individual’s responsibilities would be?7

THE WITNESS: Not that I recall. Again, I8was focused on what I would be asked to do on the9training.10

MR. WEBER: Was there -- strike that.11Did you report back to anyone at the Attorney12

General’s Office about what occurred at this meeting? 13And if so, who?14

THE WITNESS: Not that I recall. I didn’t15send any memos or anything. I would have told Terry16Farley I was being invited to be on a Search and17Seizure Review Board and a formal letter was indeed18sent from the Colonel requesting that.19

MR. WEBER: But after the meeting, did you20report back to anyone at the Attorney General’s Office21about what transpired at this meeting?22

THE WITNESS: No.23MR. WEBER: Anybody ask you? I mean I would24

assume that this -- the Soto decision, I take it, was,25


for lack of a better phrase, an important development1or an important issue for both the State Police and the2Attorney General’s Office to deal with in March of31996, correct?4

THE WITNESS: Oh, absolutely.5MR. WEBER: Okay. And it was important6

enough for a group of individuals to get together with7Lieutenant Colonel Littles chairing the meeting that8included members of the State Police and members of the9Attorney General’s Office, correct?10

THE WITNESS: Yeah.11MR. WEBER: Okay. And as best as you can12

recall, you didn’t report back or no one at the13Attorney General’s Office asked you, you know, hey,14Ron, what happened at that meeting?15

THE WITNESS: Again, I may have spoken to16Terry about we have an entree into training and to17working with the State Police on training, but I wasn’t18involved in responding to Soto per se. There were19other people who were working on the litigation.20

MR. WEBER: Was there any effort to21coordinate what the people on litigation were doing22with what you were doing in your involvement in this23committee?24

THE WITNESS: The only thing I was doing on25


the committee was training, and I don’t know who I1would coordinate that with.2

MR. WEBER: Do you know if anyone reported to3the Attorney General that this group of individuals had4been put together to address the issues set forth in5Judge Francis’ opinion?6

THE WITNESS: I’m sorry, what --7MR. WEBER: Do you know if anyone reported to8

the Attorney General that there was a group of9individuals that was put together, consisting of10members of the State Police and members of the Attorney11General’s Office, to address the Soto decision?12

THE WITNESS: Well, I have learned13afterwards, as part of my review of documents recently,14that there were memos and whatever that were going to15people up through the chain-of-command to the Attorney16General -- or at least the Attorney General’s Office.17I wasn’t aware of that then.18

MR. WEBER: I show you another document, 19OAG004197 through 004201. It’s an interoffice20communication from Detective Gilbert up through the21chain-of-command to Colonel Williams, dated April 17,221996. The subject is racial profiling issues. Under23Roman numeral II on the first page it states,24“Detective Reilly, Trooper Dipatri and Assistant25


Director Susswein are developing a one-half day1training session. All the training will address the2Gloucester County decision that has impact on policy3and procedures. The primary goal will be to focus on4current search and seizure case law. To present these5issues in a positive light, the training will highlight6what a trooper can do as opposed to what he/she can’t.”7

I take it that that was your suggestion,8consistent with suggestions you made in the past,9telling the troopers what they can do so that there is10no implicit authority or there’s no discretion that11would then give them an opportunity to do something12improper?13

THE WITNESS: Yeah. My view of training,14having done a lot of training, there’s certain times15you have to tell an audience what you can’t do. I mean16it’s just -- but that’s very negative and to build17credibility with the audience, what you want to do is18tell them not only what they can do, but best practices19-- I shouldn’t use the word “best practices,” it’s20become an AOC term that has its own meaning, but the21best way to do something. What you should do. And I22very much like that kind of training. What’s the right23way to do a stop.24

MR. WEBER: The second page, OAG004198, under25


the heading, “Meeting of April 12, 1996, states that1“Lieutenant Colonel Littles chaired a meeting attended2by Captains Brennan and Touw, Detectives Reilly and3Gilbert, Trooper Dipatri and J. Fahy and Ron Susswein4of DCJ.” 5

If you look down under the Gloucester County6appeal, then the next paragraph, it states in part, “If7the appeal is successful, the next phase will most8likely involve a remand where each individual case is9heard. Fahy noted that should this happen, the10individual troopers may be subjected to intense11scrutiny in respect to training discipline and a12statistical review of their enforcement patterns,13including race. Should such a public review prove14unfavorable, the Division could be further damaged and15the individual trooper suffer significant harm to their16credibility and standing before the court. As a17result, it was agreed that a review would be initiated18of the 19 Moorestown NJSP cases to ascertain which19troopers were involved. Once identified, an analysis20of their activity will be conducted to identify any21potential negative issues, should they be called upon22to testify. If this review uncovers substantial23problems, it will be recommended that additional24thought be given to proceeding with the appeal.”25


Do you remember that discussion?1THE WITNESS: Not specifically, no. I’m not2

denying that it happened, but I wasn’t that concerned3with the appeal.4

MR. WEBER: Do you remember who was assigned5to review the 19 Moorestown NJSP cases to ascertain6which troopers were involved and then conduct an7analysis of their activity?8

THE WITNESS: No.9MR. WEBER: Do you know who took the lead on10

this discussion or this suggestion?11THE WITNESS: Well, I know that Jack was the12

lawyer who was handling -- actually, I don’t know that13he was handling the appeal, but he was sort of14explaining it to them, how the appeals process would15go.16

MR. WEBER: Do you remember whether he made17the suggestion that an individual analysis should be18conducted of the 19 cases?19

THE WITNESS: I really have no recollection20one way or the other.21

MS. GLADING: Do you recall that meeting --22I’m looking at the bottom of OAG4198, the second page. 23Do you recall Littles advising that DAG Fahy should24rely upon Detective Gilbert as his State Police contact25


for any help he needed?1THE WITNESS: I have no, you know,2

recollection. It makes perfect sense, but -- I’m3assuming it’s true because it’s written here, but I4don’t remember --5

MR. WEBER: Why does it make sense?6THE WITNESS: Because Tommy Gilbert was the7

liaison to Jack.8MR. WEBER: On the next page, top of the next9

page, it says, “Since the Gloucester County decision,10additional defense efforts have appeared. In light of11the Gloucester County case, DAG Fahy and Assistant12Director Susswein noted that it is unlikely that any13judges will be summarily dismissing defense claims of14profiling. As a result, there will probably be a15number of attempts to secure State Police records and16statistics to support those claims. Presently defense17efforts have commenced in several venues, including...”18and then it details the different venues.19

Do you remember that discussion?20THE WITNESS: Yup. I remember saying the --21

again, this is that the tide had turned. And that22there was a chink in the law enforcement armor. We23weren’t going to be able to just say it doesn’t happen. 24We’re going to have to document the reasons for the25


exercise of our discretion.1MR. WEBER: That is for future activity,2

correct?3THE WITNESS: But that was my focus. My4

focus wasn’t -- again, I wasn’t involved in this5litigation because I had been a witness. I didn’t6think that was appropriate as a policy guide. My job7was to turn -- and I used this phrase in the earlier8deposition, “turn lemons into lemonade.” We have this9problem, we lost this case in the Trial Division. How10do we move forward? And I was using that as an entree11to improve, not only selective enforcement issues, but12also all Fourth and Fifth and Sixth Amendment issues. 13And just let’s get it out there, let’s make certain14that everything is done right. That discretion is15channeled and documented.16

MR. WEBER: You previously testified today17that you had disagreed with Judge Francis’ decision as18did many other people at the Attorney General’s Office. 19Why is it then that if there was widespread20disagreement, and if it wasn’t widespread you’ll21correct me, but I’m assuming that it was widespread22disagreement within the Attorney General’s Office,23about the findings of Judge Francis, why is it that24then all these suggested changes were being made for25


things to do on a go-forward basis.1THE WITNESS: Well, you can disagree with an2

opinion, and again, he was relying on stop data. I was3reading about it in the papers, frankly, because I had4been sequestered. I wasn’t meeting with any witnesses5or anything, but I thought the stop data and the6benchmarks weren’t necessarily compelling or7conclusive, but clearly a judge had made a finding of8racial profiling. We had to move forward from that. 9How were we in this climate of increasing judicial10skepticism, how were we going to -- to use my Batson v.11Kentucky analysis, how were we going to document that12this isn’t happening? And that’s consistent with13Fourth Amendment training, which is documenting the14reasons for your decision. We call it reasonable15articulable suspicion, for example, meaning that I have16to -- I have to articulate the reasons why we17suspected. This is not new.18

MR. WEBER: Was there any discussion about if19the State prevailed at the appeal, what would then be20done with all these suggested changes? I mean would21they be scrapped?22

THE WITNESS: I don’t recall any discussion23along those lines.24

MR. WEBER: The last page, OAG004201, there25


is discussion about it being imperative that the1Division provide better training concerning search and2seizure issues and application. In recent years this3form of training has been almost non-existent. How did4this committee of individuals find out that that form5of training had been almost non-existent?6

THE WITNESS: I didn’t write this memo, but I7did make the point at the meeting that we need to do8more training, because I know my experience dealing9with local police when I was in Union County, for10example. There wasn’t enough training going on. And I11assume I was getting feedback during the meeting that12he’s right, that the in-service, the annual in-service,13just isn’t up to speed in keeping up with new14developments in search and seizure law.15

MR. WEBER: Was there someone at this meeting16from the New Jersey State Police who was sort of your17counterpart on the issue of training?18

THE WITNESS: At the meeting, I really don’t19recall.20

MR. WEBER: At any of these meetings. Was21there one or more individuals out of the list of22individuals identified in this memo when the issue of23training was discussed sort of presented information24from the State Police on the issue of training?25


THE WITNESS: I don’t know that they were at1this meeting. I’m not sure who my counterparts would2have been, since my own role was unclear. I’m not sure3who the counterpart would be. I may not be4understanding the question.5

MR. WEBER: Well, you had said at some point6in this meeting someone discussed the lack of training7available on this topic by the State Police. And I’m8trying to help you with your recollection as to who9that person may have been. I mean it’s clear from your10testimony that your focus was training. And it’s also11clear from your testimony that Jack Fahy’s focus was12how to address the State v. Soto decision, correct? 13Because he was --14

THE WITNESS: I think that sounds fair. I15mean I don’t know what his whole role was.16

MR. WEBER: Okay. Right. But that was17clearly one of his focuses. I mean you were a witness18so you weren’t -- I mean you’ve made it clear today19that you really weren’t involved --20

THE WITNESS: Right.21MR. WEBER: -- in the issues that pertained22

specifically to Soto.23THE WITNESS: To that litigation, right.24MR. WEBER: What I’m trying to do here is25


help you recollect, if possible, who amongst the1individuals from the State Police would have been2focused on the issue of training.3

THE WITNESS: I really don’t recall. I mean4this language which I read, you know, recently is part5of a document review, document dissemination. It6sounds like me in terms of my venting at a meeting and7I’m getting the impression -- well, I know they agreed8with that because they formed the Search and Seizure --9or revised the Search and Seizure Review Board. But I10don’t recall specifically who at this meeting said he’s11right, we’ve got to do more search and seizure12training.13

MS. GLADING: Who did you follow up with?14THE WITNESS: Actually there was almost no15

follow-up on this in terms of the -- there’s reference16to here and there was talk of a half-day training17course. I don’t believe that ever happened. What did18happen as a follow-up was I did become the legal19advisor to the Search and Seizure Review Board. I did20write a number of articles for them, including on the21subject of racial profiling and that you’re not allowed22to consider race. So that was my follow-up. The23actual training I don’t think happened in the way that24it’s described in this memo.25


MR. WEBER: Do you know why?1THE WITNESS: I don’t know why. It just fell2

through obviously, but I don’t know why.3MR. WEBER: The last paragraph it details a4

discussion about the Division awards program. Do you5remember that discussion?6

THE WITNESS: Not specifically, no.7MR. WEBER: Did you have any concern that the8

Division awards program may have prompted individuals,9road troopers, to be concerned more about quantity over10quality?11

THE WITNESS: I’ll tell you what my concern12then and now is, that when you -- if you’re going to13give an award for being aggressive in terms of14searching, you’ve got to be absolutely certain that the15search and everything leading up to it was done right. 16

MR. WEBER: Did you express that opinion at17this meeting?18

THE WITNESS: Always. You can’t be rewarding19-- I have no problem with rewarding aggressive behavior20if it’s done constitutionally. But you can’t not be21examining whether or not the conduct was lawful.22

MS. GLADING: On the fifth page -- the fourth23page if this memo OAG4200, there’s a discussion of24inspection audits. 25


THE WITNESS: Yes.1MS. GLADING: Do you see that? What do you2

recall about the discussion of inspection audits at3that meeting?4

THE WITNESS: It really meant nothing to me5then. Again, I was just -- I had my blinders on, I was6concerned with training and also the need to document7what we were doing. If that’s what an inspection8audit, designing a system for collecting data, then I9remember that discussion. If it meant looking back or10if this was part of looking at those troopers in the11Soto case, it really just went over my head. I wasn’t12focused on it.13

MS. GLADING: Okay. But in the discussion of14documenting what we’re doing, what do you recall about15that? How was that going to be documented?16

THE WITNESS: What I wanted was, first of17all, the racial descriptions had to be 100 percent18documented what you were doing. And frankly, I also19wanted and I had developed a Union County stop and20frisk check list which became something we did later21for the Review Board. I wanted to know, to be able to22document every act that was done during a road stop. 23Make certain it was being done correctly as a hedge24against the burden being shifted to us, to explain what25


we were doing.1MS. GLADING: Was there a discussion about2

the need to be able to counter the kinds of statistics3the State had to fight in the Soto case?4

