NEW JERSEY STATE LEGISLATURE OFFICE OF LEGISLATIVE ... · JAMES V. BOWEN, Notary Public of the State of New Jersey, for the Offices of J & J COURT TRANSCRIBERS, INC., a ... JEFFREY

NEW JERSEY STATE LEGISLATUREOFFICE OF LEGISLATIVE SERVICES

IN RE: ) )

SENATE JUDICIARY ) TRANSCRIPT COMMITTEE INVESTIGATION ) OF

) ELECTRONICALLY ) RECORDED DEPOSITION

OF HONORABLE ALEXANDER WAUGH, JR.

Friday, February 23, 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 Law Offices of Smith,Stratton, Wise, Heher, & Brennan, 600 College Road East,Princeton, New Jersey 08540, commencing at 10:00 a.m.

* * * * * * *

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

Senate Democratic StaffBy: JO ASTRID GLADING, ESQ.

Latham & WatkinsBy: MICHAEL CHERTOFF, ESQ.

SCOTT LOUIS WEBER, ESQ.One Newark CenterNewark, New Jersey 07101

Office of Attorney GeneralBy: JEFFREY MILLER, Assistant Attorney General

ALLISON ACCURSO, Assistant Attorney GeneralRichard J. Hughes Justice Complex25 WE. Market StreetTrenton, New Jersey 08625

Transcriber, Patricia C. DupreJ&J COURT TRANSCRIBERS, INC.268 Evergreen AvenueHamilton, NJ 08619

(609)586-2311FAX NO. (609)587-3599

2

I N D E X12

WITNESSES PAGE3HONORABLE ALEXANDER WAUGH 44

5EXHIBITS:6W-1 Resume of Hon. Alexander Waugh 57W-2 Memo to Fred De Vesa 198W-3 Letter to Attorney General Poritz 259W-4 Memo to Fred De Vesa 3110W-5 Memo to Major Mattos 3511W-6 Memo to Attorney General Poritz 3712W-7 Memo from N. Stiles 4313W-8 Memo 5114W-9 Memo 5315W-10 Memo 5316W-11 Notes to phone call 7217W-12 Email 7418W-13 Memo of 12/12/96 meeting 8419W-14 Document request for documents 9020W-15 Draft of letter 9821W-16 Fax from G. Rover 11422W-17 Memo to G. Rover 11823W-18 Memo to A. Waugh 12024

3

W-19 Memo 12112

EXHIBITS (CONTINUED): PAGE34

W-20 Memo on 911 arrests 1215W-21 Letter from G. Rover 1226W-22 Fax to G. Rover 1247W-23 Draft of letter to M. Posner 1258W-23A Draft of letter to M. Posner 1269W-24 Memo to A. Waugh 12810W-25 Memo from G. Rover 13711W-26 Memo to P. Verniero 13912W-27 Memo from A. Waugh, Jr. 14213W-28 Email from A. Waugh, Jr. 15214W-29 Agenda for May meeting 15815W-30 Better copy of G-27 18416W-31 Memo from P. Verniero 18817W-32 Letter of November 5th 19118

19G-19A Agenda for May meeting 15820

21222324

Colloquy 4

12

THE CLERK: We’re on the record.3MR. CHERTOFF: Scott you want to swear the4

witness.5MR. WEBER: Yes, please. Judge Waugh, you6

can sit, if you’d just please raise your right hand and7repeat after me.8H O N O R A B L E A L E X A N D E R W A U G H, SWORN9

MR. WEBER: Thank you.10MR. CHERTOFF: Okay, again for the record,11

I’m Michael Chertoff, this is Scott Weber, we’re12counsel for the Judiciary Committee of the New Jersey13Senate, Jo Glading is counsel to the minority, I know14you have counsel present from the Department of Law,15and Public Safety, Jeff Miller and Allison Accurso. 16And the Court reporter. And just for the record again,17I’ll show you what we have marked previously as F-1,18for identification which is a copy of the motion and19resolution that empowers us to take testimony in20connection with this inquiry by the New Jersey Senate21Judiciary Committee and to the issue of racial22profiling.23

If you’d just state your name, and current24

Examination - Waugh 5

position for the record.1THE WITNESS: Alexander P. Waugh, Jr., I’m a2

Judge of the Superior Court currently assigned to the3Chancery Division, Family part. Sitting in Middlesex4County.5

MR. CHERTOFF: Judge, you’ve given us your6resume, which I’ve marked as W-1 and just for the7record, this is an accurate resume of your -- you know8professional experience from 1975 to the present?9

THE WITNESS: Yes.10MR. CHERTOFF: And that’ll be made part of11

the record.12Let me direct your attention to 1990, in 199013

did you leave private practice to become an Assistant14Attorney General at the Department of Law and Public15Safety?16

THE WITNESS: I actually left private17practice in April of 18 -- of 18, of 1989. To become18counsel to the -- the Attorney General, and I was an19Assistant Attorney General.20

MR. CHERTOFF: And you served as counsel to21the Attorney General until when?22

THE WITNESS: I’d have to look.23MR. CHERTOFF: Sure.24


THE WITNESS: There was a time when I had1three titles. Counsel to the Attorney General from2April 10, 1989, which is when I started, to September33, 1993. And on that date, I became Executive4Assistant Attorney General.5

MR. CHERTOFF: Now, who -- who hired you to6become counsel to the Attorney General.7

THE WITNESS: Peter Perretti.8MR. CHERTOFF: And you stayed in that9

position after the change, to Bob Del Tufo.10THE WITNESS: Yes.11MR. CHERTOFF: And what were your duties as12

counsel to the Attorney General?13THE WITNESS: My duties as counsel to the14

Attorney General were fairly amorphous, one of the15things that I was assigned to do was to establish the16State’s 911 program, which there was legislation which17had been enacted and when I started nothing had really18been done, so that’s one of the things that I worked19on, actually until I left.20

I also worked on appeals from minor21discipline in the State Police as the Attorney22General’s designee.23

And then after that, it was sort of just24


whatever I was asked to do.1MR. CHERTOFF: Now, there came a point in2

time in September of 1990, you also assumed the job of3legal affairs director?4

THE WITNESS: Yes.5MR. CHERTOFF: And what did that entail?6THE WITNESS: Legal affairs was a unit of7

attorneys in the Office of the Attorney General, that8represented the Department of Law and Public Safety as9an employer. Represented the Division of State Police10in certain types of matters.11

I think those were the principal duties.12MR. CHERTOFF: And then in -- in September of13

1993 you became Executive Assistant Attorney General?14THE WITNESS: Correct.15MR. CHERTOFF: And what were your duties in16

that position?17THE WITNESS: In that -- that was when acting18

Attorney General De Vesa became acting Attorney19General, and my duties were to sort of supervise the20civil enforcement departments, of her divisions of the21department. Primarily the division on Civil Rights,22the Division of Consumer Affairs, I think to a certain23extent I dealt with highway traffic safety, although24


that was sort of on and off, and there were some1others. And I had -- I think at that point or maybe2even before then, I had tort claims act settlement3authority.4

So I think up to a million dollars I’m not5sure. So sometimes I would be involved with civil6litigation that where a settlement needed to be7approved.8

MR. CHERTOFF: Now, you retained that9position of Executive Assistant Attorney General until10January 1998, when you left to become a Judge?11

THE WITNESS: Correct.12MR. CHERTOFF: And so you served also under13

Attorney General Poritz?14THE WITNESS: Correct.15MR. CHERTOFF: Under Attorney General Poritz16

did your duties change?17THE WITNESS: I don’t think they changed all18

that much. Some of the time when she was Attorney19General -- sorry -- because she had to disqualify20herself from certain litigation involving automobile21insurance, I was the Acting Attorney General for that22purpose, so I did -- there was a time when I spent23quite a bit of time on that, but other than that, I24


would say the duties were more or less the same.1MR. CHERTOFF: And you also served in that2

position under Attorney General Verniero?3THE WITNESS: Correct.4MR. CHERTOFF: And again under Attorney5

General Verniero did your duties change substantially?6THE WITNESS: Not fundamentally.7MR. CHERTOFF: All right, let me direct your8

attention first to the period of your service under9Attorney General Del Tufo.10

Did there come a point in time when you11became aware of a -- an SOP or directive from the State12Police regarding the issue of racial profiling, I think13it’s called F-55?14

THE WITNESS: I don’t specifically remember15that.16

MR. CHERTOFF: Did you become aware in17general in 1990 that there was discussion by the18Attorney General and the then Superintendent of State19Police about the issue of highway stops, and profiling20by the State Police?21

THE WITNESS: As a general proposition, yes.22MR. CHERTOFF: And how did you --23THE WITNESS: And in fact I think there were24


some television news articles or programs about it,1even in 1989, on WOR-TV.2

MR. CHERTOFF: How did you become aware of3the fact that the Attorney General Del Tufo and4Superintendent Dentino were addressing this problem?5

THE WITNESS: I can’t tell you specifically,6I just -- it was an issue that I knew about.7

MR. CHERTOFF: Did you --8THE WITNESS: And to some extent I guess in -9

- as legal affairs director, when I became that I would10have known about it, I don’t know that I was directly11involved in those discussions.12

MR. CHERTOFF: Do --13THE WITNESS: Because legal -- the legal14

affairs director was not involved in law enforcement15policy issues.16

MR. CHERTOFF: Do you -- did you attend any17meetings with Attorney General Del Tufo or18Superintendent Dentino in which the issue of profiling19and highway stops was discussed?20

THE WITNESS: Not that I recall.21MR. CHERTOFF: Now.22THE WITNESS: I -- I did -- I don’t know23

whether this is responsive to your question, I was24


aware of the fact that they were supposed to call in --1the race of the person that they were stopping, and at2one time as legal affairs director, I had a State car3that had a State Police radio, and I noticed that4wasn’t being done all the time, and sort of one of my5routine meetings with Colonel Dentino I happened to6mention it to him, and my recollection is that he --7put out some sort of reminder, but -- that’s the only8specific discussion of it I remember at that time.9

MR. CHERTOFF: Now, did there come a point in10time as legal affairs director, that you became11familiar with a litigation that was filed in Middlesex12County, by the Public Defender’s Office, challenging13the issue of selective enforcement at stops, on the14highway?15

THE WITNESS: I don’t really remember that16litigation, from that period of time.17

MR. CHERTOFF: Let me show -- 18THE WITNESS: I know I was aware of it I19

think at a later point, but I don’t know that I was20aware of it when it was going on, but I could have21been.22

MR. CHERTOFF: Let me show you F-2 for23identification and it’s a memo dated May 13, 1993 from24


you to Colonel Dentino regarding State v. Durant, and1if you’ll take a moment to look at that, and see if2that refreshes your memory?3

THE WITNESS: Well it’s on my letterhead, and4it has my initials on it, but I really don’t remember5it.6

MR. CHERTOFF: Do you remember anything about7this litigation, about the fact that there -- that8Judge Figarotta had ordered that there be some9discovery concerning the enforcement practices of 2010troopers.11

THE WITNESS: No.12MR. CHERTOFF: As legal affairs director, was13

this a matter that would have formed within your14purview, the issue of litigation concerning selected15enforcement by troopers?16

THE WITNESS: Not really, because it wasn’t -17- it wasn’t civil litigation, it was -- it was a18criminal matter.19

MR. CHERTOFF: Do you know what -- why you20would have written this memo to Colonel Dentino?21

THE WITNESS: I assume from the last22sentence, and the fact that I sent a copy to Jack Fahy,23that maybe he was doing some liaison between the24


Middlesex County Prosecutor and the State Police, which1would I guess indicate that maybe there was some legal2affairs involvement because I’m pretty sure at the time3that he worked for me in legal affairs.4

So I -- I really have to say I don’t remember5it at all.6

MR. CHERTOFF: Do you remember that there was7a point in time Deputy Attorney General Fahy did work8for you in legal affairs?9

THE WITNESS: Oh, yes.10MR. CHERTOFF: Looking at the next to last11

sentence, on the last page, our office will be briefing12the Middlesex County Public Defender’s Office, and13given the age of these cases and the procedural history14to date, it’s anticipated that a real effort will be15made to plea bargain most of these outstanding CDS16cases. Do you know anything about that issue the issue17of plea bargaining CDS cases, where there was challenge18to the enforcement practices of the State Police?19

THE WITNESS: No.20MR. CHERTOFF: Do you remember that there21

came a point in time in 1993, that the Middlesex County22Prosecutor dismissed perhaps as many as 100 or more CDS23cases, because of issues involving enforcement?24


THE WITNESS: I think I do remember.1MR. CHERTOFF: What do you remember about2

that?3THE WITNESS: Just that it happened, and I4

think my recollection is that when did you say it5happened?6

MR. CHERTOFF: In and around 1993.7THE WITNESS: My recollection is that -- that8

whoever was the Attorney General and I don’t know9whether I was Bob Del Tufo at the time, or whether Fred10De Vesa had become acting Attorney General.11

Wasn’t happy about it, because they didn’t12feel that they’d been consulted, and that -- I don’t13know that they would have done the same thing, but I14don’t -- that’s all I really remember.15

MR. CHERTOFF: In this period of time, again16when Bob Del Tufo was Attorney General was there17discussion about the issue of whether in fact there was18racial profiling, or improper highway enforcement going19on, at the office of the Attorney General?20

THE WITNESS: I would have to say just from21general recollection, that it was an issue that I was22aware of, and I believe that General Del Tufo and23Colonel Dentino decided to take a different approach to24


drug enforcement, and I know that -- I know that I1heard Colonel Dentino talk about that issue, to get2away from sort of stopping people who were driving up3and down the highways carrying some drugs, and trying4to make large busts of dealers.5

And that it was felt that that would be one6way of addressing the issue of racial profiling if --7in fact it was going on.8

MR. CHERTOFF: Do you remember if that policy9change was implemented by Colonel Dentino?10

