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The vexing issue of whether police should use profile information in deciding which motorists to stop and search was aired during heated debates in the New Jersey Attorney General’s Office 13 years ago. Some prosecutors raised a red flag over what was then known as “drug-courier profiling,” calling it dubious and unneeded at best and unconstitutional at worst. On the other side were advocates of aggressive drug interdiction who wanted to put a stop to New Jersey’s reputation as the main route for carrying illegal substances north to New York markets. Those who wanted to scrap the practice lost. The New Jersey state police continued to profile until Attorney General Peter Verniero acknowledged in April 1999 that the practice resulted in the systematic stopping of minority motorists. The 1988 internal battle is among many new disclosures in the racial profiling saga that are spelled out in 4,000 transcript pages released this month from 34 depositions taken by lawyers for the state Senate Judiciary Committee. The committee will open hearings beginning next Monday on racial profiling. In particular, the committee wants to know whether Verniero, now a state supreme court justice, was forthright in his confirmation testimony about when he learned of the severity of the racial profiling problem. The prosecutors who criticized drug-courier profiling were from the Appellate Bureau of the attorney general’s Division of Criminal Justice: Anne Paskow, who was and is chief of the Appellate Bureau; her No. 2 at the time, Debra Stone; and Deputy Attorney General Meredith Cote. Cote concluded in a June 1988 memo to Paskow, which was passed up the division line, that profile stops are unconstitutional and unlawful based on various U.S. Supreme Court and other precedents. Paskow, four months earlier, wrote in a memo that profiling added nothing to law enforcement goals and, in fact, “muddies the waters” and could lead to police engaging in conduct that was “clearly impermissible.” Cote, according to the transcripts, was disturbed by state police statistics that showed a disproportionate number of minority motorists being pulled over. Last month, Stone testified that such a conclusion was not surprising to her because when she drove on the New Jersey Turnpike in 1988, she could see a disproportionate number of blacks and Hispanics flagged by troopers. Stone is now an assistant attorney general and No. 2 in the division as deputy director of operations and chief of staff to Director Kathryn Flicker. Leading the charge for drug-courier profiling was New Jersey’s drug-policy guru, Ronald Susswein. At the time, he was an assistant attorney general and a special assistant to the director of the Division of Criminal Justice, Donald Belsole. Since October, Susswein has been a special assistant to Attorney General John Farmer Jr. for policy. Susswein, who has trained state and local police on stops and search and seizure procedure since the 1980s, strongly disagreed with the Appellate Bureau lawyers. He wrote a responding memo in September 1988, which read in part: “It was suggested that I would be incredibly na�ve in thinking that the police could develop and implement a profile which does not, at least sub rosa, consider the driver’s race or Hispanic origins. Perhaps so. I nonetheless submit that we must assume good faith” on the part of the police. A permutation of the same argument was reprised in 1996. That was when the attorney general at the time, Deborah Poritz, had to decide whether to appeal the decision of Gloucester County Superior Court Judge Robert Francis, who dismissed 14 drug cases and found that troopers had engaged in racial profiling. Again, the division’s appellate lawyers expressed reservations about an appeal, primarily because they believed the facts were stacked against the state and that an appeal would create bad law for law enforcement. Paskow testified last month that in 1996, when Poritz was seeking a recommendation on whether to appeal, Paskow declared at meetings her doubts about the state police position that troopers were not using race as a factor in making stops and searches. “I was also concerned with whether or not it was true, whether or not there was this conduct going on … [I said], Are we confident that the defendants’ statistics [produced for Judge Francis showing minorities being pulled over disproportionately] are wrong?” Ultimately, Paskow and others testified that Poritz, now chief justice of the state supreme court, took the word of the state police top brass that racial profiling was not taking place. She went forward with the appeal, which dragged on until her successor, Verniero, halted it the day the state’s brief was due. That was the same day Verniero released an interim report by Criminal Justice Director Paul Zoubek acknowledging that racial profiling “is real, not imagined.” CONSTITUTIONAL QUERY The question of the wisdom and legality of police using drug-courier profiles to decide which motorists to stop came to the fore in early 1988. Stone testified last month that the request to research the matter came from Belsole’s deputy director, John Holl. She said she believes that the query was triggered by a case on appeal involving a trooper who acknowledged on the record that he stopped a suspect based on the profile. She said in a February 1988 memo to Holl that it was the first time she had seen a trooper “publicly admit to using a drug courier profile,” adding that up to that point she had no knowledge of profiling. Ultimately the research assignment went from Paskow to Stone to Cote, who produced her memo