THE WITNESS: Absolutely. And that was the5thing. The only way to counter it is to have no6missing data. The data would speak for itself. One7can argue, one can continue to argue what data means,8but one of the things in Judge Francis’ decision -- I9remember making this point backing Jack up in this,10when you have missing data, if you have a directive or11an SOP that says you will call in the stop and you12don’t and now you have missing data, that supports an13inference that there was some intent behind that, that14that wasn’t just an inadvertent mistake. And that15kills you at litigation.16

MR. WEBER: Was there any discussion amongst17the group that we need to go back and try and collect18whatever information we can to fight that inference19that you just talked about?20

THE WITNESS: Future -- at least my thinking21was in future. And I referred them again the Batson22case. As Batson notes, the same way that you and I as23lawyers were when we -- well, I don’t do this, but -- 24

MR. WEBER: Jury selection.25


THE WITNESS: -- jury selection, that you1write down briefly your reasons for what you did in the2event that a pattern should develop and the burden3shifts, to explain it. And how are you possibly going4to explain why you knocked off juror number 20 two5years from now --6

MR. WEBER: Right. No, but --7THE WITNESS: -- without those notes?8MR. WEBER: And I think we all in this room9

appreciate that your focus was on going forward.10THE WITNESS: I’m a policy want, that’s what11

I do.12MR. WEBER: Right. My question is, was there13

any discussion that you remember amongst the14individuals on this committee about addressing what15happened in the past and going back and trying to fill16in the gaps to try and find this missing data to then17conduct an analysis with the hopes that you can then go18back to the Court and say hey, look, we found the stuff19and guess what? the statistics presented by the Public20Defender are inaccurate.21

THE WITNESS: I don’t recall that ever -- the22case of it going on for three years or four years, I23don’t -- I think we had plenty of opportunity to have24done that.25


MR. WEBER: Was there any discussion that the1reason why that data may not have been collected in the2first instance was a fear that the results of that data3would have been grim?4

THE WITNESS: No. It was -- keep in mine5everyone at this meeting believed fervently -- in fact,6on the State Police side I would describe it almost as7chest-thumping, we do not engage in racial profiling. 8Now, there was an enormous issue comes up later, I’m9sure you’ll ask about it in terms of the definition of10racial profiling, but at that meeting or the two11meetings I attended, it’s we don’t do this. And then12my position was, well then how are you going to collect13data to show that?14

MR. WEBER: How are you going to prove a15negative, in other words.16

MS. GLADING: Okay. I want to bring your17attention back --18

THE WITNESS: I guess it is, yeah.19MS. GLADING: -- to this paragraph,20

Inspection Audits. It discusses a prospective21collection of this data, analysis of this data, the22need to spot problems or potential problems of23individual troopers by monitoring this data. Is that24your recollection of what was discussed at that25


meeting?1THE WITNESS: Again, I’m not denying that was2

discussed, it just didn’t at the time, that wasn’t what3I was there for so I wasn’t involved in that.4

MR. WEBER: Well, you know, from a policy5standpoint, did you have a concern how these future6actions, this future policy, might be impacted by the7collection of information in connection with these8audits that are being discussed in the memos we’ve9reviewed?10

THE WITNESS: I just assumed that you had --11the SOP said you had to record the -- they had to do12that. Whatever -- if by inspection audit it meant13having that information, they were supposed to have it. 14And we were going to need it in court for future15purposes. Otherwise statisticians are drawing from the16missing data all sort of inferences, that the data is17missing for a reason. That it’s some kind of18concealment.19

MR. WEBER: Jo, do you have anymore questions20on that document?21

MS. GLADING: No, thank you.22MR. WEBER: Okay. New document, Mr.23

Susswein, OAG000502 through 503, April 19, 1996 memo24from John Fahy to Terry Farley. You, along with Alex25


Waugh and James Ciancia, are cc’d. Do you know why you1were cc’d on this memo?2

THE WITNESS: Well, it talks at the end with3the search and seizure training program with the Review4Board.5

MR. WEBER: There is under Page 2, captioned6Roman numeral II, State Police, the following7statement: “The committee was formed by Lieutenant8Carl Williams to provide a,” and that’s a typo,9“institutional response to the Gloucester County10ruling. Lieutenant Colonel Val Littles chairs a11committee which also includes representatives from the12Internal Affairs Bureau, Training Bureau and the13Affirmative Action Committee. AAG Susswein and I also14attend meetings at the request of State Police and our15input has been encouraged.”16

Was this unusual for the input of members of17the AG’s Office to be encouraged by the State Police?18

THE WITNESS: Yes.19MR. WEBER: Why is that?20THE WITNESS: Other -- I mean I had good21

relations, that they were always asking me to do22training episodes for them, training sessions. But it23was very rare, if not unheard of, for lawyers to be24invited into a process of policy-making or design. It25


just didn’t happen.1MR. WEBER: In general, how were you and Jack2

Fahy perceived by the representatives of the State3Police?4

THE WITNESS: I recall perfectly cordial and5very positive.6

MR. WEBER: Did you get a feeling that lip7service was sort of being paid to your suggestions, or8that they were actually listening and constructively9acting on the decisions that you or the suggestions10that you and Jack Fahy had made at those meetings?11

THE WITNESS: I didn’t get that impression at12the time, no. I thought everything was being done open13and in good faith and again, they were very receptive14to my suggestions on training, that they needed more15training, better training.16

MR. WEBER: There is on the first page, the17second paragraph, some discussion about buying some18time while other efforts to resolve this matter which19we discussed are pursued. Do you recall being involved20in any discussions about buying time to pursue other21avenues of resort to resolve the issues encountered in22Hunterdon County and elsewhere?23

THE WITNESS: No. I mean obviously I did24receive this memo. I’m assuming I received it because25


of the second part and I never received any other1correspondence on the litigation, the handling of it.2Jack just happened to cover two issues in the memo, 3but...4

MR. WEBER: Did you ever express to Jack or5anyone else that issues that deal with Soto and the6other racial profiling suppression cases or cases that7were related to racial profiling and suppression of8evidence, that that information should be segregated9out from the information that’s provided to you because10you were a witness and because you were --11

THE WITNESS: Well, this is much later. I12mean I had testified. I’m not hiding behind the fact13that -- I was sequestered when they were taking14testimony, which went on for many, many days I recall,15but I just happened not to be involved in any of the16litigation decisions. I don’t want to say that it17would have been improper for me to have commented, I18just didn’t.19

MR. WEBER: A document for you, Mr. Susswein,20GC002853 through 2855. It’s a May 21st, 199621interoffice communication, again from Detective Gilbert22up the chain-of-command to Colonel Williams. The23subject is committee meeting of May 16, ‘96,24discussion/recommendations regarding profiling and25


enforcement issues. And it states in the first1paragraph that “On May 16, 1996 a third committee2meeting was held to address the Division’s,” it’s with3a capital D, “response to allegations of profiling and4discriminatory enforcement patterns.” And then the5usual suspects were present, including yourself and6SDAG Fahy.7

The second paragraph states, among other8things, that “Although there have been a number of9documents and directives distributed concerning the10Gloucester County decision and its implications, there11remains a perception among certain personnel that the12Division has overreacted and is allowing ‘the tail to13wag the dog.’”14

Do you remember who at the meeting expressed15this perception of the tail wagging the dog?16

THE WITNESS: I don’t even really remember17this meeting. I mean I’m not denying that I was there,18but I have no recollection of these being distinct19meetings.20

MR. WEBER: Do you remember a discussion at21any of the meetings that there was a perception among22certain personnel that the Division of State Police is23overreacting and is allowing the tail to wag the dog?24

THE WITNESS: There is no question, and I25


think I referred to it a few moments ago, as chest-1thumping, that there was by the State Police this2notion that that was just a wrong decision. That the3Judge was in error. And that it should be contested.4

MR. WEBER: Well, when you say “chest-5thumping,” was there chest-thumping from any of the6individuals who were part of this committee, or were7they relaying to you the sentiments of other8individuals in the State Police who were chest-9thumping?10

THE WITNESS: It would be hard for me to11know. All I know is there was a general consensus12among the State Police that Judge Francis was wrong.13

MR. WEBER: Including the members of this14committee who were a part of the State Police?15

THE WITNESS: Yeah. 16MS. GLADING: Was there any difference17

between their position on Judge Francis’ opinion and18the Attorney General’s position and your position and19DAG Fahy’s?20

THE WITNESS: I really didn’t have a position21on State vs. Soto. I just wanted to move forward. We22had to collect data because my analysis -- and by the23way, I think this was -- it turns out to have been a24disagreement with other people in the Division of25


Criminal Justice. I may be wrong as a matte of law. I1thought the issue was going to boil down to burden2shifting. And that statistical anomalies, after some3battle of experts, were going to shift the burden to us4to explain any glitches or anomalies; deviations from a5benchmark, whatever you might want to call that.6

MR. WEBER: Can we go off the record for a7moment, please?8

(Off the record)9MR. WEBER: Mr. Susswein, before the break,10

we were discussing the May 21st, 1996 office11communication from Detective Gilbert to Colonel12Williams, GC002853 through 2855. And we just finished13discussing the concept of the tail wagging the dog.14

THE WITNESS: Yes, sir.15MR. WEBER: Or at least the perception by16

some that the tail was wagging the dog.17I’d like to direct your attention to the18

second page of the document, the paragraph up at the19top. The last sentence states, “AAG Susswein and SDAG20Fahy noted the Division will be better served by the21production of accurate statistics as opposed to the22defense’s utilization of speculative hypotheses and23formulas.”24

Again, and I just want to go back to some of25


your prior testimony. Your focus was not on the Soto1case, but this appears to be talking about ways to2combat what -- or the evidence that the defense3presented in the Soto case.4

THE WITNESS: In future cases.5MR. WEBER: In future cases. Okay. So this6

was in contemplation of if we get future motions in7other cases, this is a way to sort of knock ‘em out of8the box right off the bat.9

THE WITNESS: Yes.10MR. WEBER: Were you involved in any of the11

suggestions or discussions concerning document12retention policies and extending the document retention13policies?14

THE WITNESS: No.15MR. WEBER: Well, wouldn’t that have fallen16

within your suggestion about, you know, the Batson v.17Kentucky analysis that you were talking about? You18know, what do we need to do to not only properly19document what we have done, but to then make sure that20we keep the information around long enough so we’ve got21it in case we need it?22

THE WITNESS: Well, I suppose that makes23sense, but I wasn’t focusing on document retention.24

MR. WEBER: And then there is discussion at25


the bottom of this page about Detective Reilly being1instructed to meet with you and Trooper Dipatri to2present a lesson plan for the one-half day training3sessions by June -- it looks like 1st, 1996. Did that4meeting ever occur?5

THE WITNESS: I have no recollection of it.6MR. WEBER: The last page there is a7

discussion of a search and seizure periodical and that8by giving every trooper a guide to assist him or her in9completing reports, this is something I would assume10that you viewed to be helpful for future cases.11

THE WITNESS: Yes, absolutely.12MR. WEBER: When you say giving them a guide,13

do you mean actually sort of a guidebook or giving them14information that would guide them on how to proceed?15

THE WITNESS: A little bit of both. What I16had in mind was what I had done in Union County, which17is called the Stop and Frisk Checklist. And I wanted18to update that, expand on that and give that to the19State Police so that it would one, explain what is the20law, what are you allowed to do, what are you not21allowed to do, but also help them document the facts22and observations that justified various Fourth23Amendment intrusions.24

MR. WEBER: As far as you knew at this point25


in time, was there something similar to the Stop and1Frisk Checklist that you developed in Union County2within the State Police?3

THE WITNESS: I don’t think there was.4MR. WEBER: Do you know if one was ever -- or5

something like a Stop and Frisk Checklist was ever6promulgated at the State Police?7

THE WITNESS: Promulgated, I’m not sure if8that’s the right word. The second issue of the9newsletter, the Search and Seizure Review, was10dedicated entirely to that Stop and Frisk Checklist.11

MS. GLADING: Do you recall ever meeting with12Trooper Reilly?13

THE WITNESS: Trooper --14MS. GLADING: With Trooper Reilly?15THE WITNESS: Not on this subject. I mean16

I’ve known the gentleman for years, because I would go17to the Academy a lot and train, but --18

MS. GLADING: Do you recall any meeting19coming out of this meeting?20

THE WITNESS: I don’t recall any, no.21MR. WEBER: Mr. Susswein, a new document22

we’re putting in front of you, CO000034 through 41. It23is entitled New Jersey State Police Search and Seizure24Review, Volume 1, Fall of ‘96, Number 1. Is this the25


search and seizure guide that we were just talking1about?2

THE WITNESS: No, the checklist was the next3issue. This was the inaugural issue. I wrote a number4of these articles but it wasn’t the checklist that I5had ultimately in mind.6

MR. WEBER: And this is something that was7distributed to all road troopers, as far as you8understood?9

THE WITNESS: As far as I understood I think10it went to all State Police members.11

MS. GLADING: If we can just return to the 125-21-96 memo for a second. There’s a reference in13there to the records and identification section having14prepared an analysis of the troopers whose cases were15the subject of the Soto appeal. Do you recall any16discussion about that?17