THE WITNESS: I believe it was, but again I11wasn’t involved in law enforcement policy so this would12have just been -- stuff I sort of picked up over in the13office.14

MR. CHERTOFF: Now, did there come a time you15were actually asked in 1993 to address the issue of16racial profiling with State Police trooper commanders?17

THE WITNESS: Yes, and I think that was an18add-on sort of to things that we were doing at that19time, with respect to just the whole issue of equal20opportunity and the work place, and there was21throughout an extended period of time, in that general22area, I would go and talk with other people, go and23talk to different divisions upper management, about24


equal opportunity issues.1Related both to race, gender, basically all2

the protected class under -- under the state law3against discrimination. And I believe that when I4spoke to the troop commanders, I also added racial5profiling.6

MR. CHERTOFF: Now I’m going to show you7what’s been marked as S-3, for identification. Which8is a memo to you from Jack Fahy dated August 20, 1993,9regarding allegations of racial profiling by the State10Police.11

And ask you if you recognize the memo?12THE WITNESS: I do.13MR. CHERTOFF: Now at this point in time,14

Jack Fahy was reporting to you right?15THE WITNESS: I believe so yes.16MR. CHERTOFF: And you then reported to whom?17THE WITNESS: I would have reported to Fred18

De Vesa.19MR. CHERTOFF: Who was then the Attorney20

General? Or the Acting Attorney General?21THE WITNESS: I don’t think he was -- in22

August of ‘93, I don’t know whether he was de jure,23acting Attorney General or just sort of de facto. 24


Because there was a period of time when General Del1Tufo was going out and Fred was taking over, and I just2don’t remember when exactly he became Acting Attorney3General.4

It was -- it was more or less contemporaneous5with that, and I don’t know -- I doubt it was the same6day. That I became Executive Assistant Attorney7General Mike Bozza became First Assistant Attorney8General.9

And I think Mary Cupo-Cruz succeeded me as10legal affairs.11

MR. CHERTOFF: Let me -- let me focus you on12this memo, you were familiar at this point with a case13called State v. Soto, which was a Gloucester County14case, involving a challenge to by the enforcement15practices of the State Police on the highway?16

THE WITNESS: It’s -- yes, it’s mentioned on17page 2, of the memo. And I know that at some point18Jack Fahy became very involved in that case, and19actually spent quite a bit of time down in Gloucester20County actively litigating it. And I don’t remember21exactly when that -- his active litigation involvement22started, and I assume that before that he was involved23in discovery issues.24


Whether you know I can’t tell you whether I1had heard of the case before I got this memo or not,2because I just don’t remember, it’s possible I did.3

MR. CHERTOFF: All right, let me -- let me4direct your attention to the next to the last page of5the memo, before you get to the outline, it’s OAG262. 6And particularly the sentences at the bottom that read,7“the State Police must recognize however, that some8troopers do have very high percentages of arrests of9minorities. This is not to say that any particular10trooper has engaged in racial profiling, but it could11result in Court inquiries into the actions of the12officers, officer and some delete to a finding of13racial profiling by that trooper.14

Obviously this can have a devastating effect15on the credibility of the officer and it might lead to16civil liability.”17

And then it goes on to say “Perhaps” -- at18the end of the last sentence in the next page, “Perhaps19the time has come to include the race of a driver --20issue the summons, on the ticket so the State Police21can carefully analyze this information. With regard to22the issue of racial profiling have better statistical23data to affirmatively offer in defending against24


allegations of racial profiling.”1Do you remember at this point in time2

discussing with anybody the issue of whether it would3be appropriate to put together a better data base, of4stop statistics for troopers as a means of helping the5state in defending itself against legal challenges6whether they be civil or criminal?7

THE WITNESS: No I don’t.8MR. CHERTOFF: What about the issue of9

certain officers of having very high percentages of10minorities being stopped, was that an issue at this11point in time and do you remember discussing it with12anybody?13

THE WITNESS: Well. I don’t have any14particular recollection of discussing that with anyone. 15I know that he gave me this memo because I was giving16that talk to the troop commanders and I don’t remember17in detail what I said, but I may have raised that issue18or I may not have.19

MR. CHERTOFF: I --20THE WITNESS: I know I did discuss it with21

them, the issue of racial profiling, you know but the22sort of the legal issue why it’s -- why it’s a problem23and that they needed to make sure that it wasn’t24


happening on an individual basis by troopers.1MR. CHERTOFF: Okay, let me show you what I’m2

going to mark was W-2, for identification.3And -- and ask you to -- it’s a memo from you4

to Fred De Vesa Acting Attorney General dated August530, 1993. And it has some writing on the bottom, do6you recognize the memo?7

THE WITNESS: Yes, I do.8MR. CHERTOFF: And the writing on the bottom9

is from Fred De Vesa?10THE WITNESS: Yes it is.11MR. CHERTOFF: Okay. You -- I take it you12

wrote this memo?13THE WITNESS: I did.14MR. CHERTOFF: And on this memo talks about15

your prior meeting with the State Police about racial16profiling, correct?17

THE WITNESS: Right. Just -- I don’t mean to18interrupt you, I notice this is dated August 30th, and19by then I was using the title Executive Assistant20Attorney General. 21

MR. CHERTOFF: Now, this -- also makes22reference to a case and says, “The issue in the Florida23case concerns what action is appropriate after the stop24


is made. Not what profiles can be used in justifying1the initial stop.”2

What do you recall about this issue, and3there was a distinction between the criteria for a4stop, and the criteria for what can happen after a stop5as it was -- your understanding at the time?6

THE WITNESS: My recollection is that at the7meeting, while I was explaining the -- the problem of8profiling -- racial profiling being unconstitutional9somebody must have said something like well, I heard10that there is a case in Florida, that says it’s all11right.12

And I’m sure I said that I didn’t know of any13such case, and it’s certainly not all right in New14Jersey, and it’s not all right for it to be done by the15State Police. And I think I asked DAG Paul Giotti to16see if she could find any case, and I read the case,17and I concluded that it didn’t say that racial18profiling was acceptable.19

MR. CHERTOFF: Now did you understand there20was a distinction between the issue of profiling as it21relates to stops and profiling as it relates to22decisions made after someone is stopped?23

THE WITNESS: I’m not sure I understand --24


MR. CHERTOFF: Well you say here, the issue1in the Florida case concerns what action is appropriate2after the stop is made, not what profiles can be used3to justify the initial stop. My question is, at this4point in time did you understand that there were at5least two distinct issues, one is, the criteria you6used to stop someone and secondly the criteria you used7to make certain decisions after you’ve stopped someone,8for example obtaining a consent to search.9

THE WITNESS: I don’t -- I don’t think I was10attempting to make that distinction in this memo. I11think what I was saying is that the case -- this is12what the case said, and it didn’t support the -- any13notion that there could be racial profiling.14

MR. CHERTOFF: At this point, what did you15understand racial profiling to be?16

THE WITNESS: Racial profiling would be the17practice of police officer stopping someone because18they’re a minority.19

MR. CHERTOFF: Did you understand it to be a20situation where the sole or predominant reason for the21stop was -- was race, or a situation in which even one22reason, albeit a subsidiary reason was raised?23

THE WITNESS: I don’t know that I was making24


that final distinction.1MR. CHERTOFF: Let me put it a different way. 2

At this point in time in 1993 was it your understanding3that race could be used as one of a number of factors4in making a stop?5

As long as it wasn’t the sole or6predominating factor?7

THE WITNESS: Was -- it’s always been my view8and my understanding that race can’t be a factor.9

Unless you’re -- you know if you’re talking10about -- sort of random stops.11

MR. CHERTOFF: Yes.12THE WITNESS: If a police officer gets a13

radio call that two -- two blacks in a blue sedan just14robbed a bank, and two black people in a blue sedan15drive past and two white people in a blue sedan drive16past, obviously they could stop the -- the two17minorities.18

MR. CHERTOFF: right. That’s case specific.19THE WITNESS: That’s case specific.20MR. CHERTOFF: For that -- right, but other21

than case specific?22THE WITNESS: It’s always been my view that23

you -- that you can’t use it as a factor, I can’t24


honestly tell you whether the case -- makes that -- you1know is that specific, but that was my view.2

MR. CHERTOFF: At this point in time do you3remember anybody ever expressing a contrary view or4there be a disagreement about what in fact constitutes5racial profiling?6

THE WITNESS: No, I can’t say that I do.7MR. CHERTOFF: Now, the next paragraph here8

says, that “It might be useful to give further thought9given to the issue of profiling, perhaps even leading10up to the promulgation of some guidelines.”11

And then there’s a response here, “Alex State12Police SOP on road stops, is pretty good, if it -- if13it ain’t broke don’t fix it. Fred De Vesa.”14

Did you ever have any conversation with Mr.15DeVesa about this issue after this memo was written?16

THE WITNESS: I don’t remember one. I’m not17-- I’m not saying that there wasn’t one, I just don’t18remember.19

MR. CHERTOFF: Did you ever --20THE WITNESS: Usually sort of as a matter of21

practice, one of the ways that we communicated a lot22with the Attorney General was to send memos in, and the23memos would come out. Sometimes they would come out24


like this, with an answer, sometimes they would come1out with see me, which meant that there -- that the2Attorney General wanted to have a discussion.3

And this would really apply almost across the4board.5

MS. GLADING: Do you recognize the6handwriting in that note?7

THE WITNESS: Yes.8MS. GLADING: Whose is it?9THE WITNESS: It’s Fred De Vesa’s.10MR. CHERTOFF: Did you have an understanding11

of what Fred De Vesa meant by the phrase, if it -- well12in this context if it -- assertion if it ain’t broke,13don’t fix it?14

THE WITNESS: I assumed that he meant that he15didn’t see a need for any additional guidelines.16

MR. CHERTOFF: What was the reason you17thought there was a use -- perhaps usefulness in18promulgating guidelines?19

THE WITNESS: I think it was because some of20the people that I was talking to were still you know I21mean they brought up the issue of -- of well there’s a22case in Florida, that says it’s all right.23

And I went out of my way, as I recall to tell24


them that -- you know that -- that’s -- it’s not all1right in New Jersey.2

And I don’t think it’s all right in Florida3either. And I guess I just thought that there -- would4-- you know what I said here. I don’t -- I don’t5really remember much more about this memo than what6I’ve told you and what it says in it.7

MR. CHERTOFF: At this point you -- you’re8familiar with the Soto litigation from -- existence of9the Soto litigation from the previous memo you had10gotten from Jack Fahy, which is F-3?11

THE WITNESS: Well I would have had to have12been, because it’s mentioned.13

MR. CHERTOFF: Did that cause you -- your14familiarity with the fact that there were litigations15over this by the Public Defender caused you to think16that there was a reason to address the issue going17forward?18

THE WITNESS: I don’t -- I don’t recall that19being part of my thought process but I can’t say that20it wasn’t.21

MR. CHERTOFF: Now when Attorney General22Poritz came in, were you involved in transition23matters?24


THE WITNESS: I was certainly involved in1transition matters, for the areas of my -- of2responsibility.3

MR. CHERTOFF: And as part of the transition4did you have any involvement either in preparing or5reviewing any memos prepared for her -- any oral6communications to Attorney General Poritz concerning7the profiling cases or the profiling issues when she8first came into office?9

THE WITNESS: I don’t recall. I mean --10usually -- I’ve been in several transitions and usually11there is a transition book that’s put together and I12think there have been times when I’ve been asked to13look at the whole thing, so I might have seen it, and14there are other times when I’m not. What I would have15been particularly involved in would be the legal16enforcement issues, the 911 program, the discrimination17appeals, the things that I was working on. So I can’t18-- I can’t tell you that at that transition, I didn’t19see material on the issue of profiling, I just don’t20remember.21

MR. CHERTOFF: All right, let me move you now22then to later in 1994, now at this point in time you’re23still Executive Assisant?24


THE WITNESS: Correct.1MR. CHERTOFF: Attorney General. Did -- did2

Attorney General Poritz have regular staff meetings3with -- at which you attended concerning ongoing issues4with the department?5

THE WITNESS: No. Not Attorney General6Verniero as a general proposition had almost a daily7staff meeting. General Poritz did not do that.8

I can’t say that she didn’t have a staff9meeting from time to time, but it wasn’t on a -- on the10regular basis that General Verniero did.11

MR. CHERTOFF: All right, I want to show you12what we’re going to mark as W-3 for identification.13

And ask you do you recognize this -- it’s a14memo dated September 21, 1994, from you to Debra15Poritz, do you recognize your initials?16

THE WITNESS: Yes.17MR. CHERTOFF: Did you write the memo?18THE WITNESS: I assume so.19MR. CHERTOFF: And it relates to a meeting20

with the New Jersey Advisory Committee of the US21Commission on Civil Rights. Now what was that?22

THE WITNESS: As I -- as I understand it, the23United States Commission on Civil Rights has an24


Advisory Committee in each state, and that Advisory1Committee sometimes I think calls hearings.2

MR. CHERTOFF: Now do you remember this3particular issue, as it arose in 1994, this perspective4meeting with the members of the Advisory Committee?5

THE WITNESS: No.6MR. CHERTOFF: Do you remember there being an7

issue raised by the Advisory Committee concerning8monitoring the hearings that took place in June of91992?10

THE WITNESS: Monitoring?11MR. CHERTOFF: Racial -- just says12

monitoring.13THE WITNESS: Well I --14MR. CHERTOFF: See it in the third paragraph?15THE WITNESS: I can read the memo if you16

want, but I have to tell you I don’t really remember17this memo.18

MR. CHERTOFF: Let me -- just take a look at19the handwriting, do you recognize the handwriting?20

THE WITNESS: Not really no, I don’t think21it’s mine.22

MR. CHERTOFF: Do you recognize whose it is?23THE WITNESS: No.24


MR. CHERTOFF: Do you know why he prepared1the memo?2

THE WITNESS: Well one of my things that I3would do is -- as a -- you know staff member, would be4if there is a meeting for the Attorney General that5either was in my area or for some reason somebody asked6me to do a briefing memo, I would do a briefing memo.7