calling the practice unconstitutional. That memo led to several others during the next six months. In passing along Cote’s memo, Paskow handwrote that the practice added nothing to law enforcement’s goals. She said an officer still needed to be able to justify the stop on specific facts. For that reason, the state should stop profiling and stick with the facts of each stop. Cote’s conclusions were based in part on figures showing a disproportionate number of blacks being stopped, and she wrote that she brought up this issue at a meeting, though Stone and Paskow could not remember such a discussion. But, according to Judiciary Committee lawyer Scott Weber’s questioning of Paskow and Stone last month, Cote concluded in 1988 that profiling was wrong even if it was kept race-neutral, in part because of the disproportionate results. Stone added in her testimony that although race was not to be used in the drug-courier profiling, race was indeed a factor in similar profiles used in other states and cited in federal case law. During the 1980s and much of the 1990s, the federal Drug Enforcement Administration pushed a program dubbed Operation Pipeline, which used a profile that included race to interdict drugs on highways as one factor to be considered in deciding which motorists to stop. The state police subscribed to Operation Pipeline for years. The anti-profile position of the Division of Criminal Justice’s appellate bureau in 1988 was that “to use … a drug courier profile was going to divert [police] attention from probable cause and reasonable suspicions and get into an area where they probably shouldn’t be,” Stone said. Ultimately, though, the appellate lawyers lost the argument, with Stone and Paskow testifying it was drug-policy czar Susswein who carried the day for the state police. When asked by Judiciary Committee lawyer Weber, an associate with the Newark, N.J., office of Los Angeles’ Latham & Watkins, “What type of input did you have on the type of drug courier profile that the police were using at that time?” Paskow answered, “None.” Stone, when asked why Susswein was at a critical meeting in July 1988 in Belsole’s office to hash out what course to take on the profiling issue, said she didn’t know. “I didn’t ask him to come.” Both appellate attorneys testified that it was Susswein’s persuasiveness that won out. They said he argued that the lawyers weren’t putting enough trust in the state or local police, and that if police wanted to use the practice they should be allowed to do so. For his part, Susswein agreed, in his recent testimony, that he argued forcefully to retain profiling. However, he repeatedly said it was always to be race-neutral, explaining that racial profiling was “a different beast” from drug-courier profiling. He maintained that case law, then and as it has evolved, permits the use of such profiles. “There never was and continues to be no legal question about the use of profiles.” He added that he, too, pushed for police to have a “reasonable articulable suspicion” to make a stop or ask for consent to do a search, but he also acknowledged that this refinement did not come until after the 1996 case before Judge Francis. He testified that he had done legal research on the issue before the 1988 flap, but added, when asked, that he did not memorialize it in a memo. Susswein said that as early as 1986, after a state Appellate Division opinion, State v. Kuhn, 213 N.J. Super. 275 (1986), he began to offer training to state police on the issue. He said Kuhn held that police could not use race or ethnicity in drawing inferences in criminal activity. In that case, two officers stopped a white suspect in a high-crime area because he was seen talking with two Hispanic men. Susswein also said last month that up until racial profiling hit the front pages in 1998, the state police fiercely guarded its independence, not inviting any lawyers from the Attorney General’s Office to even review their educational material used to instruct troopers about stops, searches and seizures. In 1988, Susswein laid out in memos his strong disagreement with Deputy Attorney General Cote’s analysis. In 1987, Susswein had drafted the Comprehensive Drug Reform Act of 1987 and the action plan to implement the act. Two directives in the action plan, adopted by the state in its war on drugs, detail the use of profiling. In defending the action plan and responding to Cote’s attack on profiling, Susswein wrote in a September 1988 memo: “If the conclusion in DAG Cote’s memorandum were to be adopted as official state policy, these important provisions of the statewide narcotics action plan would have to be repealed or at least severely curtailed.” Susswein went on to say that Cote’s “conclusions of law would work as a fundamental reversal to our narcotics enforcement … . Needless to say, we should be loathe to do this unless it is absolutely clear that the Constitution forbids the use of such profiles … .” Susswein, Stone and Paskow all testified they were never told what the ultimate decision was in 1988. But based on the policy’s continuation, Belsole and the attorney general at the time, W. Cary Edwards, backed Susswein. In the spring of 1999, a year after the shooting of three minority men by two white troopers on the turnpike propelled racial profiling into the state and national spotlight, it was Susswein who played a role in negotiating with the Justice Department the state’s racial profiling consent decree. And it was Susswein who was the main author of the now-famous April 1999 interim report admitting that racial profiling was a reality in New Jersey.

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