THE WITNESS: No.18MR. WEBER: Mr. Susswein, new document,19

T003033 through 3035. Document entitled Search and20Seizure Review Board Meeting, January 31, 1997. And21you were identified as being the legal advisor. Under22the category entitled New Business it states,23“Assistant Attorney General Ron Susswein discussed an24unpublished police encounter worksheet and checklist he25


authored to assist police officers in filling out1investigation and incident reports. Many criminal2arrests are not successfully prosecuted because3pertinent information is not being put in police4reports.” Is this the checklist that you authored when5you were at Union County Prosecutor’s Office?6

THE WITNESS: Yes. When it says7“unpublished,” it had been published by Union County. 8That’s not completely accurate in this memo.9

MR. WEBER: Okay, it had been published.10THE WITNESS: Yes.11MR. WEBER: Okay. What exactly is the police12

encounter worksheet that’s referred to?13THE WITNESS: That’s another name for the14

checklist, Stop and Frisk Checklist.15MR. WEBER: Okay. All right. So the police16

encounter worksheet and checklist are one and the same.17It was inaccurately reported in this memo, correct?18

THE WITNESS: Yeah, they’re synonymous.19MR. WEBER: You said it was the second volume20

of the Search and Seizure Review that contained the21checklist?22

THE WITNESS: The second issue. Whether it’s23number or volume, I’m not sure what the right words is,24but...25


MR. WEBER: The document we just put in front1of you is GC002375 through GC002376, May 27, 1998 memo2from Sergeant First Class Gilbert to Colonel Williams. 3On the second page there’s a reference to a standing4committee with some suggestions and also suggested5attorney. Did you ever see a copy of this memo before6today?7

THE WITNESS: No.8MR. WEBER: There is discussion on the first9

page with respect to training about “We can insert a10block on racial profiling/selective enforcement into11the ongoing...”12

THE WITNESS: I’m sorry, what page and which13number?14

MR. WEBER: The first page under number one.15THE WITNESS: Okay.16MR. WEBER: Okay.17THE WITNESS: Right at the beginning, sorry.18MR. WEBER: Number one states, “We can insert19

a block on racial profiling/selective enforcement into20the ongoing two-week NCO supervision classes being21conducted at the Academy.” 22

Do you know what NCO supervision classes are?23THE WITNESS: I mean I think I -- I’m going24

to guess that NCO is non-commissioned officer, but I25


don’t know what these classes are.1MR. WEBER: Did anyone contact you concerning2

inserting a block on racial profiling or selective3enforcement into this training course?4

THE WITNESS: Not that I recall, no.5MR. WEBER: In the middle of the first page6

in all caps and bold there’s the following language: 7“We can easily format this training to include8enforcement issues arising for the racial profiling9angle; constitutional basis, case law policy and10attitudes. We would then be satisfying representations11made by the AG in the press release.” 12

Do you know what press release is being13referred to here?14

THE WITNESS: No, not specifically.15MR. WEBER: Or the representations that were16

made by the AG that, from the reading of this memo,17apparently were not entirely accurate?18

THE WITNESS: I just have no recollection or19involvement with that.20

MR. WEBER: The second page below the21asterisks -- or next to the asterisks, there begins a22paragraph. The second -- third sentence states,23“Lieutenant Sachetti is already involved with the audit24program and brings practical experience to the group as25


a result of recent assignments to Troop D as Assistant1Station Commander/Moorestown.” 2

Do you know what audit is being referred to3here?4

THE WITNESS: No.5MS. GLADING: Did you have any conversations6

in this time period which is right after the 7A7shooting about improved or increased training or8expanded training?9

THE WITNESS: I’m incessantly talking about10the need for more training as a bias from being a11trainer but no, this was a period of time when I was12sort of not in this issue.13

MR. WEBER: The next document, Mr. Susswein,14is GC002485 through 2489. There is a cover page,15Superintendent’s action memo dated August 18, ‘98 but16the memo that is attached to it is dated August 10, ‘9817from Sergeant First Class Gilbert through the chain-of-18command up to Colonel Williams. The subject is highway19interdiction training conducted June 24th through June2026th, ‘98 at NJSP Academy. The first paragraph it21states, “We have provided DOJ with DIAP,” which is Drug22Interdiction Assistance Program, “DIAP training23material and EPIC,” EPIC is El Paso Intelligence24Center, “intelligence reports/threat assessments which25


clearly set forth indicators and characteristics1related to individuals engaged in the manufacture,2transport and distribution of narcotics.”3

Were you aware of these DIAP and EPIC4training materials? Were you aware of the existence of5them?6

THE WITNESS: I certainly know about EPIC. I7knew that that existed. I wasn’t specifically familiar8with the DIAP materials.9

MR. WEBER: How about the EPIC intelligence10reports and threat assessments clearly set forth11indicators and characteristics related to individuals12engaged in narcotics distribution, were you aware of13the existence of those materials?14

THE WITNESS: I know that’s what EPIC does,15yeah.16

MR. WEBER: Were you aware that as a result17of -- strike that.18

Were you aware that the Department of Justice19was provided with and reviewed training materials that20were used by the State Police in connection with the21training of their recruits going as far back as 1975?22

THE WITNESS: Well, I knew that the DEA did a23lot of work training the rest of the nation, sure.24

MR. WEBER: But in connection with a consent25


decree that had been entered into with the Department1of Justice, I believe, going back to 1975 concerning2recruitment of women and minorities into the New Jersey3State Police. In connection with that, training4materials and anytime a training material was going to5be changed, that that material had to be sent to the6Department of Justice for their approval?7

THE WITNESS: This is the first time I’m8hearing that today.9

MR. WEBER: You are listed on the second --10well, the third page of the packet here as being a non-11NJSP instructor. And then on the next page at the top12of the page it states, “During the training, the13Division’s policy and case law concerning racial/ethnic14profiling were again set forth. In addition, AAG15Susswein stated that the current climate for law16enforcement when dealing with the courts in New Jersey17is that we (law enforcement) are assumed to have acted18improperly until we clearly establish through,” and19it’s tough because it’s cut off, I’m assuming “reports20and testimony that our actions are lawful and proper.”21

Were these comments you made in connection22with whatever the presentation you were responsible for23at this seminar?24

THE WITNESS: Yes. That we have the burden25


of -- anytime it’s a warrantless search, we have the1burden of proof.2

MR. WEBER: Well, it talks about the current3climate for law enforcement. Did you feel that --4strike that.5

The burden isn’t just in connection with what6the status of the law was. I mean the burden was also7as a result of what was going on in the public in the8perception of law enforcement, correct?9

THE WITNESS: Not the public. I was10concerned mostly -- although I’m not disputing that,11but I was concerned with the fact we were losing cases12and that the climate among the judiciary was to13restrict search and seizure law. The court was14increasingly relying on the State Constitution to15diverge from the U.S. Supreme Court and that our courts16were stricter, the State courts were stricter than the17Federal courts.18

MR. WEBER: On the last page, Sergeant First19Class Gilbert in the second paragraph that has an20asterisk next to it, states, “Although many other21states learned successful interdiction from the New22Jersey State Police, I believe they have subsequently23passed us in respect to administration of their24programs, including the implementation of internal25


monitoring mechanisms. In light of various current1events, I recommend we initiate a comprehensive review2of the State’s programs (beyond the in-car camera3issue). Identify the best possible practices and4procedures and put them into effect.”5

Did you have a discussion with Sergeant6Gilbert or anyone else about Sergeant Gilbert’s view7that these other stats have successfully passed the New8Jersey State Police in their interdiction efforts and9their implementation of internal monitoring mechanisms?10

THE WITNESS: No, I don’t think I had any11conversation like that.12

MR. WEBER: Would you agree with his13assessment in the memo, and when I say agree with his14assessment, I mean as of August 1998, that other states15had surpassed the New Jersey State Police in the16administration of their programs?17

THE WITNESS: I’m not sure from the memo what18it is that they passed. Is it stops and arrests and19searches and seizures? Is that --20

MR. WEBER: Well, how about surpassed New21Jersey in the implementation of internal monitoring22mechanisms?23

THE WITNESS: Yeah, I really don’t know what 24-- well, I learned later as part of the interim review25


process what other states were doing, specifically1Maryland, but I never had a discussion with him about2where we were.3

MR. WEBER: I’m going to put two documents in4front of you. The first is OAG004015 through 4017 and5the second is OAG004018 through 4020. They are two or6appear to be two e-mails from Dick Laventhal to, among7others, you. Both dated February 5th, 1999 and they8are forwarding two articles from the Philadelphia9Inquirer. It also appears, correct me if I’m wrong,10that other individuals who were -- who received this11e-mail were Kim Guadagno, by virtue of the address12there on the two, is that correct? 13

THE WITNESS: That seems to be, yeah.14MR. WEBER: Who is C. Grinnell?15THE WITNESS: Chuck Grinnell.16MR. WEBER: What was Chuck Grinnell’s17

position at the AG’s Office at that time?18THE WITNESS: He is a Deputy Attorney19

General. I believe he’s actively involved in -- well20then, an investigation, criminal investigation.21

MR. WEBER: Into?22THE WITNESS: Into the shooting.23MR. WEBER: Okay. Debra Stone, correct?24THE WITNESS: Yeah, that’s her. Yeah.25


MR. WEBER: And then it appears Paul Zoubek. 1I just see the Z-o-u and then it’s cut off.2

THE WITNESS: I think that’s a fair bet. 3There aren’t too many Z-o-u’s in the directory.4

MR. WEBER: Why were these two articles sent5to you by Dick Laventhal?6

THE WITNESS: Gosh, I have no idea why Dick 7-- I mean this is about the time that I was involved in8the interim report drafting,, but I don’t know why Dick9sent --10

MR. WEBER: Who is Dick Laventhal, by the11way?12

THE WITNESS: He worked for the Division of13Criminal Justice as the, what do you call it? the press14officer, public information officer.15

MR. WEBER: He was an employee of the16Attorney General’s Office at this time?17

THE WITNESS: I believe he was actually in18the Division of Criminal Justice. In fact, I know he19was in the Division of Criminal Justice.20

MR. WEBER: Did you discuss either of these21articles with anyone after you received them?22

THE WITNESS: Not as I recall.23MS. GLADING: Do you know when he was24

retained or hired?25


THE WITNESS: Dick Laventhal? He wasn’t in1CJ for long. It was after Paul Zoubek became the2Director. I don’t know the exact -- the exact year.3

MR. WEBER: Is he still an employee of the4Attorney General’s Office?5

THE WITNESS: No.6MR. WEBER: Do you know when he left?7THE WITNESS: I don’t know exactly when he8

left. He wasn’t with CJ for very long. I think it was9less than a year.10

MR. WEBER: The document I just put in front11of you is dated February 25th, 19 --12

MS. GLADING: I’m sorry, one second.13MR. WEBER: Sorry.14MS. GLADING: In your time at CJ, do you have15

any recollection of any time in the past when CJ has16had its own press person?17

THE WITNESS: No, this was the first time. 18They have one now, Emily Hornaday, but Dick was the19first who wasn’t on the -- if you understand the20reference, on the Eighth Floor.21

MR. WEBER: If you answered the question, I’m22sorry, but do you remember when he was first hired?23

THE WITNESS: I really -- it was after Paul24Zoubek became the Director and it was some period of25


time before he could -- Dick used to work in the U.S.1Attorney’s office up in Newark.2

MR. WEBER: The document I put in front of3you is dated February 25, 1999 to you from Paul Zoubek4and it attaches a quick draft of several issues we need5to examine in connection with the proposed State Police6Review Teams. I just put this document in front of you7to help refresh your recollection on timing. Was it8around this time, February 25th, that you found out9that you would be a member of the State Police Review10Team?11

THE WITNESS: Yeah, a little before this. 12Yes.13

MR. WEBER: Who told you that you would be a14member of the Review Team?15

THE WITNESS: Actually I was not technically16a member of the State Police Review Team, although I17did a lot of work on this project obviously, but I18wasn’t one of the listed members.19

MR. WEBER: Why was that?20THE WITNESS: I have no idea.21MR. WEBER: I mean ultimately you had a big22

hand in the drafting of the interim report, correct?23THE WITNESS: Yes.24MR. WEBER: I mean you were the one that was25


primarily responsible for it.1THE WITNESS: Yeah, I was a scrivener.2MR. WEBER: Okay.3THE WITNESS: Did anyone explain to you why4

it was that you would be the one primarily responsible5for actually drafting the report but not be a member of6the team itself?7

THE WITNESS: I didn’t really care or ask. 8The reasons why I’m a scrivener or a draftsman is9consistent with my history of doing reports like this. 10But I don’t know why I wasn’t on a Review Team or what11the criteria were.12

MR. WEBER: Well, if you look at Page 3 of13the memo, which is -- let me just identify for the14record, the document is OAG001349 through 1355. If you15look at Page 1352, under Roman numeral IV, racial16profiling, Zoubek is the lead and you are listed along17with Torres, Stone and Ramey. Which based upon other18individuals’ testimony in connection with our19investigation, these are sort of the subcommittees. So20racial profiling was a subcommittee with Paul Zoubek21being the lead and then the individuals below Mr.22Zoubek’s name, including yourself, were member of the23subcommittee. 24

THE WITNESS: I don’t -- as it turned out, I25


don’t think “committee” is the right word. We all had1our assignments. We never met as a committee or2subcommittee.3

MR. WEBER: I guess I’m a little confused as4to -- and, you know, maybe we’re splitting hairs here,5but as to your testimony to me, you’re not a member of6the State Police Review Team, but yet you’re listed7here under racial profiling as part of the group of8people led by Paul Zoubek that were going to deal with9the issue of racial profiling. Which I assume10ultimately this is the group who collected the11information that was then given to you to put together12with the interim report, which only dealt with racial13profiling.14