MR. CHERTOFF: If you go behind the first8three pages there’s a draft of the memo, and there’s9some writing on the right hand side, is that writing on10the right hand side your writing?11

THE WITNESS: Where it says, “to Wayne12Fisher?”13

MR. CHERTOFF: Yes.14THE WITNESS: Yes that is.15MR. CHERTOFF: And who is Wayne Fisher?16THE WITNESS: Wayne Fisher -- Wayne Fisher17

works or worked at the Division of Criminal Justice. 18And I don’t think he’s an attorney. I think he’s a --19Ph.D. But I’m not -- I’m pretty sure that he’s a Ph.D.20because people sometimes called him Doctor Fisher. But21I don’t think he was an attorney.22

MR. CHERTOFF: The rest of the writing on23this document if you take a look, see if you recognize24


that writing?1THE WITNESS: No.2MR. CHERTOFF: Could you remember anything3

about the circumstances of this memo or the issue that4-- issues that are raised in the memo?5

THE WITNESS: You want me to read the memo?6MR. CHERTOFF: Well, if --7THE WITNESS: I mean I -- I don’t --8MR. CHERTOFF: -- if you need to remember, I9

mean -- if it’ll help you remember anything sure take a10look at it.11

THE WITNESS: All right.12(Pause)13

THE WITNESS: As I recall, based upon reading14the memo the Advisory Committee was having some15hearings on I guess I would characterize it the16interaction of law enforcement and the minority17community. And it says here that -- that former18General Del Tufo testified at one of the hearings. And19I guess in July they issued a report and then they20wanted to come and meet with the Attorney General about21the report. And I was asked to do a briefing memo.22

MR. CHERTOFF: As part of doing that memo,23did you focus on the issue of trooper enforcement on24


the highways? And the fact that there had been1litigation about that as a problem.2

THE WITNESS: I don’t believe so, I mean3unless I didn’t see it referred to in here, and I don’t4recall it.5

MR. CHERTOFF: Let me --by the way, direct6you now to what we’re going to call W-4 now. Which is7a memo through you, to Fred De Vesa as first assistant8from James Harris. Regarding the settlement of a9Warren County case involving allegations of racial10profiling. And particularly, let me first direct your11attention to the handwriting, and -- if you could12identify the handwriting?13

THE WITNESS: All right, the handwriting, the14smaller handwriting on the right is mine. And the15larger handwriting on the left is Fred De Vesa’s.16

MR. CHERTOFF: What do you recollect about17this Warren County litigation?18

THE WITNESS: Without reading the memo I19don’t recollect anything.20

MR. CHERTOFF: Okay, well take a look what21you -- at it to refresh your memory?22

(Pause)23MR. CHERTOFF: Does this help you remember24


anything about this litigation?1THE WITNESS: Not really.2MR. CHERTOFF: Just so I can -- your3

handwriting, if you could just read us what you wrote4to Fred De Vesa here?5

THE WITNESS: Okay, “according to Gerry6Fisher, State Police settlements require A.G. approval,7perhaps we need to clarify this. In any event, Colonel8Dentino has approved this, it is premised on a 50/509split and may fall through because the county is10backing away from its initial promise. It is also11conditioned -- I guess that’s it is also conditioned on12the plaintiff separately dismissing their profile stop13claims, and settling only as to the fourth amendment14claim.”15

MR. CHERTOFF: Why was it significant to have16the plaintiff’s dismissed profile stop claims and only17settle on fourth amendment claims?18

THE WITNESS: I don’t have any current19recollection of that issue.20

MR. CHERTOFF: Now the distinction as I21understand it, and correct me if I’m wrong is that22fourth amendment claims were related to whether there23was probable cause or reasonable -- particular24


suspicion for a stop under the fourth amendment, that1would be a legally separate issue, from the issue about2whether there was racial motivation in selecting who3you’re going to enforce the law against, correct?4

THE WITNESS: Right.5MR. CHERTOFF: And so -- so the condition6

here was that there would be a settlement as to a7fourth amendment violation but not as to a selective8enforcement violation, correct?9

THE WITNESS: Yes, although I don’t know that10I know enough about criminal law to -- to be able to11say that a racial profiling claim couldn’t also be a12fourth amendment claim.13

MR. CHERTOFF: But as -- as it’s written --14THE WITNESS: But as it’s written, it seems15

to draw a distinction between the two, yes.16MR. CHERTOFF: Now let me show you --17MS. GLADING: Judge Waugh, if you could look18

at the second to last paragraph of that memo, I don’t19know if you got to the second page of it.20

THE WITNESS: I did.21MS. GLADING: You did, the facts of the case? 22

Regarding the Cleveland police officer?23THE WITNESS: Yes, I see it.24


MS. GLADING: I wonder if those facts refresh1your recollection at all about this case?2

THE WITNESS: No.3MS. GLADING: Thank you.4MR. CHERTOFF: And now let me show you F-45

for identification, and take a look at that and see6again if you recognize it as a memo that you prepared7for Becky Taylor?8

THE WITNESS: Yes.9MR. CHERTOFF: Becky Taylor was the Director10

of Communications?11THE WITNESS: Correct. Sorry.12MR. CHERTOFF: And this was dated November13

21, 1994?14THE WITNESS: Yes, it is.15MR. CHERTOFF: Now, that writing that was “to16

DTP you should be aware of this,” is that your writing?17THE WITNESS: It is.18MR. CHERTOFF: And DTP is Debra Portiz?19THE WITNESS: It is.20MR. CHERTOFF: Tell me about -- well let me21

withdraw the question, what do you recall about this22memorandum and the attachment?23

THE WITNESS: I recall that Jack Fahy came to24


me with the attachment. And said that the attachment1was going to be released in discovery in some action,2and it could have been Soto I just don’t remember, and3that he felt that it was definitely problematic, and4that we ought to -- the -- what I’ll call the eighth5floor which is you know the Attorney General’s staff,6should be aware of it.7

And so this is one of a series of memos that8I wrote, and a few -- there are others, and --9

MR. CHERTOFF: Let me --10THE WITNESS: If you look at them, you’ll see11

that I -- see -- at some point I started to -- doing my12own typing, and you’ll notice that this doesn’t have13any secretarial initials rather, where some of the14prior ones do. So I typed an initial one to somebody15and then I -- I sort of cut and paste at least one or16two others.17

MR. CHERTOFF: All right, well let me show18you -- to help you out, what we’ll mark as W-5. Which19also has F-5 attached to it, and see if this is another20memo you wrote about the same issue? This went to the21State Police.22

THE WITNESS: Yes.23MR. CHERTOFF: Okay.24


THE WITNESS: If you look at the text, I1think you’ll find that -- that to some extent they’re2verbatim, the same, and that would be because I did3some cutting and pasting.4

MR. CHERTOFF: And what did you understand5was the problem with the materials that -- training6materials that were about to be released in discovery?7

THE WITNESS: They had a certain amount of8stereo typing in them, one of the things -- they made a9lot of generalizations about various ethnic groups, and10including I think Episcopalians do either drink a lot,11or don’t drink a lot. Which I happen to be12Episcopalian, so you know I noticed that, and they --13and they refer to homosexuals as a deviant sub-culture,14when the New Jersey law against discrimination15particularly protects them, and I thought they were a16problem, you know they were -- well -- I wasn’t -- I17didn’t know where -- who exactly put them together, and18I wasn’t sure what if any sociologist or sociological19information backed them up.20

But I thought that they shouldn’t -- if they21were still being used, they shouldn’t be.22

MR. CHERTOFF: And did you follow up on that?23THE WITNESS: Yes. Now I don’t have an24


independent recollection but I sent it to Captain1Mattos on November 22nd, and then on the January 18th,2which is W-5, I sent him a follow up and I would assume3that he and I -- that he called me and we discussed it.4

MR. CHERTOFF: All right. I’m sorry.5THE WITNESS: And I think he told me that6

they weren’t using them any more, but I -- I just don’t7remember that discussion.8

MR. CHERTOFF: As a result of this, did you -9- other than talk to Captain Mattos, did you have10discussion with the Attorney General Poritz about this,11or anybody else about whether this kind of material12would be a problem with respect to the ongoing13litigation about profiling?14

THE WITNESS: I don’t recall any discussion. 15I can’t say I didn’t. I just don’t recall.16

MR. CHERTOFF: Now, let me show you W-6.17MS. GLADING: Did you -- excuse me -- did you18

-- have any discussions with Becky Taylor about the19substance of these -- the memos and the materials?20

THE WITNESS: I don’t recall any, but I -- I21would assume that I would, because her office and my22office were within 10 feet of each other and so I ran23into her a lot.24


MS. GLADING: Mr. Chertoff, I wonder if1before we move into ‘95, I can cut a one question on2the W-3, that --3

MR. CHERTOFF: Go ahead.4MS. GLADING: I didn’t ask quickly enough.5THE WITNESS: W-3.6MS. GLADING: W-3, the fourth page of it.7MR. MILLER: We don’t have W-3 though.8THE WITNESS: I think I gave it back.9MR. CHERTOFF: I gave it back.10MS. GLADING: Sorry. On the --11THE WITNESS: Yeah.12MS. GLADING: -- fourth page, OAG6692, and --13

I know you’ve indicated that you didn’t recognize the14handwriting on this, but I wonder if you recollect any15discussions about the -- the comments at the bottom16next to your recommendations, no, no, no politically17correct, we get crucified?18

THE WITNESS: Which --I’m sorry, what’s your19question?20

MS. GLADING: Do you recall any discussions21around the issue of -- any kind of citizen oversight?22

THE WITNESS: No.23MS. GLADING: Thank you.24


THE WITNESS: I don’t -- have any1recollection of having seen this document with the2comments. I may have, but I -- I don’t recollect.3

MR. CHERTOFF: All right, I put before you W-46, all right, it’s a memo dated March 30, 1995, from5you to Debra Poritz, again are those your initials?6

THE WITNESS: Yes.7MR. CHERTOFF: And it encloses a couple of8

newspaper articles and talks about anticipation of our9meeting on Friday I -- attach copies of some news10articles. And the Appellate Division’s decision on the11issue. Which presumably is the Kennedy decision,12that’s the decision out of Warren County, that talked13about the standards for -- enforcement cases? Do you14remember the --15

THE WITNESS: Vaguely.16MR. CHERTOFF: All right. And it talks about17

articles with troopers testifying about -- in the South18Jersey case, in the Gloucester County case about racial19profiling, do you remember writing this memo?20

THE WITNESS: I did write the letter, I mean21I did write the memo, I can’t say that I remember22writing it.23

MR. CHERTOFF: Was there a meeting that24


occurred at around this time, concerning the issue of1profiling, the fact that there was now evidence coming2out in the record, in -- in the case of South Jersey3that was not just statistical evidence of profiling,4but actual evidence by people who claimed to have5personal first-hand knowledge of profiling?6

THE WITNESS: I don’t have any current7recollection of such a meeting, but I have to assume8that -- that one was scheduled certainly, because it9says in anticipation of our meeting on Friday. And I10have no reason to think it didn’t take place. But I11don’t remember it.12

MR. CHERTOFF: As of this point were you13involved in the issue of discussions of profiling at14the Attorney General’s office?15

THE WITNESS: I -- I guess I would answer16that question yes, in that Jack Fahy who used to report17to me directly when I was the legal affairs director,18sort of used me as a sounding board, and sometimes19would use me as a -- you know if he wanted to -- to20bring something to the eighth floor he would bring it21to me. Such as the -- the training material that we22just talked about.23

MR. CHERTOFF: Now, as of this point, the --24


Jack Fahy was actually involved in litigating the case1in Gloucester County, correct?2

THE WITNESS: I know that he was actively3involved in litigating, I don’t -- I don’t know when,4so I don’t -- I can’t tell you for sure whether it was5at this point, I assume it is, because it sounds like6the trial was going on.7

MR. CHERTOFF: Now, did he talk to you about8what was going on in the case?9

THE WITNESS: He would come and -- I mean10sometimes he would vent because he was tired of driving11down to Gloucester County every day, sometimes he would12tell me what was -- was going on, sometimes he might13have a -- you know a -- have a question of you know14trial tactics and -- or something like that.15

MR. CHERTOFF: Did you report on the gist of16what he told you up to your superior, at this point?17

THE WITNESS: If he was telling me something18that I felt was needed to be, I would.19

MR. CHERTOFF: And at this point you would20report directly to the Attorney General?21

THE WITNESS: Yes.22MR. CHERTOFF: Okay. As of 1995 at a point23

in time in which we have troopers testifying, there’s24


an active litigation in front of the Judge in1Gloucester County, you’ve previously learned about2these training materials which are not good evidence,3from the standpoint of the case, was the issue of4profiling in effect of that in the State Police an5important issue, was to me being focused on by the6Office of the Attorney General?7

THE WITNESS: I would say it was an issue8that everyone was aware of, and had some concern about.9

MR. CHERTOFF: Did anyone at this point in10time, again I’m focusing you on 1995?11

MR. MILLER: Mr. Chertoff, I don’t know if he12was finished with his answer.13

MR. CHERTOFF: Oh, I’m sorry.14THE WITNESS: I don’t know whether I was15

either.16MR. CHERTOFF: Okay. Finish up.17THE WITNESS: I don’t know whether I was or18

not, so I guess I was.19MR. CHERTOFF: Well, allow me to maybe20

stimulate your -- with the next question, at this point21in time, in spring of 1995 while the litigation is22underway, was there any discussion in the Office of the23Attorney General, about independently going out and24


looking at statistics and examining the issue to find1out whether or not there really was a racial profile2under selective enforcement?3

THE WITNESS: I don’t remember any such4discussion.5

MR. CHERTOFF: Did it occur to you that6wholly in part from the litigation positions there was7value in actually finding out what the facts were with8respect to racial profiling?9

