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Just when you thought there couldn’t possibly be any new information about racial profiling by state troopers, more is on the way. New Jersey Superior Court Judge Walter Barisonek, whom the state supreme court appointed discovery manager for racial-profiling litigation, has ordered the state to hand over additional material to criminal defense lawyers. Barisonek, of Union County, issued his order Feb. 20. It was released for publication last week by the Administrative Office of the Courts. “We got most of everything we asked for,” says state Deputy Public Defender Joel Harris. Among the items to be turned over to the defense are records of all stops by troopers in the individual cases at hand, up to two years before the arrest on the same roadway, and two months after the arrest. The cases are set to return to the original judges in 10 New Jersey counties, with the bulk of the cases in Bergen, Burlington, Camden, Gloucester, Hunterdon and Middlesex counties. Both sides will have experts run statistical analyses on the new data in efforts to prove, or disprove, the existence of profiling in those individual cases. Some attorneys speculate that the New Jersey Supreme Court might issue a new administrative order seeking to have Barisonek try all the pending cases, in part to ensure uniform results and in part because he is so steeped in the nuances of the profiling issue. Harris says the defense would oppose such a move, just as it objected to the consolidation of the cases before a single judge for discovery purposes. Deputy Attorney General Paul Heinzel, the appellate lawyer in the Division of Criminal Justice who is handling the motions for the state, says through spokesman Chuck Davis that the state is satisfied with Barisonek’s order and is providing the information. No appeal is planned. Barisonek was named discovery manager in February 2000 at the state attorney general’s request. After the defense had won a trio of discovery motions in Bergen, Burlington and Hunterdon counties, the state asked the Administrative Office of the Courts for an administrative order consolidating all discovery issues before a single judge. Prosecutors had argued that they were getting conflicting rulings on privilege from various judges. The state also sought to have that single judge rehear the three motions on appeal. Richard Williams, administrative director of the courts, sent state prosecutors to the high court, which named Barisonek but denied the state a chance for what the defense characterized as a “do-over” on its lost discovery motions. Instead, the justices sent the trio of discovery appeals to an Appellate Division panel headed by Judge Edwin Stern. In June 2000, the Stern panel affirmed the lower courts’ rulings on the motions and set down guidelines for Barisonek. On Sept. 12, 2000, Barisonek filed a consent order in which the state was to turn over data on its best estimates of the number of vehicle stops, the number of consent searches and the racial makeup of the occupants of the cars stopped between Jan. 1, 1988, and April 20, 1999. The 1988 date is the earliest that state police conceded profiling was taking place, in the Gloucester County case of State v. Soto, 324 N.J. Super. 66 (Law Div. 1996). It was in Soto that a judge concluded, “the state police hierarchy allowed, condoned, cultivated and tolerated discrimination … in its crusade to rid New Jersey of the scourge of drugs.” It was on the latter date, April 20, 1999, that state prosecutors dropped their appeal in Soto and issued their interim report that finally acknowledged the existence of the profiling practice. Moorestown, N.J., solo practitioner William Buckman, who represents a number of the more than 100 defendants seeking indictment dismissals, says the state ought to drop these cases rather than trying them. He and Harris note that in all the cases before Barisonek, there has already been a finding of a colorable basis to suspect that racial profiling occurred at the stops leading to the arrests. “If the state insists on proceeding, they will have a rough road to hoe,” says Buckman, adding, “Why would the present administration decide to defend the record of the past administration? Racial profiling has long been admitted and proven.” But the state has maintained throughout that each case must be adjudicated on its own, that it would be irresponsible to toss more than 100 drug indictments without proof that the initial stop, search or arrest was improper. NEW DATA TO BE RELEASED Among the material the state must produce under Barisonek’s order are arrests resulting from the state police’s so-called hotel/motel program. Under that program, troopers asked motel proprietors to tip them off to patrons who might fit the profile of a drug courier. The judge, though, said the defense is entitled to only one-fourth of the arrest records stemming from the program, but he left it up to the defense to choose which 25 percent they want in any given year. The state also must turn over all documents relating to complaints and allegations of profiling made by troopers as well as by civilians. Troopers have brought several suits against the state alleging that they were ordered to engage in profiling. In addition, all documents relating to the misreporting of race by troopers must be produced, without redacting any names. If there is a claim of privilege in any of these items, the state must make a claim before Barisonek, who will review the documents in camera before deciding whether the defense is entitled to them. Finally, the judge ordered the state to hand over any documents reviewed or relied on by Special Deputy Attorney General James Gerrow at the pleas and sentencing of former Troopers James Kenna and John Hogan. The pair pleaded guilty last January to official misconduct and making false statements relating to their 1998 shooting into a van that they pulled over on the New Jersey Turnpike in southern New Jersey. Kenna and Hogan conceded they engaged in targeting minorities, saying it was a common practice condoned by superiors. Gerrow, in comments about the watered-down plea deal, supported the theory that the troopers were acting in a culture that condoned such behavior. Kenna and Hogan faced aggravated assault charges, while Kenna also faced an attempted murder charge, but they pleaded to the minor charges and received no jail, no probation and small fines. Both, though, had to forfeit their law enforcement careers.

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