THE WITNESS: I don’t think we ever met as a15committee.16

MR. WEBER: No, I’m not saying that you met17as a committee but, you know, you’re listed here as18being part of a group of people that are dealing with19racial profiling in connection with the State Police20Review Team, but yet you’re testifying that you are not21a member of the team.22

THE WITNESS: My understanding is there was a23press release that announced the members and in the24interim report it has in the acknowledgments who the25


members are. Technically not one of them. I did1plenty of work on the subject, I just wasn’t a formal2member.3

MR. WEBER: No acknowledgment of your work I4guess behind the scenes then in connection with the5interim report.6

THE WITNESS: Actually I think -- I think7there was an acknowledgment. It might be in the last 8-- the last page or -- I seem to recall in the last9version there was a -- in some Xeroxes or copies of it,10it was the front page. On some of them, it was the11last one, but there was an acknowledgment paragraph.12

MR. WEBER: On February 10th then Attorney13General Peter Verniero announces that he is launching14an investigation to examine State Police practices and15that he is forming this Review Team and I assume that16that’s the press release that you’re talking about?17

THE WITNESS: Yes.18MR. WEBER: Did you know before the February19

10th press release that the Review Team was going to be20formed or that a Review Team was going to be formed?21

THE WITNESS: I might have, I don’t really22recall exactly what date I first learned of the23project.24

MR. WEBER: And then who contacted you to get25


you involved in the review?1THE WITNESS: Paul Zoubek.2MR. WEBER: Did he explain to you what your3

role would be?4THE WITNESS: At various times because it5

changed.6MR. WEBER: Well, initially what did he7

explain your role to be?8THE WITNESS: Pretty much we had gotten a9

copy of this or similar-looking documents that we had10assignments. Mine was on what is racial profiling? 11How does one collect data? Prove the existence of it.12

MR. WEBER: I will represent to you that the13press release dated February 10 from then Attorney14General Peter Verniero stated that the Review Team15would release its findings in approximately four16months. At some point thereafter, there was a decision17by someone that the racial profiling aspect of the18Review Team would be carved out from the overall review19and the interim report would be released, correct?20

THE WITNESS: Yes.21MR. WEBER: And the interim report22

ultimately was released on April 20th, 1999, correct?23THE WITNESS: Yes.24MR. WEBER: Okay. Approximately two months25


and a week or so from the initial press release of1February 10 stating in four months we’re going to2release our findings, correct?3

THE WITNESS: Yes.4MR. WEBER: Did anyone explain to you or did5

you have an understanding as to why the issue of racial6profiling was segregated out from the overall review7and that aspect was expedited so that the interim8report could be promulgated two months later as opposed9to four months with the entire review being completed?10

THE WITNESS: Yes, I understand why that was11done.12

MR. WEBER: Why?13THE WITNESS: The decision in Soto had to be14

made in terms of the appeal. The brief was due on15either April 19th or 20th -- or 21st, something right16around there. And a decision was made to expedite this17portion of the Review Team’s charge, get that work out.18

MR. WEBER: How long had that deadline been19in place? As far as when the State’s brief was due.20

THE WITNESS: Oh, that I don’t know what the21scheduling orders were. I don’t know when that date22was set or by whom.23

MR. WEBER: Well, on March 5th a motion was24filed to postpone for 120 days the State v. Soto case. 25


So therefore that would have bought more time beyond1the April 20th date, correct?2

THE WITNESS: I suppose. I mean I think I3read about that in the paper but sure, that would have4taken it past.5

MR. WEBER: Okay. Then why was there still a6push since that deadline was stayed? Why was there7then a push to continue to get the interim report done8by April 20th?9

THE WITNESS: My recollection is that it10wasn’t stayed. I mean I believe that April 20th was11the date either a brief or some decision had to be made12in Soto. 13

MR. WEBER: Was it your understanding that an14application was made to postpone the State v. Soto15deadline 120 days but that application was denied?16

THE WITNESS: I believe I read that in the17paper, yeah.18

MR. WEBER: Was there -- strike that.19On March 5th -- strike that.20When was the decision to carve out the racial21

profiling aspect of the review made and communicated to22you?23

THE WITNESS: I don’t know the exact date. 24It’s obviously sometime from early March to early25


April.1MR. WEBER: Was it made before then Attorney2

General Peter Verniero was nominated to the State3Supreme Court?4

THE WITNESS: I really don’t know what day. 5You would think it would stick in my mind because the6assignment changed dramatically and became more7difficult because I had less time, but I don’t remember8when that happened.9

MR. WEBER: Well, then Attorney General Peter10Verniero was nominated to the State Supreme Court on11February 26th, 1999. Was the decision to carve out the12racial profiling aspect of the review made before or13after that nomination?14

THE WITNESS: My involvement in the interim15report really began just about that time. So I can’t16tell you whether it was before or after. That’s just17about the week that I first got the assignment.18

MS. GLADING: When you became involved in the19interim report -- when you became involved in this20project, was there a discussion of an interim report at21that point or did that come shortly after that?22

THE WITNESS: My initial understanding was23that we would have until June. But at some point, I24don’t know exactly on what date, we were told that we25


were going to have to carve out the racial profiling1aspect of this.2

MR. WEBER: Was it shortly after you began3your involvement with the Review Team?4

THE WITNESS: Well, everything is short in5this -- I mean --6

MR. WEBER: Well, a few days? A few weeks?7THE WITNESS: I really -- I really don’t8

remember.9MR. WEBER: Well, think back. Initially when10

you are asked to help, you are told that you have till11June --12

THE WITNESS: Um-hmm.13MR. WEBER: -- correct? And you were going14

to be -- strike that.15When Paul Zoubek tells you that you’re going16

to be involved in this, did he initially tell you that17you were going to be the scrivener?18

THE WITNESS: No.19MR. WEBER: Okay. Did he tell you that you20

would be involved in any way, shape or form in drafting21parts of the report?22

THE WITNESS: Well, I had certain assignments23so I assumed that I would have to write up what my24assignment was.25


MR. WEBER: Okay. And when you initially1became involved, you were operating under the2assumption that -- or operating under the belief that3you would have till June or that the team would have4until June to complete their work and promulgate a5report, correct?6

THE WITNESS: Yes.7MR. WEBER: You then at some point in time8

find out, scrap June, we’re looking at April 20th or9thereabouts. I would assume that that would have had10some effect on you. I mean now you have half the time11that you originally thought you had to do your work, to12draft what you needed to draft, correct?13

THE WITNESS: It did have an effect on me,14yes.15

MR. WEBER: Do you remember how long after16you became involved with the State Police Review Team17that you find out about this change that has now had an18effect on you and now you’re going to go about doing19your work?20

THE WITNESS: Well, let me go inferentially21here. There was a certain point in time before certain22information was available to me that I had seen that I23don’t know that I was thinking of writing the interim24report, that I even know that that was my assignment. 25


So we’re talking about a fairly short period of time1from whenever the due date moved up to the due date. 2The April 20th due date.3

MR. WEBER: When the decision was made that4the racial profiling aspect of the review would be5carved out and an interim report would be produced by6the Committee, were you then told that at that time or7by the team, were you then told at that time hey, guess8what, Ron, you’re going to be the scrivener on the9interim report?10

THE WITNESS: I don’t think they were that11closely linked or simultaneous statements. I really12don’t remember when my role shifted from the projects13that are listed here to actually putting together and14scrivening or drafting, for lack of a better word, the15entire interim report. There’s just not a lot of time16here from, you know, early March when I got -- or late17February to when it was due.18

MR. WEBER: When did you first hear that19Justice Pollack was considering retirement?20

THE WITNESS: I read about that in the paper.21MR. WEBER: You hadn’t heard, there wasn’t,22

you know, any sort of whispers around the AG’s Office23or any discussions around the AG’s Office that Justice24Pollack was considering retiring?25


THE WITNESS: Not that I’m aware of, no.1MR. WEBER: There was an article in the New2

Jersey Lawyer on February 22nd stating that Justice3Pollack was considering early retirement. Is that the4newspaper article you’re referring to?5

THE WITNESS: I do read the two law6periodicals, so it could have been. I also read the7Star Ledger, it could have been in there, too.8

MS. GLADING: Are you moving off this9document?10

MR. WEBER: Hmm?11MS. GLADING: Are you moving off this12

document?13MR. WEBER: Yes.14MS. GLADING: On Page OAG1353 there’s a15

discussion, the outline. It lists a number of items16about statistical data. What was your understanding of17what statistical data this referred to?18

THE WITNESS: I was actually, as a supervisor19over Chris Boyle, was assigned to collect all available20information to get a handle on the nature and extent of21the problem.22

MS. GLADING: Okay. What was your23understanding of what “all material” provided to24Justice meant?25


THE WITNESS: I later learned that a lot of1material had been turned over to Justice and we were2going to look at that. Chris Boyle was going to crunch3all of those numbers.4

MS. GLADING: Did you ask as a result of5seeing this what that meant?6

THE WITNESS: I’m sure it was explained to me7when Chris Boyle would have gotten the assignment to go8and collect whatever data was available.9

MS. GLADING: Okay. So you are Chris Boyle’s10supervisor?11

THE WITNESS: I was at the time, yes.12MS. GLADING: Okay. And you -- and tell me13

how the process worked at that point.14THE WITNESS: I’m not sure I understand. I15

supervised her.16MS. GLADING: You got this memo and it listed17

a considerable amount of statistical data.18THE WITNESS: Right.19MS. GLADING: And then you did what?20THE WITNESS: Well, we had interminable21

meetings that people would find out what data is22available and Chris’ job was to get it and collate it23into a usable format.24

MS. GLADING: Okay. And what data was25


available?1THE WITNESS: There were boxes and boxes of2

materials that were provided to us at some point during3this time period.4

MS. GLADING: Was George Rover in any of5these meetings?6

THE WITNESS: Yes.7MS. GLADING: And did he discuss what data8

was available?9THE WITNESS: Yes.10MS. GLADING: And what did he say?11THE WITNESS: What did he say? He described12

the boxes of materials that had been turned over to the13Justice Department.14

MS. GLADING: Okay. Did he discuss any15analysis of that material?16

THE WITNESS: It depends on what you mean by17analysis. I mean there came a point in time when18certain information --19

MS. GLADING: I’m not there.20THE WITNESS: Okay.21MS. GLADING: At this point in time, in22

February 25th -- on February 25th or during the23interminable meetings that shortly followed this memo.24

THE WITNESS: Um-hmm. We were meeting every25


day.1MS. GLADING: Well, what did George Rover say2

was available?3THE WITNESS: I don’t remember precisely what4

George Rover said at any particular meeting.5MS. GLADING: Do you recall him saying there6

was any analysis of these boxes and boxes or whether7you were going to have to start from scratch with these8boxes and boxes?9

THE WITNESS: It depends on what you mean by10“analysis.” Chris -- well, Chris’ job was to collate11all the information. Some of that were patrol logs,12radio sheets. She had boxes of stuff. Now, there were13other things that we got but we got them -- I know14you’re getting to it, we got them later that I would15describe as compilations. I’m not sure “analysis” is16the right word, but maybe because I’m using that in a17very technical sense.18

MS. GLADING: Did George Rover indicate to19you during these meetings that there were any20compilations available that had been put together21previously?22

THE WITNESS: At some point, but I can’t tell23you whether it was before March 15th or not. I know24that’s where you’re heading, but I don’t recall.25


MS. GLADING: If it was not before March115th, did you say to George, George, why didn’t you2tell me about this?3

THE WITNESS: No.4MS. GLADING: What was your view about a5

population survey, which is listed in item 3B in this6page?7

THE WITNESS: Part of my assignment was I8actually designed the concept of how to do a population9survey. I wrote a memo on how to get a handle -- get a10better benchmark than the one that we criticized that11had been used by the Public Defender in the Soto12litigation.13

MS. GLADING: Did you recall any discussions14about a population survey after the Soto opinion?15

THE WITNESS: When you say after, you mean16right after?17

MS. GLADING: Right. After the Soto opinion18in the meetings with the State Police. Other witnesses19have indicated there was testimony that the Public20Defender’s data was flawed because it didn’t include21nighttime hours. It was just a guy riding down the22Turnpike. Do you recall any discussion at that time23about a population survey or the need for one?24

THE WITNESS: I don’t recall being involved25


in any such discussion.1MS. GLADING: When Chris Boyle came back to2

you and told you what she had found, did she indicate3that she had found any compilations of material?4

THE WITNESS: When you say -- I’m sorry,5repeat -- when you said “it”, I’m not sure what the6“it” was.7

MS. GLADING: When you sent -- you sent Chris8Boyle off to gather what had been found. When she came9back to you with what she had found, did she come back10to you reporting that there were any compilations of11materials?12

THE WITNESS: This was an ongoing process. 13She didn’t just come back and say I found it all.14

MS. GLADING: When she initially came back to15you after you said go see what’s available.16

THE WITNESS: I didn’t tell her go see what’s17available. We were having meetings with people and18material was being turned over to us.19

MS. GLADING: Okay.20MR. WEBER: Who was turning over material to21

you?22THE WITNESS: It may have been coming from23

Rover. Mike LoGalbo was sort of like a, for lack of a24better word, like a custodian or responsible for the25


repository. Then a lot of information came over from1the State Police.2

MR. WEBER: Was there a liaison at the State3Police who was responsible for getting the information4to the Attorney General’s Office?5