THE WITNESS: I don’t remember having that10thought process.11

MR. CHERTOFF: Do you know when -- did there12come a point in time after Colonel Dentino left, and13Colonel Williams came in that there was a change in --14another change in the philosophy about how to enforce15drug investigations, or how to execute drug16investigations, relating to the Turnpike?17

THE WITNESS: My sense is that there was, but18I don’t remember hearing it discussed.19

MR. CHERTOFF: Do you know whether there was20a policy decision made by the Attorney General, or by21the Superintendent to go back to the method of trying22to interdict drugs by stopping cars?23

THE WITNESS: I don’t know.24


MR. CHERTOFF: Okay. There came a point in1time that you learned that there were -- had been a2decision by Judge Francis, in the Soto case?3

THE WITNESS: Correct.4MR. CHERTOFF: And that would be in early5

March of 1996, correct?6THE WITNESS: Correct.7MR. CHERTOFF: And I’m going to show you what8

is going to be marked as W-7 for identification.9When did you learn about the -- the decision10

by Judge Francis in Soto?11THE WITNESS: I would have to assume that I12

learned about it probably the day that it was received13by Jack Fahy.14

MR. CHERTOFF: What was your reaction?15THE WITNESS: I read the decision, and I16

thought that there were some errors in it.17MR. CHERTOFF: Did you view the decision as -18

- as being a serious issue for the Attorney General’s19Office?20

THE WITNESS: Yes.21MR. CHERTOFF: Did you have discussions with22

anybody else in the Attorney General’s Office, about23the decision after you read it?24


THE WITNESS: I’m sure I did.1MR. CHERTOFF: Were you involved in the2

process of deciding whether to appeal?3THE WITNESS: Yes.4MR. CHERTOFF: Let me focus on W-7, which I5

have before you. This comes from Nancy Stiles, who is6Nancy Stiles.7

THE WITNESS: Nancy Stiles was a DAG who --8it says Legal Affairs, but I don’t think that she was9ever in Legal Affairs. She worked with me on handling10the discrimination complaints, and I think she was also11-- she may have also been working with Jane Grall to12some extent on doing some legislative issues.13

I -- I don’t recall that she was ever in14Legal Affairs, but I suppose she could have been.15

MR. CHERTOFF: Okay, now it talks about here,16interesting comments on Pages 13 and 14, re: duty to17investigate allegations of discriminatory behavior. 18Now, do you suppose this might change the nature of our19duties and responsibilities, what did you understand20that reference to be?21

THE WITNESS: I think that she was wondering22whether I think when she said our, I think she meant23the Val Holman who was the Department EEOAA Officer,24


and the people that worked with her, and Nancy provided1legal assistance, would be appropriate people to do2that sort of monitoring.3

MR. CHERTOFF: Now, with reference to duty to4investigate, am I correct that in employment law, there5is a doctrine that basically says a supervisor or6manager can be held liable for acts of discrimination7by subordinates, if there was a failure to adequately8investigate the supervisor?9

THE WITNESS: I think I would accept that as10a general proposition.11

MR. CHERTOFF: And did you understand this12reference by Ms. Stiles to be a suggestion that perhaps13under the opinion of Judge Francis there might be an14affirmative obligation by the managers or the15supervisors at the Department of Law and Public Safety16to insure that there wasn’t discriminatory behavior as17it relates to profiling?18

THE WITNESS: I’m sorry could you say that19again?20

MR. CHERTOFF: Did you understand this21reference --22

THE WITNESS: Right.23MR. CHERTOFF: -- to be a suggestion that as24


a result of Judge Francis’s decision there might be an1affirmative obligation on the part of managers at the2Department of Law and Public Safety to investigate and3assure themselves as a matter of independent4responsibility, that there was no discrimination or5profiling going on in enforcement?6

THE WITNESS: I think that’s what she was7suggesting.8

MR. CHERTOFF: Did you ever raise that issue9with the Attorney General or other people in the Office10of the Attorney General?11

THE WITNESS: I don’t recall having done12that. I mean my understanding at the time was that13those -- those allegations were investigated by14Internal Affairs at State Police.15

MR. CHERTOFF: And what was your understanding16about how those got investigated?17

THE WITNESS: How?18MR. CHERTOFF: Yeah?19THE WITNESS: I guess my general20

understanding of Internal Affairs is that if a21complaint came in it would be assigned to an22investigator who would go out and in compliance with23various provisions of Union contracts, interview the24


people involved and write a report, and some times they1recommended discipline and sometimes they didn’t.2

MR. CHERTOFF: Do you know whether that was3actually being done up to this point in time, as it4relates to profiling?5

THE WITNESS: Well I can’t say that I recall6a specific instance of such an -- of knowing of a7particular instance of such an investigation related to8profiling, but it was my understanding that State9Police investigated all complaints to -- to some10extent, I mean at least to the sense -- in the sense of11they would look at it, and decide whether they thought12it needed to be investigated.13

Because one of -- one of the things I told14you I did as -- when I worked for Peter Perretti, was15to -- to appeals of minor discipline, and most of that16minor discipline was the result of -- of complaints --17most may be overstating it.18

A significant amount of the minor discipline19as based on complaints from people who interacted with20the State Police, now I don’t remember one that21specifically had to do with profiling. There were -- I22remember sort of some that were attitude and demeanor23that type things. You know the trooper spoke roughly24


to me, or something like that.1So I think that my understanding at the time2

was that this function was being done, at Internal3Affairs.4

MR. CHERTOFF: Apart from responding to5complaints, at this point in time, were you -- did you6consider whether there should be any proactive efforts7to monitor trooper behavior through statistical8analysis or review of --of documents to determine9whether apart from complaints there was a problem with10respect to profiling or selective enforcement?11

THE WITNESS: I don’t recall having that12thought process.13

MR. CHERTOFF: I’m going to show you a -- I’m14sorry F -- I’m going to show you F-8 for15identification, this is a memo prepared from Jack Fahy16to you on March 12th, 1996, shortly after the Soto17case?18

THE WITNESS: Right.19MR. CHERTOFF: Do you remember this memo?20THE WITNESS: I do.21MR. CHERTOFF: Now, on the last -- next to22

the last page -- the last paragraph, it says the “Court23ultimately concluded the utter failure to State Police24


hierarchy” --1THE WITNESS: I’m sorry the next to last?2MR. CHERTOFF: Next to last page.3THE WITNESS: Okay, I see it.4MR. CHERTOFF: Last paragraph.5THE WITNESS: Right.6MR. CHERTOFF: “The Court ultimately7

concluded that the utter failure of the State Police8hierarchy to monitor and control the crackdown program9like DITU, or investigate many claims of institutional10discrimination manifests its indifference if not11acceptance.” And it goes on to say “this is not a12desirable argument -- I’m sorry, while the trial Judge13might have technically misapplied the law and painted14the strongest picture that he factually could for the15defense, Appellate Courts will probably disregard these16deficiencies to eradicate the evil of racially17selective reports from the traffic laws, which the18Court found to exist.”19

Finally dicta in the opinion, places a20responsibility on the State Police to monitor the21racial composition of stops made by troopers.22

This issue must be addressed or it will come23back to haunt the State Police in the future24


litigation.1When you read this, did you have an2

understanding that there was a problem as of this point3in time? With the supervisory and managerial response4to profiling in terms of monitoring, to make sure it5wasn’t going on?6

THE WITNESS: I was -- I think from having7read Judge Francis’s opinion, that -- that’s what he8found.9

MR. CHERTOFF: So what was the discussion at10the Office of the Attorney General in March and April11of 1996, about how to address the issue of whether the12Department was adequately carrying out its duties to13supervise, to make sure that there wasn’t improper14behavior by the State Police in profiling?15

THE WITNESS: I don’t recall any specific16discussion --17

MR. CHERTOFF: Was there discussion about18setting up the program to audit or monitor statistics,19via the State Police to -- to check to see whether20there would be problems on a going forward basis?21

THE WITNESS: Not that I recall. Not that I22recall participating in myself.23

MR. CHERTOFF: Did you hear about such a24


discussion?1THE WITNESS: Not that I recall.2MR. CHERTOFF: Um.3THE WITNESS: The reason I make that point is4

there are -- there were a lot of discussions in the5Office of the Attorney General that I didn’t6participate in.7

MR. CHERTOFF: Now at the same time was there8also an upcoming meeting with the US Civil Rights9Advisory Commission that was also in which they10indicated members of the Advisory Committee that they11wanted to talk about the Gloucester County turnpike12stop case?13

THE WITNESS: I -- I can only assume from14your having asked the question that there was.15

MR. CHERTOFF: Let me --16THE WITNESS: I don’t have any independent17

recollection of it.18MR. CHERTOFF: Let me refresh your memory19

with W-8.20THE WITNESS: All right I did write this21

memo.22MR. CHERTOFF: Wasn’t in fact the meeting23

with the Advisory Committee in which this issue of the24


stop case was discussed?1THE WITNESS: I don’t recall the meeting.2MR. CHERTOFF: Did you typically attend3

meetings at which the Advisory Committee would interact4with the office of the Attorney General?5

THE WITNESS: I think I probably would have.6MR. CHERTOFF: Would you agree with me that7

as of this point March 1996, the issue of profiling as8a practice was a very serious issue for the Department9given not only the Judge’s opinion, but the fact that10now you had the Civil Rights Commission focusing on11this issue?12

THE WITNESS: I would agree with you that it13was an important issue, I think I would say primarily14because of the litigation.15

MR. CHERTOFF: Now, was there discussion16about whether an appeal should be taken?17

THE WITNESS: Yes.18MR. CHERTOFF: What was -- who participated19

in the discussion and what were the -- what was the20content of the discussion?21

THE WITNESS: Let’s see. I think the22Attorney General, the first -- I think Jim Ciancia,23there may be a memo that was distributed to a bunch of24


people in anticipation of the meeting, or -- you there1may not, I don’t know.2

MR. CHERTOFF: Okay, I’m -- it may help out a3little bit if I show you what we’re going to mark as W-49 and 10 for identification.5

THE WITNESS: Certainly Jack Fahy would have6been involved, I was involved. Would have been others.7

MR. CHERTOFF: And what was the content of --8I’ll show you W-9 and W-10 and see whether that helps9you again -- to placing a time and -- personnel?10

THE WITNESS: Ann Paskow -- I’m looking now11at W-10. Ann Paskow was the person who was in charge12of appeals, in the Division of Criminal Justice, and13Mary Jacobson was one of two people in charge of14appeals in the Division of Law.15

And I believe that Attorney General Poritz16wanted to sort of get a multi divisional view on the17issue of appeal.18

Jeff Miller who is seated next to me, was I19believe at the time the Assistant Attorney General in20charge of litigation.21

MR. CHERTOFF: What were -- what was the22action --23

THE WITNESS: I’m sorry, and Jaynee LaVecchia24


was the Director of the Division of Law.1MR. CHERTOFF: What was the actual discussion2

about the merits of appealing as it relates to whether3to take the appeal or not? In view of the underlying4facts?5

THE WITNESS: I think the focus -- I think6what we generally all thought was the error or problem7with Judge Francis’s decision. Was one a shifting of8the burden, away from the defendant to the State. And9two his acceptance of a survey that we felt had no10scientific basis.11

There was never any discussion that we should12appeal on the basis that racial profiling was an13acceptable practice because that was never a position14that was entertained.15

I think the issue was whether given the --16and I think -- I think maybe it was one of those memos17from Jack Fahy that you showed me, talked about the18fact sensitive -- the fact intensive nature of the19decision, one of the issues was whether an appeal would20be viable given the -- the deference that Appellate21Courts at least sometimes give to the findings of facts22of Judges.23

And so the -- that would have been, you know24


one side, is it worth doing.1The other side was that we felt that this was2

an incorrect decision, and that it posed a problem3because on the basis of this decision, a whole group of4cases were being dismissed, on the theory that they5were all the product of improper conduct.6

And it was -- it was our view that it -- it7was inappropriate at least on the record in that case,8to take that action because under the law that’s9discussed in some of the -- the memos and eventually in10the brief that was filed, it should be done on a -- on11a fact sensitive basis for each stop. Under the12applicable law.13

Was there a basis for each stop.14MR. CHERTOFF: Was there any discussion about15

whether the decision to take an appeal would be16effected by an understanding of the underlying facts in17the cases, and -- and the likelihood of prevailing even18if you won on the appeal, and the case was remanded,19for the fact finder?20

THE WITNESS: I don’t recall such a21discussion, I can’t say there was.22

MR. CHERTOFF: Well let me ask you --23THE WITNESS: I’m not sure -- maybe you need24


to explain to me exactly what you mean.1MR. CHERTOFF: Well let me -- let me get it2

in actually -- let me ask you -- in the wake of the3decision did you either assign, or did you become aware4of the fact that Jack Fahy and Ron Susswein of the5Department would be meeting -- would be joining a6Committee of State Police officials, to deal with the7racial profiling issue?8

THE WITNESS: I know that now, because I9think I’ve read some document that said that, and I10would have to assume that -- that I knew it then, but I11can’t tell you that I have a recollection from that12time of knowing that. I know that there were meetings13at which it was made clear by the Attorney General to14the Superintendent that she was concerned about the15issue of profiling, and that she wanted to make sure16that steps were -- were continuing to be taken, to make17sure that there was no such practice going on.18

MR. CHERTOFF: Do you know -- do you know who19assigned Deputy Attorney General Fahy to work on this20issue with the State Police?21

THE WITNESS: You mean post Soto?22MR. CHERTOFF: Post Soto from March -- in and23

around March 1996 or April 1996?24


THE WITNESS: I don’t think I do. I don’t1think it was me, because I don’t think I -- I mean2that’s not the sort of assignment I would have made,3but -- I just don’t know.4