THE WITNESS: I suppose there was, but I’m6not sure who it was.7

MS. GLADING: Did Mr. Zoubek or Mr. Verniero8ever indicate to you that there were compilations of9statistics about stops and consent searches available?10

THE WITNESS: Well, I’ve never discussed any11of this with Peter Verniero. And in terms of Paul12Zoubek, not before the March 15th.13

MS. GLADING: And with Sergeant Gilbert, did14you ever discuss the availability of compilations of15data?16

THE WITNESS: I’ve had maybe three or four 17-- he’s a really great guy and I met him a long time in18the past, but I never had any conversations with19Detective Gilbert on this.20

MS. GLADING: Okay.21MR. WEBER: Just before we saw this document22

in front of you and Ms. Glading as you some questions23about the reference to the Department of Justice, when24did you first become aware that the Department of25


Justice had contacted the State of New Jersey1concerning the issue of racial profiling?2

THE WITNESS: It was during this interim3report project drafting period.4

MR. WEBER: And how did you learn about the5DOJ’s request?6

THE WITNESS: It was through this material7that we were compiling.8

MR. WEBER: Did you read that information in9a document? Did someone orally advise you?10

THE WITNESS: Again, we had meetings and what11was available, who has what, where is it physically12located. How do we get it over to Chris so that she13can compile it.14

MR. WEBER: Did anyone provide to you15information about the history of dealings between the16State of New Jersey and the Department of Justice in17connection with DOG inquiry into racial profiling?18

THE WITNESS: No, not until this recent1990,000 page document release I’ve read, some20correspondence. But no, not until the last couple of21months.22

MR. WEBER: So you didn’t have any23discussions with Mr. Zoubek or anyone else providing24you information about let’s say for instance the25


strategies behind why documents weren’t produced at1sometime and then later on there was a decision to2produce documents?3

THE WITNESS: I wasn’t even aware that they4were asking -- that the Department of Justice was5asking.6

MR. WEBER: Were you aware that at some point7in time the State of New Jersey produced documents to8the Department of Justice?9

THE WITNESS: I’ve learned that as a result10of the interim report.11

MR. WEBER: Did anyone explain to you why the12decision was made to cooperate with the Department of13Justice and produce documents?14

THE WITNESS: I don’t recall any discussion15along those lines.16

MS. GLADING: On the last page of this17document, Roman numeral IX, Section B. Roman numeral18IX is a discussion of the State’s position in Soto and19Section B says, “Can we still reasonably take the20positions we have taken in Soto?” At this point in21time on February 25th, 1999 when you’re beginning the22document collection, what was the basis for the doubts23about the State’s position in Soto being reasonable?24

THE WITNESS: I told you I was not involved25


in any of the discussions on the Soto appeal.1MS. GLADING: This memo went to you. 2

Presumably this was the topic of -- this was an outline3for a topic of discussion at one of these meetings?4

THE WITNESS: Yeah. But, all right, it5wasn’t my assignment. I didn’t -- I didn’t question6it.7

MS. GLADING: What was discussed at that time8about the reasonableness of the State’s position in9Soto?10

THE WITNESS: I was not in any such11discussion.12

If I can just clarify. When we were doing13these meetings, I don’t want to create the impression14that this was some kind of a large committee that was15gathering information. We would have our little16individual meetings to do our assignments.17

MS. GLADING: Okay. Who would have been in18the Soto discussions of these three people; Wayne19Fisher, Debra Stone and Ron Susswein?20

THE WITNESS: Deb Stone. I don’t think Wayne21Fisher would have anything to do with it.22

MR. WEBER: The new document we put in front23of you is OAG001357 through 001360. A March 1, 199924memo from you to Mr. Zoubek. Only four pages. And the25


subject is supplement to outline for proposed State1Police Review Team’s profiling issue. The paragraph2numbered number one talks about looking beyond the3initial stop numbers and you state, “Subsequent police4actions could help to confirm or dispel the suspicion5that a given stop or cluster of stops were racially6motivated.”7

THE WITNESS: Yeah, where -- I’m sorry, I8just lost where exactly --9

MR. WEBER: Page 1, the paragraph numbered10Paragraph 1.11

THE WITNESS: Um-hmm. I got you, sorry.12MR. WEBER: Okay? And then you go down to13

talk about discretionary, examining discretionary14decisions made after the initial stop. We can avoid15having to rely entirely on a population survey or -- as16a benchmark and then you state, “Simply stated, if17racial stereotypes are relied on during the stop, they18will show up at various, if not all, stages of the19encounter. It is therefore critical that we collect20data concerning not only the initial decision to stop,21but concerning every ‘decision point’ during the on-22the-scene encounter demonstrating whether an extent to23which detained minority motorists are treated24differently than detained non-minority motorists. This25


would be critical in confirming any statistical1discrepancies with respect to the initial decision to2stop a vehicle.”3

Had did you come to think about and provide4this analysis that we’ve got to look beyond the initial5stop numbers, that there is more to be learned from6what was done after the stop by an individual trooper?7

THE WITNESS: A lot of this has to do with8the definitions we come up with in terms of what is9profiling, what is discrimination? I believed then and10I still believe that racial profiling is essentially11relying upon racial or ethnic stereotypes in exercising12police discretion. What you’d want to look for -- if13you were analyzing a system -- and my assignment was is14it going on, what is the nature and scope of the15problem? So that’s your marching orders. What you16want to be looking for are discretionary acts that17aren’t otherwise required by other circumstances. For18example, an arrest, if you smell drugs, you have19probable cause. There’s not a whole lot of discretion20in that.21

MR. WEBER: Right.22THE WITNESS: If you see drugs, you don’t23

have a lot of discretion. So what I wanted to identify24were -- obviously there’s a lot of discretion in stops. 25


Everyone agrees to that. But there were other steps in1the sequence of events of a routine motor vehicle2encounter that are more discretionary and the question3would be are racial stereotypes influencing those4decision points that would be useful in either5confirming or explaining the initial stop decision.6

MR. WEBER: In Paragraph Number 2 you provide7a list of additional potential indicators in quotes of8impermissible profiling activities. And one of the9indicators that you suggest on the very bottom of the10page is “higher incidents of request to search, consent11searches.” Why did you suggest that higher incidents12of request to search, consent searches, could be an13indicator of impermissible profiling activities?14

THE WITNESS: Well, because that’s a fairly15discretionary act. Even though the State Police have a16standard since 1990 of reasonable suspicion, that’s a17lower standard, a lower threshold than probable cause. 18So there’s more discretion to ask for permission to19search. And that’s what we’re looking -- I was listing20here, discretionary acts.21

MR. WEBER: I’d like you to go back to 199622when you’re part of this committee post the Soto23decision that was comprised of yourself, Mr. Fahy and24then the individuals from the State Police. We went25


through a bunch of those memos. And the memos detailed1various suggestions, various avenues that should be2pursued in connection with the Division’s response to3the State v. Soto decision. And there is language in4those memos that said look, like it or not, to use your5own phrase, the tide has changed here and we need to6address this on a go-forward basis. Did you at that7time provide to the committee your insight on these8potential indicators or your thoughts on looking beyond9the initial stop information? To dig deeper and look10at the discretionary type of decisions that could then11indicate an impermissible activity or actions of a12State Trooper that would support this argument that13profiling was going on?14

THE WITNESS: I didn’t.15MR. WEBER: Why not?16THE WITNESS: Why not?17MR. WEBER: And, you know, I’m not being18

argumentative here, I’m just trying to --19THE WITNESS: No, I understand. My20

assignment in that committee was to help out going21forward, but on training. I wasn’t there -- and you22have to understand the history between CJ and State23Police. I wasn’t there like I was at this time with24the interim report to design a system to examine the25


nature and scope of the problem. 1MR. WEBER: Had the thought occurred to you2

in connection with the post-Soto committee in 1996 that3maybe there ought to be some thought given to some of4these issues that you’re now discussing in the March 1,51999 memo? To really challenge the decision in the6Soto case or to challenge the veracity of the7statistics provided by the Public Defender?8

THE WITNESS: I just wasn’t thinking along9those lines back in ‘96.10

MR. WEBER: In connection with your -- let’s11put on the training hat, you know. You obviously have12offered up your expertise on the area of search and13seizures and other areas. That’s something that I14would assume is near and dear to your heart and you’ve15done all these training courses for all of these years. 16You even developed this search and seizure checklist17when you were at the Union County Prosecutor’s Office. 18During the course of your training and developing these19materials, did you ever give thought to the20discretionary aspects of what happens after the stop21and how that’s where if an individual is prone to use22race impermissibly, that’s where it’s going to happen?23

THE WITNESS: In my trainings, based on my24understanding of State v. Kuhn, I trained to my25


audiences that law enforcement officers could never1rely on race or ethnicity in drawing inferences of2criminal activity. I assume good faith when I tell an3audience or any trainer tells a law enforcement4audience what you can and specifically what you can’t5do. My starting point is if you tell them they can’t6use it, they won’t use it.7

MR. WEBER: You would agree, would you not,8that the area in which there is a potential to9impermissibly use someone’s race by a trooper in a10decision on how to act is not really at the point of11the stop, it’s really what happens after the stop.12

THE WITNESS: I wouldn’t exclude the stop.13MR. WEBER: Not exclude the stop, but --14THE WITNESS: The stop is a discretion --15MR. WEBER: -- the area in which there is a16

greatest potential abuse of discretion is after the17stop, correct?18

THE WITNESS: “Greatest” I might quarrel with19you because I think the stop is still terribly20important, but I don’t mean to quarrel with you. There21is no question that there are a sequence of events of22decisions and racial stereotypes can influence the23exercise of that discretion and I believe -- and the24case law may not be clear on this, but I believe that25


that’s inappropriate and wrong. 1MR. WEBER: Okay. But going back to -- going2

back to the memo that you produced in September -- I3guess it was 1988, about the drug courier profiling.4

THE WITNESS: Um-hmm.5MR. WEBER: If I remember correctly, there6

was some discussion in there by you that look, if7someone has violated a motor vehicle law, there’s a8reason to stop them, correct?9

THE WITNESS: Under Delaware v. Price, yes.10MR. WEBER: Right, okay. So clearly on the11

issue of race in connection with the stop, a trooper12could not pull somebody over merely based on race. I13mean if they were driving -- if the speed limit is 5514miles an hour and they’re staying in the lane and15they’re driving properly, there would be no reason to16pull over a individual just based solely on race,17correct?18

THE WITNESS: I think everyone agrees with19that proposition, correct.20

MR. WEBER: Okay. We then now go a little21further down the road. The individual has been stopped22because the trooper has observed a violation of Section2339 of --24

THE WITNESS: Title 39.25


MR. WEBER: Okay. So there was a reason to1pull them over, regardless of their race. They’re2doing 75 miles an hour. Correct? But now at that3point in time when they observed the individual’s race,4that there is the greatest potential impermissible use5of that information because they can then go one step6further and ask for a consent to search, correct?7

THE WITNESS: Yeah, there is that potential. 8Whenever you have the exercise of discretion, one of9the things about the interim report was an attempt to10state, it may be for the first time anyone had ever11really done it this way that -- what you had given12before was sort of like the classic newspaper13definition of racial profiling. Stopping a vehicle14based solely on the race of the occupants. And the15point we were trying to make in the interim report,16it’s not just the stop, and it doesn’t have to be17solely. That race or ethnicity can play no part, or if18it does, it would subject the encounter to strict19scrutiny, which in my opinion would be hard for the20Government to prevail.21

MR. WEBER: Prior to you being involved with22the interim report, do you remember there being any23discussions with anyone in the Attorney General’s24Office or at the State Police about that concept, that25


racial profiling is not just a stop, it’s what occurs1after the stop and it occurs when a police officer has2the greatest amount of discretion in connection with3how he treats the individual that he pulled over?4

THE WITNESS: That’s what I always trained. 5I have learned subsequently that many people do not6agree with that analysis, many courts, the United7States Justice Department, or at least parts of the8Justice Department. I had assumed -- I know I9shouldn’t run on on this, but when I read State v.10Kuhn, I assumed that that was conclusive, compelling11hard law. And it was only much later when I was doing12the research for the interim report that I realized the13key case that Kuhn was relying on, a United States14Supreme Court case, stands for the exact opposite15proposition that it is cited for in Kuhn. And for 1316years or whatever, from ‘86 until ‘99, I just assumed17Kuhn was rock-solid law and that’s what I trained. 18

MR. WEBER: I take it that as a result of19your involvement with the Review Team, you became aware20that the statistics on the stops weren’t really the21problem statistics, it was the statistics on the22consent to searches, correct?23

THE WITNESS: More of an issue, because the24numbers we collected as part of the interim report were25


consistent with the numbers that were presented in the1Soto litigation. And so one can still argue, you have2your battle of experts and arguments over the3benchmark.4

MR. WEBER: I guess what my question is, when5did you become aware of the significance of the consent6to search numbers and how they played in the whole7issue of racial profiling?8

THE WITNESS: Well, I first learned of the9actual consent to search numbers on March 15th. 10Obviously in this earlier memo when I sat down to try11to design -- if I could get any data that I could, with12the goal of being how do I decide whether there’s a13problem and the nature and extent of it, those are the14kinds of numbers I would want to see. And then on15March 15th they were provided to us.16

MS. GLADING: Had you started a process to17try and collect those numbers by doing compilations of18the data that you had?19

THE WITNESS: Not really. I mean this was 20-- this exhibit that I was just reviewing, my March 121memo, was sort of like a thought experiment of this is22the type of information that we would like to collect. 23I don’t know that we had enough time to go looking for24it before it came to us.25


MS. GLADING: Why are there different1opinions about the relevance of consent to search data2in ascertaining whether or not there’s racial3profiling?4

THE WITNESS: I think a lot of that has to do5with, and again I don’t want to get into a Clintonesque6what does “is” mean, but definitions, how do we define7racial profiling? And the definition that I proposed8and that was adopted in the interim report frankly is a9broader definition than the case law, at least federal10case law supports at the moment.11

MR. WEBER: The document that we put in front12of you is OAG001383 through 1386. It is a March 5th,131999 memo from you to Paul Zoubek. Again, four pages. 14And it concerns the Turnpike population survey. In the15second paragraph you state, “As you know, throughout16the course of the Soto litigation, the Attorney17General’s Office has criticized the population survey18methodology that was employed by the Public Defender’s19Office. In order for us to get a handle on the nature20and scope of the racial profiling issue, it is now21incumbent on us to initiate some form of population22survey that can be used as a reliable benchmark for23comparing actual New Jersey State Police stops.”24

Was it your understanding that though the25


Attorney General’s Office, in connection with the Soto1litigation, criticized the population survey2methodology employed by the Public Defender’s Office,3it had not as of this date, March 5th, 1999, conducted4its own Turnpike population survey?5

THE WITNESS: That’s correct.6MR. WEBER: Did anyone explain to you why?7THE WITNESS: Why they hadn’t --8MR. WEBER: Yeah. I mean the Soto decision9

was March 6th, I believe, 1996. So we’re almost three10years to the date later, you know post-Soto, and no11Turnpike population survey has been conducted as of yet12by the State of New Jersey. Did anyone explain to you13why three years elapsed and the State did nothing to14conduct its own population, Turnpike population survey?15

THE WITNESS: No, no one explained that to16me.17

MR. WEBER: Did you have an understanding as18to why?19

THE WITNESS: I still don’t know why. The20litigation posture was very defensive. It was21attacking the expert that the Public Defender had, but22not doing their own survey. But again, I’m going way23-- my assignment was way beyond Soto, it was how do we24get a handle on the problem, not just how to defend25


against a lawsuit. 1MR. WEBER: March 5th, coincidentally, is the2

same day that then Attorney General Peter Verniero3files the motion to postpone State v. Soto 120 days. 4Was there any connection between the filing of that5postponement and your suggestion that the State conduct6its own population, Turnpike population survey?7

THE WITNESS: No. No, this was my own8suggestion on how to get a handle on the scope of the9problem.10

MR. WEBER: At the time you authored this11memo, had you been aware that the State on that same12day was filing this motion to postpone the Soto case?13

THE WITNESS: No, unless it was in the Ledger14the next day but, no.15

MR. WEBER: And not in a -- I don’t want to16be unfair here. I don’t want to ask you to second-17guess or to be a Monday morning quarterback, but did18you find it at all odd that in connection with the Soto19case the State hadn’t conducted its own Turnpike20population survey?21

THE WITNESS: You mean asking me today22whether I think --23

MR. WEBER: Yeah, today. Sure. Knowing what24you know now.25


THE WITNESS: If I could go back in time, I1certainly would recommend that they would have done2that, back in ‘94, ‘95.3

MR. WEBER: Was a Turnpike population survey4ever conducted as far as you know?5

THE WITNESS: I believe it was conducted6recently, yes.7

MR. WEBER: Okay. And when were the results8released?9

THE WITNESS: I don’t know even they have10been --11

MR. WEBER: If they have been.12THE WITNESS: -- released.13MR. WEBER: Do you know who actually14

conducted the survey? Did the State itself? Did they15hire an outside organization?16

THE WITNESS: I believe that there was some17consultant. This is all under the auspices of the18Justice Department and the federal monitors.19

MR. WEBER: In connection with the consent20decree?21

THE WITNESS: Yes.22MS. GLADING: Was it your understanding at23

this point in time that this was something that the24Department of Justice was discussing with the State?25


THE WITNESS: At this point on March 5th I1hadn’t really gotten involved yet with dealing with the2Justice Department as far as --3

MS. GLADING: Who brought up the idea of a4population survey?5

THE WITNESS: This is me.6MS. GLADING: So you brought this up on your7

own initiative?8THE WITNESS: Yes.9MR. WEBER: The next document, Mr. Susswein,10

is your March 12, 1999 memo to Paul Zoubek, OAG00157711through 1595. The first thing I’d like to direct your12attention to us starting at OAG001589 to the end of the13document, 1595. There’s some handwritten --14

THE WITNESS: Wait a minute.15MR. WEBER: -- comments. Do you know whose16

handwriting that is?17THE WITNESS: No.18MR. WEBER: Do you remember receiving that,19

this March 12 memo, with comments from anyone?20THE WITNESS: I could have, I don’t21

specifically remember.22MR. WEBER: Who is -- if you look on the23

first page it says -- it looks like to D.W. “Comments24noted are DAG Foddai’s and mine.” And there appear to25


be initials and the date 3-18-99. Is that a D.W.? Am1I reading that correctly where it says --2

THE WITNESS: You know, I don’t know whether3that’s a D.W. It could also look a little bit like 4D.C.J., although I don’t think that makes much sense.5

MR. WEBER: Well, was there a D.W. who was6involved in the racial profiling investigation in the7interim report?8

THE WITNESS: D.W. No, it’s not.9MR. WEBER: How about DAG -- am I pronouncing10

it correctly, Foddai?11THE WITNESS: Yeah, Cathy Foddai.12MR. WEBER: Okay. What was Cathy Foddai’s13

involvement with this?14THE WITNESS: Oh, I don’t know exactly -- I15

know what her -- she’s in the Appellate Bureau.16MR. WEBER: Okay.17THE WITNESS: Either a Senior Supervisor or18

maybe a Deputy Chief. I’m not sure. She’s a senior19person in the Appellate Bureau.20

MR. WEBER: Do you know why she was providing21comments to your memo?22

THE WITNESS: I assume she was asked by Ann23Paskow to comment.24

MR. WEBER: And that’s the A.P., Ann Paskow?25


THE WITNESS: Yeah, that’s definitely Ann C.1Paskow’s --2

MR. WEBER: Okay. Oh, that’s a C.3And again, you don’t remember receiving back4

any comments about either your memo or the draft5strategies?6

THE WITNESS: I don’t recall specifically. I7may well have, but I don’t -- I don’t recall.8

MR. WEBER: March 12, and this was gone over9a little bit in your deposition in the Baez matter. 10March 12 was a Friday. Was there a meeting scheduled11for Monday the 15th, is that correct? 12

THE WITNESS: Yeah. I’m assuming that’s13right.14

MR. WEBER: And there were some questions15about why you put in the proviso of this being a16hastily-prepared memo. It’s still a little unclear as17to why you put that in and we haven’t really seen the18hastily-prepared --19

THE WITNESS: Oh, yeah, you have, it’s20usually at the end.21

MR. WEBER: At the very end?22THE WITNESS: I very often -- I dictate my23

memos, that’s why I’m able to write so long. I dictate24the memos and I will usually end with, “I apologize for25


the stream of consciousness memo.”1MR. WEBER: I did see that in another --2THE WITNESS: Sometimes if I edit it enough,3

I’ll put that right up front when I think a real4apology is necessary.5

MR. WEBER: Were you on the 12th or right6around the 12th asked by Mr. Zoubek to prepare these7draft proposals that are attached to the memo or -- I8mean why was this hastily prepared?9

THE WITNESS: We were operating under a very10short time period and I don’t take a long time to write11these things, so even if I had been given a month, I12might have just done it that day. That’s also -- it’s13not expecting these documents to become public domain. 14It’s sort of my way of saying to my superiors, you15know, if my grammar or whatever is a little off, please16don’t be insulted.17

MR. WEBER: The bottom of the first page, the18last line --19

THE WITNESS: The bottom of the first page?20MR. WEBER: Yeah. 21THE WITNESS: Yeah.22MR. WEBER: “Based on published reports, it23

is often suggested that while it is impermissible for24police to base a stop solely on a motorist’s race or25


ethnicity, race or ethnicity are nonetheless legitimate1factors that officers may keep in mind. That2proposition is simply wrong as a matter of law.” What3published reports were you referring to there?4

THE WITNESS: Well, that’s been in the5newspapers. I mean the classic definition of racial6profiling is stopping a vehicle based solely on the7race of the occupants. I mean to this day newspapers8when they have to have their parenthetical definition9of profiling, racial profiling, will say that.10

MR. WEBER: Incidentally, you know, at11anytime in your meetings with the group of individuals12post-Soto in 1996, at anytime during your training, at13either question and answer sessions, was there any14discussion of what is the definition of racial15profiling?16

THE WITNESS: No.17MR. WEBER: Or did that finally come up in18

connection with this interim report?19THE WITNESS: The interim report, in my mind,20

highlighted the need that the problem -- arrogant21enough when I do my training to assume that everyone22has -- is operating on the same wavelength. Then it23turns out I may not even be reading the case law24correctly in light of U.S. Supreme Court precedent. 25


And it was during the interim report that it dawned on1me and I suggested to Paul Zoubek, we don’t even have a2definition of what to look for.3

MR. WEBER: How did you go about composing4the definition?5

THE WITNESS: I took it right out of that61988 memorandum. It’s law school training. If we’re7dealing with the 14th Amendment, my understanding if a8Government actor, and that’s what cops are and that’s9what I am, Government actor uses a racial10classification, that classification will be subject to11strict scrutiny, which usually means we lose.12

MS. GLADING: On the last page of this13document there’s a handwritten note and I understood14your testimony to be you didn’t know who wrote these15notes or whose writing this was?16

THE WITNESS: Yeah, I’m not sure whose17writing that is.18

MS. GLADING: It indicates some criteria, it19appears to be discussing item number ten on Page 20OAG1595, which is a discussion of criteria that should21be adopted for exercising discretion in selecting22vehicles to be stopped. The handwritten note23indicates, “Some criteria can be problematic, that is24the number of occupants or age of the car may impact25


the poor and minorities. This is just profiling again,1which can lead to targeting the same people now being2targeted.” Who was your understanding at this point in3time that was being targeted?4

THE WITNESS: I’m sorry, I don’t understand5the question. Who was being targeted?6

MS. GLADING: Yeah. This says -- apparently7there’s an understanding at the time that this memo is8read and that note is made that there is racial9profiling and that somebody is being targeted.10

THE WITNESS: I don’t agree with that at this11point. This is before March 15th, right?12

MS. GLADING: Yes, it is.13THE WITNESS: Yeah. I don’t agree with that14

characterization that we all agreed there was racial15profiling and that this was -- I think I understand16what the comment is, which is if I’m suggesting in my17memorandum that we have positive stop criteria,18criteria that law enforcement could rely on, that there19may be things that are correlated to race. 20

MS. GLADING: No. My question is much21simpler. At this point in time somebody says there are22specific people now being targeted. What was the23understanding on March 12th within the Department about24who was being targeted by the police?25


THE WITNESS: What line are you reading that1says this is --2

MS. GLADING: “This is just profiling again,3which can lead to targeting the same people now being4targeted.”5

THE WITNESS: But I just interpret it6differently. And again, you have to ask whoever wrote7it, but my view is this was a criticism of what I was8suggesting. I was suggesting certain criteria that are9legitimate.10

MS. GLADING: I understand. I’m just --11THE WITNESS: I don’t read that as saying --12MS. GLADING: That people are now --13THE WITNESS: -- an admission that there was14

profiling.15MS. GLADING: You don’t read that as a16

statement that people are now being targeted?17THE WITNESS: Do you mean “This is just18

profiling again”?19MS. GLADING: No. I mean “This is just20

profiling again which can lead to targeting the same21people now being targeted.”22

THE WITNESS: Well, I think that’s a23conclusion. I don’t agree with it.24

MS. GLADING: What do you think it means?25


THE WITNESS: I told you what I thought it1meant, is that it was a criticism that I was talking2about criteria that are correlated to socioeconomic3status and through such economic status correlated to4race.5

MS. GLADING: Okay. If I can just back up to6the last document which we just did which is the7discussion of the Turnpike population survey. The8second paragraph of OAG1383 indicates that this9population survey you believe was needed in order to10get a handle on the nature and the scope of the racial11profiling issue. What was the purpose of creating a12benchmark at this point in time?13

THE WITNESS: Well, if you’re going to use14any kind of statistical analysis with stops, you have15to understand who is subject to being lawfully stopped16and then if there is a statistically-significant17deviation between the reality of the world and what the18State Police are doing, in my opinion, although this is19not necessarily case law, that would lead to a Batson-20like situation, that the burden would shift to us to21explain.22

MS. GLADING: Okay. So you needed this to23compare against stop and consent data, is that correct?24

THE WITNESS: Yeah, that’s what the benchmark25


means, right.1MS. GLADING: What stop and consent data did2

you need to compare it to? What stop and consent data3did you have at this point in time?4

THE WITNESS: The data I wanted to get from5this memo.6

MS. GLADING: Okay. Where -- no, this is7population data you wanted to get from this memo,8right?9

THE WITNESS: I might be looking at a --10confusing the --11

MS. GLADING: I’m sorry. I backed up to the12last memo, March 5th, 1999.13

THE WITNESS: Okay.14MR. MILLER: March 5th or March 1st? He was15

looking at the March 1st memo.16THE WITNESS: I’m sorry. I don’t even --17MS. GLADING: Oh, March 5th.18MR. WEBER: March 5th.19THE WITNESS: Where did -- what did I do with20

that?21Okay. It’s three documents, I’m sorry.22MS. GLADING: The data that you wanted to23

compare this benchmark against --24THE WITNESS: Um-hmm.25


MS. GLADING: -- where did you go -- where is1the memo indicating that you were collecting this data,2you were assessing this data or that you had this data3that you wanted to compare it against?4