MR. CHERTOFF: Well did he -- in 1990 -- in5February of 1996, did he leave the -- did Jack Fahy6leave Legal Affairs, and move on to the Grand Jury7Bureau at the Division of Criminal Justice?8

THE WITNESS: I know he left Legal Affairs,9and he went to the Grand Jury Bureau in Criminal10Justice, I don’t -- I can’t tell you the date.11

MR. CHERTOFF: After that time, did he12continue to report to you, as it relates to matters13relating to racial profiling?14

THE WITNESS: I don’t know that I would use15the word report. Because I don’t know that I had --16you know in the chain of command sense, probably17continued to talk to me about it.18

MR. CHERTOFF: Did he convey information19through you to the Attorney General, as it relates to20the issue of racial profiling?21

THE WITNESS: I don’t know how to answer that22question. Because I know that there were times that he23did, but I don’t really remember or think I know very24


much about the Committee that you’re talking about so1it’s possible that he was reporting through someone2else, or -- or you know, there was some other liaison.3

But I just don’t remember.4MR. CHERTOFF: Did he continue to report to5

you with respect to the Soto matter? Or report through6you to the Attorney General with respect to the Soto7matter?8

THE WITNESS: Again I’m not sure I’m9comfortable with the word report. I know that there10were times when he would send me copies of briefs or11something to -- to comment on. Maybe I’m just being12too fussy about report, because I’m thinking of the13tables of organization and stuff like that.14

MR. CHERTOFF: How about maybe -- let me --15let me -- did he communicate to or through you to the16Attorney General on the issue of Soto, after he left to17go to the Grand Jury Bureau?18

THE WITNESS: He -- Jack and I you know19worked together for a long period of time, I was the20person he knew best on the eighth floor, I think I was21the person he felt most comfortable talking to, so I22think on a lot of occasions when he had something to23say he would come and give it to me, and as -- as I24


think we’ve seen from some of the documents we’ve1looked at I would -- I would pass it in.2

I can’t say that -- at some point in time3there wasn’t someone else he was talking to.4

MR. CHERTOFF: What about Ron Susswein, did5he report to or through you with respect to his6involvement with racial profiling matters?7

THE WITNESS: No, I had very little contact8with him.9

MR. CHERTOFF: Let me direct your attention10to -- like April of 1996, and I’m going to ask you --11read you a passage from an exhibit which is a memo from12Detective I.T. Gilbert to Colonel Williams. You’re not13on the memo, but let me ask you, I’m going to read this14and ask you when you became aware of this fact.15

“With respect to the Gloucester County16appeal, the detective Attorney Generals Fahy and Simms17have been assigned the appeal.”18

THE WITNESS: Simms.19MR. CHERTOFF: Simms. Were you aware of that20

in April of 1996?21THE WITNESS: I don’t know -- well, I know22

that Jack Fahy was working on the appeal. If you’re23asking me as of a specific date, I mean I think I would24


have always assumed that Jack Fahy would work on the1appeal, because he was the trial lawyer.2

I don’t recall Simms particularly.3MR. CHERTOFF: All right, this is a passage4

from this report of what happened in a meeting, and I5want to read it to you and ask you to what extent you6are familiar with some of the facts here.7

“If an appeal -- if the appeal is successful8the next phase will most likely involve a remand, where9each individual case is heard. Fahy noted that should10this happen, individual troopers may be subjected to11intense scrutiny, and respected training discipline and12a statistical review of their enforcement patterns,13including race. Should such a public review prove14unfavorable the Division could be further damaged and15individual troopers suffer significant harm to their16credibility and standing before the Court.17

As a result it was agreed that a review would18be initiated in 19 Moorestown NJSP cases, to ascertain19which troopers were involved, once identified, an20analysis of their activity will be conducted to21identify any potential negative issues, should they be22called upon to testify.23

If this review uncovers substantial problems,24


it would be recommended that additional thought be1given to proceeding with the appeal.”2

Were you aware that there was going to be a3review of these cases, to see what the underlying facts4were and that depending on that review there might be a5reconsideration of the appeal?6

THE WITNESS: I don’t believe I was.7MR. CHERTOFF: Is that something which --8

ever occurred to you in your participation of the issue9of the appeal? That one should look to see what the10underlying facts were to determine whether the appeal11ought to be continued, because of what might ensue, if12you won the appeal. And the case was remanded?13

THE WITNESS: Not that I recall, I think that14what we were more concerned with was the legal issue.15

MR. CHERTOFF: Were you ever involved in16discussions about the division awards program,17particularly the trooper of the year program?18

THE WITNESS: Well, I know -- I know that19there a trooper of the year, and I probably heard you20know discussions of who was the trooper of the year, so21to that extent yes. If you’re asking me whether I was22involved in discussions about what the qualifications23are, or anything like that I don’t recall being24


involved in those discussions.1MR. CHERTOFF: Okay, still directing your2

attention to April 1996, and with respect to the issue3of a Committee to provide an institutional response to4the Gloucester County ruling, let me show you what has5been marked as F-10.6

It’s a memo to Terry Farley from Jack Fahy,7dated April 19, 1996, and if you turn to page 2, you’ll8see you’re copied on the memo.9

THE WITNESS: Yes.10MR. CHERTOFF: Do you remember this memo?11THE WITNESS: I believe I do.12MR. CHERTOFF: Now it says “under State13

Police a Committee was formed by Colonel Carl Williams14to provide an institutional response to the Gloucester15County ruling, Lieutenant Val Littles chairs the16Committee which also includes representatives from the17Internal Affairs Bureau, training bureau and18affirmative action office, AAG Susswein and I also19attend meetings at the request of State Police and our20input has been encouraged.”21

Does this help you remember that you were in22fact aware that Jack Fahy was attending Committee23meetings with the State Police in response to the24


Gloucester County ruling?1THE WITNESS: I have no reason to believe2

that I didn’t receive this memo. So. Yes.3MR. CHERTOFF: Were you involved in4

discussions concerning Jack Fahy’s participation in5this Committee?6

THE WITNESS: Not that I can recall.7MR. CHERTOFF: Did you become aware in April8

of --9THE WITNESS: I -- I noticed that it was also10

copied to Jim Ciancia so I don’t know whether Jack Fahy11was also talking to him or not.12

MR. CHERTOFF: Did you become aware in April131996 that there were complaints coming out of the14Cranbury troop, I guess Troop D at Cranbury, and at15concerning Moorestown, I’m sorry. Were you aware that16there complaints coming out of the Moorestown office in17April 1996, that some of the troopers there perceived18that racial profiling was being used for -- for motor19vehicle stops?20

THE WITNESS: In April of ‘96?21MR. CHERTOFF: Yeah? And -- yeah, and I’ll22

show you F-16 for identification, if that helps refresh23your memory?24


THE WITNESS: I don’t believe I’ve ever --1was privy to this document. I -- I can’t -- I can’t2say that I -- I was, but you know you’ve shown me3documents today that I just don’t remember although I4wrote them. So, you know I have to tell you that it’s5possible that I knew something that I don’t remember.6

But, I certainly don’t -- would have not7gotten the State Police document like this, that I --8that I know of.9

And -- and I just don’t remember that issue.10MR. CHERTOFF: Putting that one side, whether11

you got the document, do you remember in April of ‘96,12the issue arising that troopers in Moorestown13themselves, minority troopers were expressing concern14that profiling was going on?15

THE WITNESS: I don’t have that present16recollection of that, but I -- I can’t tell you for17certain that somebody didn’t tell me that then.18

MR. CHERTOFF: Would you agree with me that19in light of the fact that there was an ongoing issue20about the Moorestown station and the litigation, that21that would be again a significant fact in terms of22determining whether racial profiling was a serious23problem with the State Police in 1996?24


Did you know that there were complaints by1actual troopers?2

THE WITNESS: I don’t know how to answer that3question because as far as I know, you know I don’t4remember being aware -- aware of it, so it’s -- it’s5sort of a hypothetical question, as far as I’m6concerned.7

MR. CHERTOFF: What about up at -- in8Hunterdon County, the Perryville Station, were you9familiar with a statistical analysis that was done10there, concerning arrests and minority composition of11arrests by troopers?12

THE WITNESS: Not that I recall.13MR. CHERTOFF: Now, again still focusing you14

on this period of time, April May 1996, was there an15effort under way or discussion under way about16disposing of or resolving certain criminal cases, in17the various counties as a way of avoiding litigating18the issue of racial profiling in those counties?19

THE WITNESS: Not that I recall.20MR. CHERTOFF: Let me show you F-11, for21

identification.22It’s a memo dated May 17, 1996 from John Fahy23

to James Ciancia with a copy to you, and in particular24


I want to -- here give you a moment to look at it, and1then I’ll ask you a couple of questions.2

(Pause)3THE WITNESS: All right, I read it.4MR. CHERTOFF: Do you remember this memo?5THE WITNESS: I -- I know I received it,6

because it has my handwriting on the top right.7MR. CHERTOFF: Which is your handwriting?8THE WITNESS: Right here, it says file.9MR. CHERTOFF: Okay. Does --10THE WITNESS: But I don’t see what -- what11

this -- what this document indicates to me because it’s12addressed to Jim Ciancia with a copy to me, is that13Jack Fahy must at some point have been dealing directly14with Jim Ciancia so he -- he was -- he was reporting15something to Jim Ciancia and because of my involvement16in the general issue of profiling and particularly the17Soto appeal he was copying me.18

MR. CHERTOFF: Well does this refresh your19memory that you were aware of the fact that there was20actually dispute about whether a couple of narcotics21cases should be plead out in Hunterdon County, with the22Prosecutor resisting pleading it out, but there being23some desire on the part of the office of the Attorney24


General to get rid of the cases, because there were1potential profiling problems?2

THE WITNESS: Where does it say that? I see3the last paragraph -- the last sentence that says, “the4Hunterdon County Prosecutor’s Office is uncomfortable5with pleading these cases out.”6

MR. CHERTOFF: Okay, is it your -- do you7remember there being discussion about whether these8cases ought to be plead out to avoid racial profiling?9

THE WITNESS: No. I mean he -- he talks here10about providing information to the various county11Prosecutors, on how to -- I guess defend these12applications. Our office is assisting with drafting of13consent orders, regarding the scope of discovery to be14provided.15

MR. CHERTOFF: But the sentence, Hunterdon16County Prosecutor’s Office is uncomfortable with17pleading these cases out to reduce charges at this18time, and the context of this memo, does that refresh19your memory that there was discussion about whether the20cases would have to be plead out, and reduce charges to21avoid the issue of litigating this?22

THE WITNESS: No. I mean -- you’re reading23that into the memo, I’m not sure I would read that into24


the memo, but it certainly -- certainly there must have1been a discussion of pleas, but I don’t see anything in2there that suggests that Jack Fahy or anyone else was3talking about pleas in order to avoid the issue of4racial profiling.5

MR. CHERTOFF: Would you agree with me that6if the problem of racial profiling were such that it7would actually cause Prosecutors to dismiss cases, that8would be a very serious issue for the Office of the9Attorney General?10

THE WITNESS: Well, the reason that we --11that it was decided to appeal the Soto case, was12because we felt that it -- it was a problem if Judge13Francis’s finding -- well not so much his findings, but14his conclusions and -- and his legal chain -- what we15felt was a legal change in the burden of proof, was16adopted throughout the state, that then it would put at17risk what could be very good narcotics cases.18

I don’t know whether that answers your19question.20

MR. CHERTOFF: Well let me -- let me ask you21the question this way, Soto obviously dealt with22historical things that occurred in the past, correct?23

THE WITNESS: Right.24


MR. CHERTOFF: Based on Soto, based on the1other documents we’ve looked at to your knowledge was2there a concern that going forward steps be taken to3avoid creating a basis for racial profiling challenges4in the future, so that this problem wouldn’t infect5future cases?6

THE WITNESS: Well I was aware that there7were efforts being made to make sure that there was no8racial profiling.9

MR. CHERTOFF: What were those efforts as of10this period of time in May 1996?11

THE WITNESS: I believe that after the Soto12appeal came out Colonel Williams sent out a -- what13they call a read and sign, on the issue, and I think14all that stuff that I assumed Jack Fahy and -- and Ron15Susswein and this Committee that you were talking about16were addressing those issues.17

I’m not sure I understand your question.18MR. CHERTOFF: Well did -- were you aware of19

any steps being taken prospectively, to make sure that20there were -- mechanisms put in place to monitor and21correct any profiling that was going -- going to be22going forward in the future, so as to avoid having this23problem continue on, with new cases?24


THE WITNESS: Well I thought that that was1the purpose of the Committee that you were asking me2about before, was to continue the process of drumming3into State Police at all levels, that there should be4no racial profiling.5

MR. CHERTOFF: Do you know what the Committee6was doing, was the -- or was it being reported to the7Attorney General, or was -- the Office of the Attorney8General taking any interest in this Committee, as far9as you know?10

THE WITNESS: Well I can speak for myself,11and I don’t particularly remember being aware of what12they were doing, and the fact that -- at this point13Jack Fahy is writing to Jim Ciancia, suggests to me14that maybe he was, but you know I -- I can’t say for15sure.16

MR. CHERTOFF: Do you know whether as of May171996, someone had already done an analysis of the18arrest statistics, for the troopers involved in the19Gloucester County case at the Moorestown Station, to20see whether in fact there really was a problem, on the21individual trooper level, in terms of racial profiling?22

THE WITNESS: No.23MR. CHERTOFF: Let me direct your attention24


to -- well should we take like maybe a five minute1break now.2

THE WITNESS: That’s fine with me.3MR. CHERTOFF: All right, let’s take a five4

minute break.5(Break)6

THE CLERK: Back on the record.7MR. CHERTOFF: Directing your attention to8

October 1996, did you become aware at -- there had been9a -- at that point in time, that there had been an10audit of the troopers in Moorestown, which was the11barracks which was the subject of the Gloucester County12litigation, or one of them, and that that indicated13that in fact the percentage of minorities stopped was14even higher than that testified to by the expert on15behalf of the plaintiffs in the Gloucester County case?16

THE WITNESS: I don’t recall, is there a17document that I --18

MR. CHERTOFF: Well let me show you what19we’ve premarked as F-17 for identification. See if20that helps you refresh your memory.21

THE WITNESS: No I don’t think I ever saw22this document.23

MR. CHERTOFF: Now.24


A SPEAKER: Would you hold on to it.1THE WITNESS: Yeah, I’m sorry.2MR. CHERTOFF: Now I want to direct your3

attention to November, ‘96, did there come a point in4time you became aware of the fact that the US5Department of Justice was going to commence an6investigation of racial profiling by the State Police?7

THE WITNESS: I got a -- I took a call that8came from somebody from the US Department of Justice,9to the Attorney General’s Office, and I think it was in10November.11

MR. CHERTOFF: And at this point who was the12Attorney General?13

THE WITNESS: Peter Verniero.14MR. CHERTOFF: And when did he come into15

office?16THE WITNESS: I couldn’t tell you a date.17MR. CHERTOFF: Was he in the habit of having18

daily staff meetings?19THE WITNESS: Yes.20MR. CHERTOFF: Who attended those meetings in21

1996?22THE WITNESS: Oh, I can’t tell you who23

attended in 1996, as opposed to another year, but24


typically it would have been me, the First Assistant1Attorney General, Jayne Grall, whoever was the Director2of Communications, Tom O’Reilly who was the Department3Administrator. I think that’s about it, I don’t know.4

MR. CHERTOFF: I’m going to show you what’s5been marked as W-11 for identification. Do you6recognize this?7

THE WITNESS: Yes.8MR. CHERTOFF: Is that your handwriting?9THE WITNESS: It is.10MR. CHERTOFF: What is this?11THE WITNESS: This call -- as I -- if I think12

-- if I remember it correctly, somebody came to me and13it could have been the Attorney General’s secretary,14and said there’s a call that’s just come in from the15Department of Justice in Washington, and either there16was -- there was no one else there to take it, or17somebody wanted me to take it. So I did.18

And it was someone named Rosenbaum, and these19are the notes that I wrote, he spoke as I recall20somewhat quickly, but I -- these are the notes I took21about what he was saying.22

MR. CHERTOFF: And based on these notes,23would you take us through what the conversation with --24


this person from the Department of Justice was on1November 7th?2

THE WITNESS: Yes, he -- told me who he was,3and he says -- he said that they were doing an4investigation of traffic stops, and he cited some5authority for them to do that, and he said that they6wanted to -- here investigating New Jersey State Police7looking into Soto allegations, to see if conduct is8still going on, if they would let us know what they9concluded, they contemplated a minimal disruption of10the Agency, it would be away from the glare of the11media, work with us and State Police, he said they12might decide not to proceed, or to talk pre-litigation13settlement.14

There would be a letter coming from De Val15Patrick, who I believe was the person in charge of the16Civil Rights Division, to Peter Verniero, they would --17it says here, “off right,” I don’t know whether he was18saying they were offering or the letter would have19that, that they wanted to sit down with DAGs and maybe20State Police to talk about procedures, et cetera.21

Then -- then they would be requesting some22information, ways to access as minimally and intrusive23as possible, and would I let State Police know the24


letter was coming.1MR. CHERTOFF: And as a consequence of this2

call, what did you do?3THE WITNESS: I can’t tell you when or how,4

but I at some point talked to the Attorney General and5went through this with him. I can’t tell you whether6it was the same day, or not, because I don’t know7whether he was in or not that day.8

MR. CHERTOFF: I’m going to show you what has9been marked as W --10

MR. WEBER: 12.11MR. CHERTOFF: -- 12. And ask you whether12

this email was your first -- indicates to you that you13had already spoken to Peter around this time, Peter14Verniero around this time, concerning the15investigation?16

THE WITNESS: Yes.17MR. CHERTOFF: What was his response to this?18THE WITNESS: I think he was concerned, he --19

he said pretty quickly on that he would like to go down20and meet with him personally, to find out what it was21about. And he asked me to -- at some point he asked me22to ask them to defer sending the letter confirming that23they are investigating profiling until he’d had an24


opportunity to meet with them.1MR. CHERTOFF: Now up --2THE WITNESS: And I did that.3MR. CHERTOFF: Up to this point in time, had4

you had discussions with Peter Verniero concerning5profiling?6

THE WITNESS: I don’t remember any specific7discussions, and I don’t think that we had started8working on drafts of the Soto brief.9

MR. CHERTOFF: To your knowledge was he aware10of the Soto case, as of November of 1996?11

THE WITNESS: I can’t say that I have12personal knowledge or that I recall that he was aware13of it, I would have to assume he was.14

MR. CHERTOFF: Now, after you had this15conversation with him, where you told him about this16call, who was actually assigned to be responsible for17dealing with this Department of Justice issue, in the18Office of the Attorney General?19

THE WITNESS: Well I -- I was assigned to --20he asked me to contact them and to set up the meeting,21eventually George Rover who was DAG in the -- used to22be in Legal Affairs, who was then in the Division of23Alcoholic Beverage Control was assigned to do this sort24


of day to day stuff.1MR. CHERTOFF: When was that?2THE WITNESS: When?3MR. CHERTOFF: Hmmm.4THE WITNESS: I would say it was probably5

December or January of -- December of ‘96, or January6of ‘97.7

MR. CHERTOFF: Was a meeting set up actually8for December 12th, at the Department of Justice?9

THE WITNESS: I know that there was a meeting10set up, and I know it was at the Department of Justice,11if you’re telling me it was December 12th, I --12

MR. CHERTOFF: I’ll represent to you that13from a calendar which is Exhibit F-15, the Attorney14General indicates a 3 o’clock meeting at the Department15of Justice with Steven Rosenbaum, is that consistent16with your memory?17

THE WITNESS: Yeah, I think there was a memo18that I wrote, to the Attorney General just saying that19there was going to be a meeting, at -- at such and such20a -- location.21

MR. CHERTOFF: Let me -- say in anticipation22of that meeting, did you work with Jack Fahy, to23prepare the Attorney General for that meeting?24


THE WITNESS: I can’t -- I don’t know how to1answer that question, because I don’t really remember2anything specific that was done, but it would have been3unusual to go to a meeting like that, without having4had some preliminary discussions.5

MR. CHERTOFF: Let me show you F-13 for6identification, do you recognize this memo? And for7the record it’s to you from John Fahy, dated December85th, 1996?9

THE WITNESS: I can’t say that I remember the10memo, but it -- you’re right it’s addressed to me, I11don’t see anything that with my handwriting on it, that12you know -- when I would get a memo I would put file13on it, typically, but --14

MR. CHERTOFF: Well did you ask --15THE WITNESS: I would assume that I got it.16MR. CHERTOFF: Did you ask Jack Fahy to17

prepare a memo?18THE WITNESS: I don’t remember.19MR. CHERTOFF: Do you remember reading this20

memo?21THE WITNESS: As I sit here today, I can’t22

say that I do.23MR. CHERTOFF: Did you become aware in this24


period of time, again preparing for the December 12th1meeting, that the issue of profiling had been raised in2other states, particularly in Maryland and Illinois?3

THE WITNESS: I believe I knew that4generally, and I don’t think that the Department of5Justice that Mr. Rosenbaum said specifically what other6states they were looking at, but he said they were7looking at other states.8

MR. CHERTOFF: And if I look -- if I show you9the -- the page three of this memo to you, last10paragraph, does that refresh your memory that Jack Fahy11had pointed out to you, this was ongoing with other12states?13

THE WITNESS: That’s what it says.14MR. CHERTOFF: Now, also let me show you the15

last page of the memo, or actually next to the last16page, the last paragraph, where it talks about the17Internal Affairs Bureau has established an auditing18procedure for dealing with complaints of racially19selective enforcement.20

It was determined that while the State Police21have a professional process for investigating22individual incidents, a void existed when analyzing23claims of pattern of discriminatory enforcement as it24


pertained to an individual trooper or unit of troopers?1MR. MILLER: Mr. Chertoff, the witness and2

you seem to be on two entirely different pages.3THE WITNESS: Oh, I’m sorry you said the last4

page. I thought you said --5MR. CHERTOFF: Correct, right.6THE WITNESS: I thought you said the second7

to last page.8MR. CHERTOFF: Well it starts at the bottom9

of the second to the last page.10THE WITNESS: Okay.11MR. CHERTOFF: And then it continues on to12

the following page, concluding with the audit system13now undertakes to review of the subject troopers14overall enforcement pattern, rather than concentrating15solely on the facts of a particular case.16

Were you aware at this point that there an17audit process, that had been reviewing trooper patterns18of enforcement, at least in the proceeding three month19period?20

THE WITNESS: I have to assume that I21received this memo, and I have to assume that I wrote,22that I read the memo, and therefore I would have to23assume that I knew at the time what was in the memo,24


but I -- I don’t remember the memo.1MR. CHERTOFF: Did you have a meeting with2

Attorney General Verneiro on December 9th?3THE WITNESS: Is -- I have to -- you know I4

don’t remember -- I met with the Attorney General --5MR. CHERTOFF: Yeah, all right I’m going to6

take back --7THE WITNESS: -- you know days, so.8MR. CHERTOFF: I’ll withdraw the question,9

that was a silly -- poorly phrased question. Let me10show you F-14 and ask you did you have a meeting on11December 9th, concerning this Department of Justice12racial profiling investigation at four p.m.?13

THE WITNESS: I believe -- I know we had a --14a meeting and I -- I believe it was before we went to -15- to Washington, and I assume that this is that16meeting.17

MR. CHERTOFF: You attended the meeting?18THE WITNESS: I believe I did.19MR. CHERTOFF: Is your handwriting on the20

first page, is this your handwriting on the first page21of the memo?22

THE WITNESS: I don’t believe so.23MR. CHERTOFF: And --24


THE WITNESS: No it’s not because I -- as a1general proposition I print. And this is cursive, this2-- that’s not my writing.3

MR. CHERTOFF: Let me show you -- you see it4says here attached is back on the copies of the5decision in the Gloucester County profiling matter and6related memos. Now what’s actually attached here is7just the Gloucester County opinion. But I would -- I8would ask you if you recall whether the December 5th9memo F-13 to you from Jack Fahy on profiling was also10included as part of the background?11

As the -- as the related matters?12THE WITNESS: I don’t -- I didn’t prepare13

this memo. And I’m not sure that I ever saw it. In14fact I don’t know who did prepare it, there must have15been someone that was preparing memos like this for the16Attorney General, in preparation of meetings.17

And I don’t think I ever saw it, so I don’t18know what was attached to it.19

MR. CHERTOFF: Was there discussion of Jack20Fahy’s December 5th memo, on December 9th?21

THE WITNESS: I don’t really remember that22meeting, particularly.23

MR. CHERTOFF: Well.24


THE WITNESS: I mean I know I got the call1from the Justice Department, I know that I had2discussions with the Attorney General, about it, and3then we talked about the meeting and we set up the4meeting with the Justice Department.5

I believe based on all this, that you’ve been6showing me that there was a meeting before we went7down, and I know we went down, and I remember that8meeting somewhat better.9

But I don’t -- you know this is all stuff10that happened four years ago. And my brain has been11fried in the Family Division for the last three years.12

And I just don’t remember a lot of -- of13separate detail.14

MR. CHERTOFF: Was this a matter of concern15to the Attorney General, possibility of actually having16a US Department of Justice lawsuit -- and the State17Police?18

THE WITNESS: I think it was yes. And that’s19why he wanted to go down and talk to them.20

MR. CHERTOFF: And this was at the same time21that there was a potential appeal of an adverse22decision, in Gloucester County, correct?23

THE WITNESS: Correct.24


MR. CHERTOFF: What was said during the1meeting, tell us anything you can remember about what2anybody said at this meeting on December 9th?3

THE WITNESS: I really -- I don’t remember4the meeting.5

I mean I’m -- I’m sure it took place, and I’m6sure I was there. But I really don’t remember the7meeting.8

MR. CHERTOFF: As a consequence to the9meeting, did you become -- were you assigned to become10involved as the person to whom Attorney General11Verniero looked to manage this issue with the12Department of Justice?13

THE WITNESS: Yes.14MR. CHERTOFF: What else were you working on15

at that period of time, besides this matter?16THE WITNESS: Specifically?17MR. CHERTOFF: Yeah?18THE WITNESS: I don’t remember, I mean I19

worked on a lot of issues related to the consumer20affairs, to the Division on Civil Rights, there were21the discrimination appeals that I was working on, I --22I don’t remember specifically what I was working on at23that time.24


This was not my primary assignment. If1that’s what you’re asking me.2

MR. CHERTOFF: Was there anybody else at the3-- that was senior to you, or in between you and the4Attorney General, in terms of dealing with this issue?5

Or did you report to him directly on this?6THE WITNESS: The only person who was senior7

to me, was the First Assistant Janice Mintz. And I8don’t remember her as being particularly --9

MR. CHERTOFF: So it’s fair to say you10reported directly to Peter Verniero on this issue?11

THE WITNESS: Yes.12MR. CHERTOFF: Okay, let me show you W-13 for13

identification, and I assume this is the memo you14referred to previously indicating that you were15confirming you had a meeting on December 12th with the16Department of Justice?17

THE WITNESS: Right.18MR. CHERTOFF: And I take it you went to that19

meeting?20THE WITNESS: I did.21MR. CHERTOFF: Who else attended the meeting? 22

From the Department of Law and Public Safety?23THE WITNESS: I know the Attorney General24


went, I know Jack Fahy went, I know the Attorney1General’s security person went, I -- don’t recall2anyone else going from our office.3

MR. CHERTOFF: What did you talk about on the4way down? Concerning the meeting, I don’t mean idle5chat.6