THE WITNESS: I’m sorry, I’m just not --5MS. GLADING: I’m sorry. This is only half6

of the puzzle.7THE WITNESS: Right.8MS. GLADING: The population survey. The9

other half is --10THE WITNESS: Not even half, it’s a11

benchmark.12MS. GLADING: Okay. And the main part is the13

consent and the search data, right?14THE WITNESS: And stops and arrests and15

everything.16MS. GLADING: What were you doing to get --17

where was the development of the consent and the search18data at this point that you knew you needed a19benchmark?20

THE WITNESS: As I said before, I came up21with a list of the data that I would like to see to do22an analysis. We hadn’t really gotten to how to get23that data, it just came. I didn’t realize at the time24it was already -- some of it was already being25


collected.1MR. WEBER: Did you have an understanding as2

to how your request for certain data would then get3relayed to the appropriate individuals to then go out4and collect that data to bring it back to you for your5review?6

THE WITNESS: Well, I assume -- my memo was7to Paul Zoubek. If he agreed with this approach, we8would then meet with State Police and say can you get9us this information.10

MR. WEBER: Now, this is March 5th, 1999. 11And you know that you’ve got to produce this interim12report by April 20th, 1999.13

THE WITNESS: As I said, I am not certain14when the date of April 20th, the Soto decision, became15-- when I was told we’ve got to get this out by the1620th. I suspect it was after this because I would have17panicked.18

MR. WEBER: You suspect it was after this19March 5th memo?20

THE WITNESS: Yeah, because at this point on21March 5th without having any information, I don’t know22what I would have thought about writing.23

MR. WEBER: Did you have any idea as to how24long -- if Zoubek got your memo on March 5th and he25


stamped it approved and said let’s go forward and do1this Turnpike population survey, did you have any2understanding as to how long it would actually take to3conduct the survey and amass the information and get4the results?5

THE WITNESS: No. But certainly wouldn’t6have been able to do it by April 20th. I mean that7just wasn’t feasible.8

MR. WEBER: Well, did you think that it would9be able to be -- that it certainly would be able to be10completed and the results provided to you prior to the11June deadline that you --12

THE WITNESS: I think we did talk about that13that might be -- putting aside seasonal adjustment14problems that we would not be able to account for, that15it might have been possible to do it by June.16

MR. WEBER: We just put three documents in17front of you. The first is G -- oh, sorry.18

MS. GLADING: Just one second. I’m sorry,19Scott.20

Back on the March 1st memo. Did it ever come21to your attention or did you know at this point in time22that the Department of Justice had asked for the23consent to search data and the State had objected to24that request?25


THE WITNESS: I was not aware of that then.1MS. GLADING: Did you ever have a2

conversation with George Rover about consent to search3data and its validity in terms of determining whether4racial profiling is a problem?5

THE WITNESS: I never had a conversation with6George Rover.7

MS. GLADING: On that did you say?8THE WITNESS: Well, George used to work with9

me. I know George quite well. I’ve never discussed10with George the significance -- I mean right up to the11present moment, the significance of consent numbers.12

MS. GLADING: Thanks.13MR. WEBER: Three documents that we put in14

front of you. The first is GC002348 and stapled to it15is OAG001659. I believe that these two documents were16stapled by my group of people and not by the AG’s17Office. But the GC002348 is a memo to the file --18

THE WITNESS: I’m sorry, could you give me --19MR. WEBER: Sure. Memo to the file --20THE WITNESS: -- oh, okay, I got you, 2348?21MR. WEBER: Memo to the file from Paul22

Zoubek, March 16, 1999.23THE WITNESS: Yes, sir.24MR. WEBER: And attached to it is the memo25


from Paul Zoubek to Deputy Director Wayne S. Fisher to1you and to Debra Stone. Subject, State Police review2materials.3

The second document is a March 16, 1999 memo4to the file from then Attorney General Peter Verniero. 5That’s OAG003548 and it has a deposition exhibit6sticker on it identifying it as P-48.7

THE WITNESS: Yes, sir.8MR. WEBER: And the third document is an9

undated memorandum from Sergeant Gilbert to Colonel10Williams, re: Justice Department Inquiry. It is 11GC002697 through 2700.12

My first question is, have you seen any, all,13some of these documents before?14

THE WITNESS: I’ve seen them as part of this1590,000 pages of document release.16

MR. WEBER: Okay. Mr. Zoubek’s memo to the17file and Mr. Verniero’s memo to the file indicate that18for the first time they became aware of the existence19of certain police documents, State Police documents. 20And Mr. Zoubek’s memo specifically identifies you as21being present at a meeting, along with Deputy Director22Wayne Fisher; AAG George Rover; Christine Boyle, Chief23Research and Evaluation Section; and DAG Michael24LoGalbo. And that the documents were received from25


Lieutenant Thomas Gilbert. Do you remember being1present at that meeting?2

THE WITNESS: Yes.3MR. WEBER: What were the documents that were4

received from Lieutenant Gilbert at that meeting on5March 15th?6

THE WITNESS: They included consent --7compilations of consent numbers like, I’m not sure it8was exactly this third document, 2697, something to9that effect.10

MR. WEBER: I’d like you to take a look at112697 through 2700. That’s the undated memo from12Sergeant Gilbert to Colonel Williams. And look at it13for me, if you would, please, and after you review it,14let me know whether the information presented in this15document was the same kind of information, either16exactly or in sum and substance, to the information17that was provided at the March 15th, 1999 meeting.18

THE WITNESS: As to information concerning19the statistics as opposed to these other --20

MR. WEBER: yes.21THE WITNESS: Yeah. This is similar to,22

consistent with numbers or compilations that we saw on23the 15th.24

MR. WEBER: Did you review the information25


that Sergeant Gilbert -- Lieutenant Gilbert presented1at that March 15th meeting?2

THE WITNESS: Yeah.3MR. WEBER: Okay. You read that information?4THE WITNESS: Well, some of -- yeah, some of5

the compilations, yes.6MR. WEBER: Any explanation given as to why7

this information had not been previously provided to8the AG’s Office?9

THE WITNESS: No.10MR. WEBER: Anyone ask?11THE WITNESS: Not that I recall, but I didn’t12

know that it had existed so I just assumed we were just13getting it.14

MR. WEBER: How was it presented to you? 15What did Lieutenant Gilbert say when he handed it over?16

THE WITNESS: I don’t believe Lieutenant17Gilbert was at that meeting. I mean I might be wrong,18but I think that this is materials that were turned19over and we had an internal meeting in Paul Zoubek’s20office.21

MR. WEBER: Okay. And Paul identified that22these documents were received from Lieutenant Gilbert,23but not -- Lieutenant Gilbert wasn’t at the meeting and24said here, I present this to you, correct?25


THE WITNESS: Yeah, I don’t think he was1there.2

MR. WEBER: Did Mr. Zoubek -- well, why don’t3we just do it more generally.4

What did Mr. Zoubek say when he identified5for the group of people set forth in this memo? What6did he say about this material that he had received7from Lieutenant Gilbert?8

THE WITNESS: That we just received this from9the State Police and that we should look at it. And we10looked at it right then and focused on the consent11numbers, the consent to search numbers.12

MR. WEBER: And why did you focus on the13consent to search numbers?14

THE WITNESS: Because the numbers are 8015percent, 85 percent, sometimes 89 percent minority. 16That’s a high percentage compared to the stop numbers17that we had seen in the Soto litigation which were much 18lower.19

MR. WEBER: Had any of this information been20previously known by the Attorney General’s Office as21far as the percentages that related to the consent to22search in either the Moorestown or the Cranbury23barracks?24

THE WITNESS: At the time I did not know25


that. Obviously, I’ve had the benefit of reviewing1many of the documents that you showed me and you will2show me from this public release of documents. But at3the time I did not know that anyone had seen numbers4like this.5

MR. WEBER: Was there any expression of6concern by anyone at this meeting that this may now7have an impact on what needed to be said in the interim8report or how the Review Team proceeded?9

THE WITNESS: Yes. The numbers were10significant. I don’t mean that as a pun,11statistically, and were clearly were going to have an12impact on the interim report.13

MR. WEBER: In what way?14THE WITNESS: Well, the stop numbers that we15

had at that point were arguable for the same reason16that there was argument made in Soto. A question about17the benchmark, is one standard deviation significant? 18All of these statistical type questions. These numbers19were frankly a different order of magnitude in terms of20whenever you have minorities subjected to 80 or 8521percent of a given discretionary behavior, that22certainly raises a question, or my phrase of Batson23type of burden shifting, to explain that. To show that24race did not play a role. 25


MR. WEBER: If you take a look at the third1page of this document, this is the undated Gilbert2memo. At the top Sergeant Gilbert states, “At this3point we are in a very bad spot.” 4

Was there any discussion amongst the group of5people identified in Mr. Zoubek’s March 16th memo about6that opinion or any other opinions expressed by7Sergeant Gilbert about the, for lack of a better word,8bad nature or the higher magnitude of these statistics?9

THE WITNESS: I missed the first part of the10question, I apologize.11

MR. WEBER: Okay. Sergeant Gilbert, on Page123 of this memo, states, “At this point we are in a very13bad spot.” There is other opinion in here in this memo14talking about how these statistics frankly are not15good. They seem to indicate that there is, in fact,16racial profiling and they seem to support the17contention that certain troopers were engaging in18racial profiling. Was there any discussion amongst the19group of people identified in Mr. Zoubek’s March 16th20memo about Mr. Gilbert’s opinions on this?21

THE WITNESS: Eventually. It might not have22been in that first meeting. My recollection is we got23material. We looked at a few things and then we went24back to our offices to read and digest some material. 25


At some point I did see this statement, “At this point1we are in a very bad spot.”2

MR. WEBER: Did anybody pose the question of3why didn’t we get this information earlier?4

THE WITNESS: I know in my own mind I had5that question. I don’t know that I posed it to anyone.6

MR. WEBER: You didn’t express it to anyone?7THE WITNESS: I was concerned. I was, you8

know, concerned that we should have seen this before. 9I probably did express that to Zoubek.10

MR. WEBER: You had testified earlier about,11you know, missing data and the inferences that can be12drawn from data that is missing. I mean this now13appears to fill in a pretty big hole, doesn’t it?14

THE WITNESS: Well, the missing -- I mean15this doesn’t fill in missing data. It’s its own set of16data. It leads to its own set of inferences.17

MR. WEBER: Right. But -- but it’s still18along the same lines of earlier that the Division was19taken to task for their being missing data. People not20complying with SOP F3. So there is sort of an issue21now as to whether or not records are complete. Whether22or not the numbers are what they’re supposed to be. 23Whether or not people are complying with SOP’s. You24know, now you all of a sudden are provided with25


information that, you know, goes to the very heart of1whether or not racial profiling was going on on the2Turnpike. Wasn’t there some concern maybe somebody was3hiding the ball here?4

THE WITNESS: On my part? Yes, I was5concerned.6

MR. WEBER: Did anyone express that concern7at the AG’s Office?8

THE WITNESS: I believe that there was a9general feeling in that meeting and certainly from10Paul, and Paul can speak for himself, that these11numbers were highly probative. They were not good. I12don’t disagree with Detective Gilbert’s analysis. And13that, yeah, we should have seen them sooner.14

MR. WEBER: Aside from expressing those15concerns, did anybody act on those concerns to try and16get to the roof of why this information had not17previously been provided to the Attorney General’s18Office?19

THE WITNESS: That I don’t know.20MR. WEBER: Anyone make that suggestion that21

maybe Mr. Zoubek or somebody else pick up the phone and22make some phone calls to ascertain why at this late23date this information was finally being provided?24

THE WITNESS: I don’t recall there being a25


specific suggestion on the course of action, but that1may have happened, I don’t...2

MR. WEBER: Any expression as to why Mr.3Zoubek and Mr. Verniero felt it necessary to do memos4to the file to memorialize that the information had5just been provided to the AG’s Office?6

THE WITNESS: I didn’t know about those memos7until very recently.8

MR. WEBER: Well, did anybody make a9suggestion to Mr. Zoubek or Mr. Verniero that hey, this10stuff is so probative and so important and we received11it at such a late date that maybe we ought to document12that it wasn’t our fault?13

THE WITNESS: I never had any discussion with14Paul about anything like that.15

MS. GLADING: Do you recall George Rover16saying anything at this meeting or being asked anything17in this meeting about Department of Justice statistics18that had been developed two years before?19

THE WITNESS: No. But for the fact that Paul20Zoubek’s memo says that George was there. I didn’t21even recall that George was at this meeting.22

MS. GLADING: Did you subsequently have any23conversations with George Rover about numbers that had24been developed for the Department of Justice?25


THE WITNESS: No.1MR. WEBER: Did the provision of this2

information to Mr. Zoubek answer any of the questions3that you had previously posed in some of the prior4memos that we’ve reviewed as far as, you know, here’s5my wish list of information that I need?6

THE WITNESS: Yeah. It was clearly -- we now7had a data base on an issue that was clearly relevant8and in this context highly probative of whether or not9race had played some part in the exercise of police10discretion, based on this broad definition of11profiling.12