THE WITNESS: Mr. Chertoff, I don’t even7remember how I got there.8

I don’t remember whether I took the train, or9whether I drove down with the Attorney General.10

MR. CHERTOFF: But before you went into the11meeting, did you talk to the Attorney General about12what you hoped to achieve at the meeting?13

THE WITNESS: Well, my under -- again I don’t14remember specific discussion, but my recollection of15what he wanted to achieve is he wanted to find out, you16know what their interest was, specifically. He wanted17to tell them about the appeal. And he wanted to talk18about you know how we could cooperate with him.19

MR. CHERTOFF: Did he want to avoid an20inquiry?21

THE WITNESS: I -- I don’t think that he felt22that he was going to come away from that meeting with23the Department of Justice saying well forget about it,24


we’re not going to do anything.1MR. CHERTOFF: Between November in ‘96, when2

the call came to you from Department of Justice, and3then a little more than a month later you’re going4down, had the Attorney General ever said to you or5anybody else to your knowledge, in substance, do we6actually have a problem here, let’s try to find out?7

THE WITNESS: I know that I have heard8Attorney General Verniero and other Attorneys General9ask whoever the Division of State Police Superintendent10was, is racial profiling a problem at the State Police. 11And the answer is always been no.12

I know that I do have a specific recollection13of that question being asked, at a subsequent meeting14to the time period we’re talking about, it very well15may have been asked at the -- what was December 9th16meeting? But I don’t have a-- I really don’t remember17that meeting, so I don’t know.18

MR. CHERTOFF: Was there any discussion19before you went into the Department of Justice meeting20on December 12th, about calling this Department of21Justice examination an inquiry rather than an22investigation?23

THE WITNESS: My recollection is, and again I24


don’t remember specifically you know how it -- how it1took place, is that the Attorney General I think did2want to -- you know no one -- no one -- no State3Government wants to be investigated. And I think that4he -- he was interested I guess in having it called5something other than an investigation.6

MR. CHERTOFF: What -- what else can you7remember in terms of any objectives he had going into8that meeting?9

THE WITNESS: I think that was it.10MR. CHERTOFF: Okay, who was at the meeting11

from the Department of Justice?12THE WITNESS: According to W-13, and my -- I13

remember Loretta King, Steven Rosenbaum, who was the14person I spoke to on the phone, Mark Posner, I don’t15particularly remember the other person but I do believe16that there was someone else there.17

MR. CHERTOFF: And what was the discussion at18the meeting?19

THE WITNESS: After the preliminaries of you20know everyone saying who they are, and why they’re21there, and stuff, and I can’t -- I can’t give you a22transcript of the meeting, but I think that the23Attorney General you know said he wanted to come down24


and meet with him personally, because he felt this was1an important issue.2

He wanted to explain to them the Soto appeal,3and why they felt it was important to -- to pursue that4appeal, from a -- institutional point of view, and I’m5-- you’ve got to understand I’m not quoting anyone6okay.7

MR. CHERTOFF: Hmmm.8THE WITNESS: That I think there was a9

description and I don’t know whether -- it may have10been from Jack Fahy of some of the things that are11talked about in that memo or you know that that12Committee was doing.13

And he indicated that he wanted to cooperate14with the Department.15

I think there was also a discussion of -- I16think he did say that he -- if after they were --17they’d done whatever it is they were going to do, they18had proposals that they want to make of things that the19State Police should -- should change, that he would be20very open to that, but I think he told them that -- he21wasn’t particularly inclined to want to enter into a22consent -- because I can tell you from my experience in23State Government, State Government doesn’t like consent24


decrees, and they never want to -- they’re always --1we’re always willing to cooperate, but we don’t2necessarily want to call it a consent decree.3

MR. CHERTOFF: Was there any discussion about4-- at that point about whether there really was a5problem, I mean was there any representation made by6anybody from the State of New Jersey that this is a7real problem or it’s not a problem, and the Judge is8just wrong, was there a discussion like that?9

THE WITNESS: I -- again I don’t -- you know10I don’t have clear recollections of a lot of the stuff. 11But I think that there -- that it was explained to them12why we felt that the Judge’s decision was defective,13for the two reasons that I mentioned, one the -- the14statistic -- the survey that they did, and two the --15shifting of the burden.16

And I think he said that he had been assured17-- shouldn’t say -- I -- you know I don’t want to18remember things that didn’t happen.19

But I think that there would have been a20representation or a statement that he was assured by21the State Police that State Police as an institution22did not condone racial profiling, and was doing what it23-- you know doing things to make sure that individual24


troopers weren’t engaging in racial profiling.1MR. CHERTOFF: Did the people from the -- the2

Department of Justice in Washington explain why they3had decided to open up this matter with the State of4New Jersey?5

THE WITNESS: I think that they had been -- I6think they had a lot of the -- they had material from7the Soto case, and it was my -- and I don’t know8whether they said that, or you know somehow or other I9-- I reached this conclusion. But the conclusion that10I think I had, was that they had been contacted by11someone and I don’t know whether it was attorneys in12the Soto case, or you know the NAACP or some other13entity, I just don’t know who, about the Soto case,14because when I got that call, he was -- Mr. Rosenbaum15was talking about the Soto case, so they seemed to be16very aware of the Soto case.17

MR. CHERTOFF: Did they give you in the18meeting any request or model for the kind of19information they would be seeking?20

THE WITNESS: I believe that they did, and I21don’t know whether it was you know they handed it to us22at the meeting, or somebody went and got it after the23meeting broke up, but I did receive -- or we did24


receive a document that they said this is -- this sort1of documentation that they were looking for.2

MR. CHERTOFF: I’m going to show you --3THE WITNESS: Look for in such matters.4MR. CHERTOFF: I’m going to show you what’s5

W-14 and ask you if this is -- the document that you6got, and sent on to Jack Fahy concerning what would be7requested?8

THE WITNESS: The attachment to -- W-14 is9the document that was received.10

MR. CHERTOFF: And you sent this memo to Jack11Fahy?12

THE WITNESS: Yeah.13MR. CHERTOFF: Did you read the -- the14

request for documentation? Before you sent it?15THE WITNESS: Probably skimmed it.16MR. CHERTOFF: Did you focus upon the fact17

that they were requesting only information about stops,18but about subsequent law enforcement activity after the19stop, including searches, seizures and arrests?20

THE WITNESS: I don’t recall focusing on21that.22

MR. CHERTOFF: This is dated December 20th,23directing your attention to December 24th, the day24


before Christmas, did you have a morning meeting on the1subject of racial profiling with Colonel Williams, Jack2Fahy and the Attorney General?3

THE WITNESS: I believe there was.4MR. CHERTOFF: Who called that meeting?5THE WITNESS: I would assume it was called by6

the Attorney General.7MR. CHERTOFF: And why was it -- what was the8

purpose of the meeting?9THE WITNESS: To discuss the -- the visit to10

Washington and how we were going to respond to their --11request for information?12

MR. CHERTOFF: By the way when you left the13visit to Washington, when you were on the way back, did14you come back with the Attorney General?15

THE WITNESS: I don’t recall.16MR. CHERTOFF: Do you remember any discussion17

on the way back concerning the meeting?18THE WITNESS: No. I mean I had a -- I really19

don’t remember -- I had gone to a couple of meetings in20Washington, and there have been times when I’ve gone21down myself, and met with the -- met you know whoever22was going to be there. I think that I probably drove23down with him, but you know I can’t -- as I sit here I24


can’t remember the car ride.1It’s possible -- it’s possible that we took2

the train, and then a driver met us at the -- at the3airport, I just -- I don’t know. I mean I -- if you4have any of his schedules from that time, it might say5how we got there. 6

MR. CHERTOFF: Well let me you on the 24th,7the meeting on the 24th, did you discuss the meeting in8Washington and the response, what was the discussion?9

THE WITNESS: Again I don’t remember10specifics of the discussion but I -- I am sure it was11about to relay to the State Police Superintendent what12was discussed at the meeting, and what you know sort of13information they were looking for, and to talk about14how we were going to respond to it.15

MR. CHERTOFF: What was the -- what was the -16- what was the Attorney General’s -- what did he17express, what view did he express about the meeting in18his -- in his view of what ought to happen?19

THE WITNESS: I think he felt that it was a20positive meeting, and he wanted to have us work with21the Department of Justice to provide documents about22stops.23

MR. CHERTOFF: Did anybody raise any issue24


about limiting the amount of documents, or limiting the1amount of information that would be conveyed?2

THE WITNESS: I think even at the meeting in3Washington, there was a discussion of volume, and4because Jack Fahy had worked on the Soto case, he was5familiar with issues of -- of volume, and I know -- I6know at some point there was a discussion of trying to7reduce the number of days, that they would look at it,8and you know what -- where should they look at. And I9think that the suggestion was made and I don’t know by10whom, it could have been by me, or could have been by11them, that since they were you know if you look at my12notes about the call, they were interested in the13Southern part of the Turnpike, and I think that was14focused on -- and that’s what the Soto case was about,15so I think that was focused as the area that -- that16they would look at. At least initially.17

MR. CHERTOFF: Was there any discussion in18this meeting on December 24th about what the actual --19if there had been an actual analysis of numbers at the20Moorestown Station, and what the result of that21analysis was?22

THE WITNESS: I don’t recall such a23discussion, I can’t tell you that there wasn’t, I just24


don’t recall.1MR. CHERTOFF: Now were you assigned to help2

prepare a letter to respond to the Department of3Justice?4

THE WITNESS: I think Jack Fahy was asked to5draft a letter and he sent it to me, and I sent it to6the Attorney General.7

MS. GLADING: In reference to the meeting on8the 24th, do you recall who was there?9

THE WITNESS: Well, I was there the Attorney10General was there, the Superintendent was there, Jack11Fahy was there. And there were -- there were other12people from the State Police but I don’t recall who.13

MS. GLADING: Do you recall if Sergeant Tom14Gilbert was there? From the State Police? 15

THE WITNESS: He may have been.16MS. GLADING: Thank you.17MR. CHERTOFF: Was Rover there? George18

Rover?19THE WITNESS: I don’t think so. I’m not20

really sure when Rover got involved, and I’m not sure21that he was involved at that point. He could have22been, but I don’t think so.23

MR. CHERTOFF: All right, I’m going to show24


you G-8, is this the memo that was transmitted to you1by Jack Fahy as a draft?2

THE WITNESS: Yeah.3MR. CHERTOFF: And the draft is attached?4THE WITNESS: Yes.5MR. CHERTOFF: Now, directing your attention6

to the cover memo, it says in the second paragraph “the7policy concerning the auditing of Stations regarding8allegations of racial profiling is still an effort in9progress, while some initial audits have been10undertaken, the formalization of an investigative11procedure is still under development.” Did you12understand that to be the case? Independently of this13memo?14

THE WITNESS: I don’t recall.15MR. CHERTOFF: Now do --16THE WITNESS: I don’t -- I don’t -- I don’t17

have any recollection of it, other than reading it in18this memo. But I could have.19

MR. CHERTOFF: You read the attached draft?20THE WITNESS: Yeah.21MR. CHERTOFF: Look at the next to the last22

page. Page 5. The last paragraph says, “I believe the23time has come to spend sufficient resources to develop24


and conduct a trustworthy violator survey,” do you know1what a violator survey is?2

THE WITNESS: Yeah, I think -- there were two3kinds of surveys that were discussed, one was a user4survey and one was a violator survey.5

And the violator survey would have been --6trying to figure out what categories of people were7violating some statute, while driving on whatever8roadway it was, I guess the Turnpike was the one that9was being looked at, that were sort of the pool of10people that could be stopped. I think one of the11problems was that since at that time the speed limit on12the Turnpike was 55, and probably only all of us in the13room are the only people who drive 55 on the Turnpike.14

You know there was some concern that the15whole world was -- could be included, so there -- I16know that there was always difficult to -- and there17were discussions of this after, you know, actually how18do you do a violator survey, and in fact I don’t even19know whether one’s been done to this day.20

I think I read in the newspaper that a user21survey was done, within the last six months or a year.22

MR. CHERTOFF: Now continuing in the23paragraph, it says, “the State Police report to me that24


the number of stops involving black motorists on the1Southern portion of the Turnpike patrolled by Troopers2assigned to the Moorestown Station, remains near the3level reported in the Soto case. This figure is also4higher than that reported in other State Police5stations in this state including along the Turnpike.”6

Was there any discussion about that fact,7that you had either in the December 24th meeting, or8the subsequent meeting you had with the Attorney9General on January 7th?10

THE WITNESS: I don’t recall a specific11discussion, I’m not sure that there was a -- ever a12meeting or a conversation to discuss the drafting13process because a lot of times a drafting process would14take place with -- you know I’d send the memo to the15Attorney General, he’d make some changes, send it back,16and I would have it redrafted. And I know in -- in17reviewing documents that I think were in my file, that18that took place here, so I don’t know whether I ever19specifically met with him and discussed issues of20drafting.21

But again -- I as I said, there are things22that I don’t remember.23

MR. CHERTOFF: I want to show you -- a number24


of drafts of this letter, in which I’m going to mark --1you have before you G-8, I’d like to keep that there. 2And now I’d like you to look at F-26, which I’m going3to give you, and G-9, which we’ll mark as W-15.4

THE WITNESS: Well I can tell from W-15 that5he did ask to speak to me about the letter.6

MR. CHERTOFF: Okay, and that would have been7on January 10th, that’s Peter Verniero’s writing at the8bottom?9

THE WITNESS: Yes.10MR. CHERTOFF: Okay, now I want you to -- if11

you look at W-15 and you turn to the next to the last12page, which is Page 5, and you lay it next to G-8,13which is the draft you got from Jack Fahy, you’ll14notice that at Page 5 of the letter --15

MR. MILLER: Mr. Chertoff, just wait a16second.17

MR. CHERTOFF: All right.18THE WITNESS: Page 5.19MR. CHERTOFF: Of G -- of both G-8 and of F -20