MS. GLADING: Where was your own data13analysis process at this point?14

THE WITNESS: My own -- I’m not sure --15MS. GLADING: Had the decision been made at16

this point that there needed to be a speeded-up interim17report on the racial profiling issue?18

THE WITNESS: I don’t know again when exactly19the speeding up occurred. I don’t remember.20

MS. GLADING: Okay. Had you started -- what21did Chris Boyle tell you prior to this meeting about22where you were at in your own data collection?23

THE WITNESS: I don’t recall specifically. 24She was crunching some numbers. That had radio logs,25


patrol charts. 1MS. GLADING: So she was starting from2

scratch and she was crunching numbers?3THE WITNESS: Yes -- when I say from scratch,4

from, yeah, from patrol logs, traffic logs, whatever5they call them.6

MR. WEBER: Mr. Susswein, three of the7documents we’ve previously discussed were memos that8you authored in March of 1999. March 1, 1999 memo,9which the subject is Supplement to Outline for Proposed10State Police Review Teams. The March 5, 1999 memo,11which deals with the Turnpike Population Survey. And12the March 12, hastily-prepared memo, that deals with13Interim Strategies for Responding to Racial Profiling14issues. 15

In each of these memos you have identified16certain information that you need or that would be17helpful, you believe would be helpful, to the State18Police Review Teams’ analysis and efforts. And then lo19and behold, on March 15th, 1999 this highly-probative20information is presented to Mr. Zoubek. Was there any21indication to you that your call for the information in22these three different memos, March 1, March 5 and March2312, prompted the State Police to conduct a review of24the documents they had to respond to the requests for25


information contained in your memos, and that’s what1then led to the production of this additional2information on March 15th?3

THE WITNESS: I really don’t know what4happened to my memos in terms of what was communicated5to the State Police in terms of document production.6I just wasn’t involved in those discussions between the7Attorney General’s Office and the State Police.8

MR. WEBER: Did you find it odd that of all9the information that the State Police had been10providing or that the Attorney General’s Office had11amassed, that it lacked the information that you were12calling for in these three memos; March 1, March 5 and13March 12th?14

THE WITNESS: No, because I didn’t realize15what kind of data they were collecting. Frankly, I was16surprised they even had consent numbers. You know,17that they had bothered to record them at anytime.18

MR. WEBER: Well, there was a requirement,19was there not, to get a consent to search form signed20by an individual who was consenting to the search,21correct?22

THE WITNESS: Right. But I mean that would23be the form. I didn’t realize that anyone had actually24bothered to review them for the purposes of compiling.25


MS. GLADING: Back on February 25th when Mr.1Zoubek sent you and Debra Stone and Wayne Fisher a memo2outlining what the assignments would be, did Mr. Zoubek3or anyone else ever say to you, George may have some of4this information, check with George Rover?5

THE WITNESS: No.6MS. GLADING: Who did you talk with in trying7

to ascertain whether there might be any information8already compiled?9

THE WITNESS: I didn’t talk to anyone about10that. Information was being provided to us through --11I’m concerned it was Mike LoGalbo.12

MS. GLADING: Beg your pardon?13THE WITNESS: Mike LoGalbo provided to me and14

Chris information, you know, boxes of information at15various times. I wasn’t making any specific requests.16

MS. GLADING: So how were you going to get it17if you weren’t making specific requests?18

THE WITNESS: I don’t -- I wasn’t the one who19was asking for the information. There were other20people who were doing that.21

MS. GLADING: Who was doing it?22THE WITNESS: I don’t know exactly. It would23

be either Paul Zoubek, Mike LoGalbo --24MS. GLADING: I’m sorry. The statistical25


part of this was your task, right?1THE WITNESS: Well, to compile it, yes. I2

was supervising that.3MS. GLADING: You were supervising it. So4

how were you -- how did you ascertain that the5information you needed was being collected? Who did6you talk to?7

THE WITNESS: Well, as I said, we were8getting boxes of information. Chris Boyle was9compiling that.10

MS. GLADING: We were getting boxes of11information, I’m sorry, from whom?12

THE WITNESS: Well, from the State Police,13but it was through Mike LoGalbo who was the custodian. 14Everything had -- I guess you call them now Bates15numbers. I don’t know what that refers to, but they16had some kind of scan type of numbers on them.17

MR. WEBER: Mr. Miller and I are smiling at18each other because he said he didn’t know what Bates19numbers referred to and the litigators in the room20unfortunately live with Bates numbers all the time.21

THE WITNESS: Okay, yeah. Obviously as it22gets to the case name, but I --23

MR. WEBER: It was actually a physical stamp24that was made the Bates company and it was called Bates25


stamping. You physically stamp on each document the1new page number. It’s come to be referred to as Bates2stamping for time immemorial even though nobody3physically uses the stamp anymore.4

MS. GLADING: Thank you.5MR. WEBER: Sorry.6MS. GLADING: The -- I’ve lost my train of7

thought.8MR. WEBER: Can you read back? Do you have9

the ability to read back the last question and answer,10please?11

MS. GLADING: That’s okay.12MR. WEBER: No?13MS. GLADING: Go off the record.14MR. WEBER: Well, okay. Actually before we15

go off the record, I wanted to follow up on some of the16questions that you asked.17

You were supervising the collection of this18data that Chris Boyle was --19

THE WITNESS: Well, I was supervising her.20MR. WEBER: Okay. Did you -- you know, you21

put these memos together. You sent them up to Paul22Zoubek. Did you share with Chris Boyle the information23that was contained in those memos? Wouldn’t that have24impacted her duties?25


THE WITNESS: I really don’t know whether I1cc’d Chris or not. Not necessarily. I mean her job2was to crunch the numbers. Documents were coming in3and her job was to be able to read them, like patrol4charts and logs, what have you, and put them into a5data base, to compile them.6

MR. WEBER: I guess, and I’m hoping Ms.7Glading and I are on the same page here, I still don’t8understand what she was crunching. What numbers --9what analysis was she charged to conduct?10

THE WITNESS: There was materials that were11coming in in boxes that were provided to her. 12Obviously they were coming from the State Police. I’m13not sure through whom. She also did some work in terms14of some of the information that was available like on15the computerized criminal history data base. There are16other computerized data bases, Promis Gavel, that we17had access to.18

MR. WEBER: All right. But still, my19question is, what was she looking, what analysis was20she conducting? Was she conducting an analysis of stop21information? Was she conducting an analysis of consent22to search information? 23

THE WITNESS: Oh --24MR. WEBER: Was she conducting an analysis of25


arrest information? And how did her analysis pertain1to the issue of racial profiling?2

THE WITNESS: What she was told is, because3if I’m reading the reports and the patrol logs, every 4piece of information it could be gleaned from them. 5That would include all the steps.6

MR. WEBER: So she was putting together a7data base and in the data base you could input8information about the race of the individual, the sex9of the individual, the age, what they were stopped for,10what they were charged with. All that sort of11information she was collecting and putting into the12data base?13

THE WITNESS: Yeah. I don’t know -- in terms14of what they were charged with, I suppose. I was more15concerned with the stops, arrests, frisks, anything16that would show up in these reports.17

MR. WEBER: Was there input into the data18base information about consents to search?19

THE WITNESS: I don’t recall specifically. I20mean that’s knowable thing. Whether you can get them21off patrol charts and whatever.22

MR. WEBER: Well, there would be the consent23to search forms, right?24

THE WITNESS: I don’t know that we had those.25


MS. GLADING: Did you ask for them?1THE WITNESS: I didn’t ask for anything.2MS. GLADING: Well, at this point you had3

identified them as an important indicator.4THE WITNESS: Right.5MS. GLADING: So did you tell someone we need6

to ask for these?7THE WITNESS: I sent the memo to Paul Zoubek.8

I was not --9MS. GLADING: Did he tell you that he had --10THE WITNESS: I was not negotiating or11

speaking with anyone about turning over documents. 12MR. WEBER: Who was?13THE WITNESS: I’m not sure exactly. Paul14

Zoubek would know. And I know that Paul (sic) LoGalbo15was the recipient or the custodian of them.16

MR. WEBER: I mean didn’t you have a concern17that, you know, the State Police were just sending you18whatever they wanted to send you and that there was --19without an express request, there was nothing to ensure20that you would get the information that you wanted21Chris to look at?22

THE WITNESS: I’m sure there were express23requests, I just wasn’t the one making them.24

MS. GLADING: Did you define the time period25


that you wanted to analyze? Did you define any1specifics at all about what you wanted to analyze like2you did with the population survey memo that you wrote?3

THE WITNESS: I don’t know that I did that4with the population -- the population survey by5definition could only be prospective. I mean you can’t6go back in time no a survey. But I don’t recall making7the specific request. Obviously, it would be anything8in the Soto era.9

MS. GLADING: What would that be?10THE WITNESS: The mid-nineties and on.11MS. GLADING: So you were just -- whatever12

they sent you, you were willing to accept as the basis13for the -- 14

THE WITNESS: Well, I --15MS. GLADING: -- for the statistics on which16

the interim report was based?17THE WITNESS: No, that’s not fair. I wasn’t18

making specific requests and I wasn’t checking up on19them, whether they were complying with the specific20requests. I’m sure someone was, it just wasn’t me and21I’m not sure who that was.22

MR. WEBER: Well, did Chris Boyle at anytime23come back to you and say hey, Ron, you know, I’ve24gotten documents but we’re still missing these25


categories of information for me to conduct my1analysis?2

THE WITNESS: Not that I recall, no.3MR. WEBER: Do you know if she expressed that4

concern to you anyone other than you?5THE WITNESS: I don’t know.6MR. WEBER: Did she give you any status7

reports or updates on how her analysis was going?8THE WITNESS: Yeah, occasionally. She would9

just say how difficult it is to read all of these10reports and try to come up with a system for back-11loading the information.12

MR. WEBER: Did she ever indicate to you that13there was certain information that would be helpful to14her and her analysis but she hadn’t yet received it?15

THE WITNESS: I don’t recall that.16MS. GLADING: Did she have people working17

with her on this?18THE WITNESS: She might have had one person19

working with her.20MS. GLADING: And what was the time frame you21

expected her to conduct this within in order to22ascertain whether or not there was racial profiling?23

THE WITNESS: Well, that changed. I mean24originally it was we wanted to have something by June.25


At some point when the time period was pushed up and1the consent compilations, we had these materials, I2told her to stop crunching individual reports. That we3already had enough aggregate statistics to get a feel4for what was going on.5

MR. WEBER: Did you already have the6information about the consent to search data that Mr.7Zoubek received from Mr. Gilbert on March 15th at that8point in time?9

THE WITNESS: At what point in time?10MR. WEBER: The point in time where you told11

Chris to stop crunching numbers?12THE WITNESS: Well, I told her to stop after13

we had these consent numbers.14MR. WEBER: Because it was --15THE WITNESS: It was duplicative.16MR. WEBER: -- probative enough and therefore17

duplicative of what she was doing.18THE WITNESS: And the numbers that she was19

coming up, what she reported to me was, for stops, for20example, they were consistent with the aggregate21compilations that we were receiving. In other words,22it was verifying that what the State Police had23compiled was accurate. That being so, there’s a24diminishing returns argument in terms of continuing to25


crunch individual patrol logs.1MR. WEBER: When you say on the stop data it2

had confirmed what the State Police had already3compiled, what information are you referring to?4

THE WITNESS: All of this information. We5were getting compilations of information after March615th. Chris before then had been crunching numbers7from patrol charts, which is a very tedious, difficult8process. She told me that the numbers that she was9getting when she put them together were consistent with10the percentages that -- the materials the State Police11had already compiled, including the Soto data. And at12that point I told her, all right, then stop crunching13patrol charts.14

MR. WEBER: So in addition to the consent to15search data that you was received on March 15th, there16was also compilations about stop data that was17provided?18

THE WITNESS: Yeah. And they’re in the19interim report.20

MR. WEBER: We put two additional documents21in front of you, OAG001694 through 1695.22

MS. GLADING: Scott, before we go there, can23we go off the record?24

MR. WEBER: Sure.25


(Off the record)1MR. WEBER: Mr. Susswein, I just want to2

thank you for coming today and for your patience in3connection with our inquiry. Counsel, all counsel,4including the witness, have talked off the record. We5are going to bring Mr. Susswein back and we appreciate6him making himself available because we have another7deposition scheduled at two o’clock and members of the8committee will be present at that deposition.9

So counsel is going to work out with Mr.10Miller a new date. We’re tentatively discussing11Thursday, February 22nd at 10:00 a.m. back here at the12Capitol Complex, but we will, through Mr. Miller,13advise you of the date and time. And again, do14appreciate your cooperation.15

THE WITNESS: Thank you.16MR. WEBER: Thank you.17

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174

C E R T I F I C A T I O NI, JAMES V. BOWEN, OF J&J COURT TRANSCRIBERS,

INC., a Notary Public and Electronic Sound Recordingoperator, do hereby certify that prior to the commencement of the examination, RONALD SUSSWEIN was duly sworn to testify to the truth, the wholetruth, and nothing but the truth.

I DO FURTHER CERTIFY that the foregoing is atrue and accurate transcript of the testimony as takenby electric sound recording before me at the time,place, and on the date hereinbefore set forth.

I DO FURTHER CERTIFY that I am neither arelative nor employee nor attorney or counsel of any ofthe parties to this action, and that I am neithera relative nor employee of such attorney or counsel,and that I am not financially interested in the action.

Date: February 19, 2001_______________________________JAMES V. BOWENNotary Public of the State of New Jersey

My Commission expires___________________

________________________________________Patricia A. Kontura, AOC #234