- of W-15.21THE WITNESS: Yeah.22MR. CHERTOFF: You see at Page 5 there’s a23

paragraph -- Page 5 of G-8, which is the draft you got24


from Jack Fahy there’s a paragraph talking about the1Kennedy and Soto litigation, that ends with the phrase2“statistically reliable conclusions”. Then there’s the3paragraph that we read earlier.4

THE WITNESS: I’m sorry, I don’t see where5you are.6

MR. CHERTOFF: Page 5.7THE WITNESS: Yeah.8MR. CHERTOFF: There’s a middle paragraph,9

says.10THE WITNESS: Right.11MR. CHERTOFF: “I believe this is a woefully12

inadequate survey in which to base statistically13reliable conclusions.” Do you see that?14

THE WITNESS: Oh, no. Okay.15MR. MILLER: Which exhibit?16THE WITNESS: This is on --17MR. CHERTOFF: It starts on the top, G-8.18THE WITNESS: Wait, wait, wait.19MR. MILLER: G-8, okay, he was --20THE WITNESS: I found it, G-8. Our experts21

concluded, and I believe --22MR. CHERTOFF: Right.23THE WITNESS: Okay.24


MR. CHERTOFF: You -- I’d like you to look at1W-15 and find that same sentence, on W-15 on the same2page?3

THE WITNESS: Right.4MR. CHERTOFF: You see that okay. Now, on G-5

8 which is the draft you got from Jack Fahy, there’s6been a paragraph that begins, “I believe the time has7come to spend sufficient resources to develop and8conduct a trustworthy violator survey”. And it goes on9to talk about the Moorestown Station, and that10paragraph goes on -- to discuss the Moorestown Station.11

Do you see that paragraph in the Fahy draft12contained in the draft that you received back from13General Verniero, which is W-15?14

THE WITNESS: Well I’m confused. That -- F-1526.16

MR. CHERTOFF: No we’re not -- forget F-26,17we’re at -- I want you to focus on two exhibits, G-818and W-15.19

THE WITNESS: I’ll try and answer your20question.21

MR. CHERTOFF: Okay. On G-8 do you see --22there’s a paragraph that talks about Moorestown23Station? On Page 5 and to Page 6?24


THE WITNESS: Right.1MR. CHERTOFF: Is that paragraph contained in2

the draft of the letter W-15 which is attached to the3memo in which you sent a -- another draft up to Peter4Verniero and then he writes a note about let’s discuss?5

THE WITNESS: No.6MR. CHERTOFF: Okay. Now, let me also show7

you F-26.8THE WITNESS: Right.9MR. CHERTOFF: And if you turn again to Page10

8, of F-26, do you see that the paragraph that begins11“I believe the time has come to spend sufficient12resources to develop and conduct a trustworthy violator13survey.” Has been stricken out?14

THE WITNESS: Right. Correct.15MR. CHERTOFF: Do you recognize the16

handwriting that struck it out?17THE WITNESS: Well, if -- I think what you’re18

asking me is who struck it out?19MR. CHERTOFF: Yeah.20THE WITNESS: And I -- my understanding was21

that the Attorney General struck it out.22MR. CHERTOFF: That Peter Verniero did?23THE WITNESS: Yes.24


MR. CHERTOFF: When did he do that, did he do1that -- I take it he would have done that between --2let me take it back, G-8, when you got G-8, did -- from3Jack Fahy, did you send that to him in the form that it4came from Jack Fahy?5

THE WITNESS: To him being Peter Verniero?6MR. CHERTOFF: Him being Peter Verniero?7THE WITNESS: I don’t know whether you have8

compared G-8 and F-26 the texts.9MR. CHERTOFF: I have not.10THE WITNESS: To tell whether they’re the11

same, I think -- see what I’m driving at is what was12attached to G-8 was on the letterhead of the Division13of Criminal Justice.14

MR. CHERTOFF: Hmmm.15THE WITNESS: And -- and F-26 is on blank16

paper.17MR. CHERTOFF: As is W-15.18THE WITNESS: This is W-15, right. Now let19

me see, well. I’m a little -- I’ve gotten lost. If20you look at -- see I think what happened is that the21letter that’s G-8 was retyped.22

MR. CHERTOFF: And that would be?23THE WITNESS: That was -- that would be F-26. 24


But what I don’t know was whether any changes were1made. Or whether it was just retyped. And if you look2at the handwritten note just under the word draft?3

MR. CHERTOFF: Yes.4THE WITNESS: That’s my writing, Patty is my5

secretary, so if -- if I read this which says “Patty6please make revisions and produce another double spaced7draft,” I would assume that I gave G-8 to my secretary8and asked her to retype it, what I don’t know is9whether I made any changes in it, so that such that F-1026 and G-8 are identical, or whether I made some11changes, and F-26 is another revision.12

MR. CHERTOFF: Okay, the handwritten changes13on F-26, what was added on F-26 by hand, that’s all14Peter Verniero’s writing except for the note to Patty?15

THE WITNESS: No.16MR. CHERTOFF: Okay, what -- whose writing is17

on the first page?18THE WITNESS: It’s by and large it’s General19

Verniero’s writing, if you -- there are some changes20that I made.21

MR. CHERTOFF: For example would that be on22Page 4?23

THE WITNESS: Well let -- can I come over and24


show you?1MR. CHERTOFF: Yeah, sure -- for the record,2

so we’ll go page by page.3On Page one, other than the note to Patty.4THE WITNESS: That’s my writing, the date5

changes, my writing. This change here from mutually6committed to mutual commitment is my writing.7

MR. CHERTOFF: And the other writing on the8page is Peter Verniero’s.9

THE WITNESS: I believe so yes.10MR. CHERTOFF: Okay. Page two.11THE WITNESS: Down here where there’s a line12

and then paragraph sign. That’s -- I did that.13MR. CHERTOFF: What about the strike outs on14

Page one and Page two.15THE WITNESS: I believe that’s the Attorney16

General’s.17MR. CHERTOFF: Okay, Page 3 has no -- just18

commas?19THE WITNESS: I think those are my commas,20

but I --21MR. CHERTOFF: Page 4?22THE WITNESS: That’s my changes.23MR. CHERTOFF: Your writing on Page 4?24


THE WITNESS: Yeah, I changed this to a lower1case, and put emphasis added.2

MR. CHERTOFF: Page 5?3THE WITNESS: The fourth line up those are my4

changes, and I believe that these are the Attorney5General’s changes.6

MR. CHERTOFF: That would be -- when you say7these, you mean the last page?8

THE WITNESS: The last line.9MR. CHERTOFF: Last line rather. Okay, now10

we’re on Page 6?11THE WITNESS: Page 6 in the first full12

paragraph those are my changes. Most of the changes in13the second paragraph are the Attorney General’s, except14I put in -- second paragraph, third line down, I did15“on -- put in on and crossed out for” the state16concerning --17

MR. CHERTOFF: Okay, and then finally let’s18go to page -- let’s go to Page 7 now.19

THE WITNESS: I think that the changes at the20top are the Attorney General’s except for the removing21of the comma. And most of the changes down here are22mine, except I think that the Attorney General --23

MR. CHERTOFF: Wrote African American --24


THE WITNESS: Crossed out black and put in1African American.2

MR. CHERTOFF: Instead of blacks. But -- so3the writing in the second paragraph is your writing,4except for African Americans?5

THE WITNESS: Right.6MR. CHERTOFF: Now, finally we come to the7

last two pages, Page 8.8THE WITNESS: Now at the second line on Page9

8, I added the “of”.10MR. CHERTOFF: And the rest of the writing11

and the cross outs are Peter Verniero’s?12THE WITNESS: Correct.13MR. CHERTOFF: And then likewise with respect14

to Page 9, is the -- are the writings and cross outs15Peter Verniero’s?16

THE WITNESS: I believe that’s correct.17MR. CHERTOFF: Now, did you have discussion18

with Peter -- finally showing you -- well if you look19at W-15, it says, “Alex let’s discuss 1/10.”20

Did you have discussion with Peter Verniero21about why he had decided to strike out that passage,22that talked about the fact that the Moorestown Station23was still showing a higher percentage of minority stops24


than other police stations, in the wake of the Soto1decision?2

THE WITNESS: I don’t remember such a3discussion, I can’t guarantee that I didn’t have it, I4just don’t remember it.5

MR. CHERTOFF: Did you discuss the strike --6strike out of that with anybody else?7

THE WITNESS: Not that I recall.8MR. CHERTOFF: Did you have a meeting --9THE WITNESS: Let me just point out that W-1510

is the cover memo that sends what I believe is F-2611with all the changes made, because I say attached is12the next draft of the King letter, I made a few changes13in addition to yours, and then we got into a quick --14we used to sometimes quibble about grammar, it’s --15effected or affected, and always had trouble with that.16

MR. CHERTOFF: I see by the way on F-26 it17seems to say January 17th. But on the typed version it18says January 7th, am I misreading it, is it not 17, or19is it just a carrot with a 7? And maybe it’s a little20obscured in the --21

THE WITNESS: It does look like 17.22MR. CHERTOFF: But your recollection is it23

would have been 7, so maybe that’s a -- that’s the24


carrot sign, perhaps or the way you edit in the 7?1THE WITNESS: Well it looks to me like I2

wrote 17, and I -- I guess that was a mistake, because3--4

MR. CHERTOFF: It’s ultimately typed a 7?5THE WITNESS: Right.6MR. CHERTOFF: Okay, is there anything else7

you remember about the sequence -- about the decision8to delete that paragraph in the last two pages, of F-926?10

THE WITNESS: No.11MR. CHERTOFF: And we’re going to come a12

natural stopping point in a minute, but let me -- ask13you whether you remember a meeting on January --14actually you remember the meeting on January 10th15concerning this draft? First of all do you remember16who attended?17

THE WITNESS: Are you saying that there was a18group meeting on January 10th?19

MR. CHERTOFF: Yes.20THE WITNESS: Or are you asking me about21

whether I responded -- to the Attorney General’s let’s22discuss?23

MR. CHERTOFF: Well no -- did you respond to24


the Attorney General’s let’s discuss on January 10th?1THE WITNESS: I have to assume so, because I2

wasn’t in the habit of ignoring him.3MR. CHERTOFF: If I show you a January 10th4

calendar from the Attorney General, showing a 10:005a.m. meeting with Colonel Williams and Alex Waugh, and6represent to you that that’s on the calendar, would7that -- would conclude from that that that was when you8had this meeting regarding the letter?9

THE WITNESS: Not necessarily.10MR. CHERTOFF: Do you remember meeting on11

January 10th? Concerning racial profiling with12Colonel Williams?13

THE WITNESS: I remember that there were a14number of meetings, I don’t particularly remember what15days they were. Now I don’t know whether I got -- W-1516before or after the meeting, it’s very possible that it17was discussed at the meeting, or it’s possible that it18came to me, you know, he looked at it after the19meeting.20

MR. CHERTOFF: All right I’m going to show21you what’s been marked as G-12, for identification. 22And I’d like you to take a look at that. Have you ever23seen this document before?24


THE WITNESS: I don’t believe so.1MR. CHERTOFF: Okay. I want to -- focus your2

attention on certain things that appear on the3document, and see if this refreshes your memory about4the sequence.5

Now, again your -- and on January 7th, you6send -- I’m sorry on January 9th, you send the revised7draft of the letter to Loretta King to Attorney General8Verniero, correct?9

THE WITNESS: Say that again?10MR. CHERTOFF: On January 9th, you send the11

revised letter?12THE WITNESS: Correct.13MR. CHERTOFF: The Loretta King letter to14

Peter Verniero?15THE WITNESS: Correct.16MR. CHERTOFF: And that is the letter in17

which the Attorney General has previously deleted the18reference to Moorestown Station, correct?19

THE WITNESS: Correct.20MR. CHERTOFF: And then at the bottom of the21

letter he -- the Attorney General writes, “Alex let’s22discuss”, signs his name and writes 1/10, correct?23

THE WITNESS: I believe it’s 1/10.24


MR. CHERTOFF: Okay. Now on -- if you look1at Exhibit G-12 it says on January 9th, 1996, I -- that2being Sergeant T. Gilbert?3

THE WITNESS: Right.4MR. CHERTOFF: “Was contacted by SDAG Fahy,5

he related that after briefing Alex Waugh on the6meeting of 1/8/96, they discussed the appropriate7response to the Justice Department’s request for8information. According to SDAG Fahy, he was instructed9by Waugh to contact the State Police and direct that10efforts be made -- initiated to collect and organize11the data requested by the Justice Department. In12discussing this decision with SDAG Fahy, I emphasized13that the request as presented will require an extensive14and crossly deployment of resources, it was agreed that15this matter would be brought to your attention for16analysis, and appropriate dialog with the Attorney17General.”18

Do you remember having had a conversation19with Fahy on or around January 9th, concerning20responding to the Justice Department’s request for21information?22

THE WITNESS: I don’t remember such a23conversation, but it would have been logical that I24


would have had it.1MR. CHERTOFF: And showing you G-11, for2

identification, is that a memo dated January 9th, to3you from Jack Fahy, talking about discussions he had4had with experts about a violator survey, on the5southern portion of the Turnpike?6

THE WITNESS: Right.7MR. CHERTOFF: Now you wrote two PV/FYI?8THE WITNESS: Correct.9MR. CHERTOFF: And was that because the10

Attorney General was asking to have -- be kept closely11informed about what was going on with respect to this12matter?13

THE WITNESS: Yes.14MR. CHERTOFF: And then this writing on the -15

- left hand side, “Alex let’s bring this up at our 1016a.m. meeting today, P 1/10.” Is that Peter Verniero’s17writing?18

THE WITNESS: Yes.19MR. CHERTOFF: Does that refresh your memory20

that in fact on the January 10th meeting you attended21and among the subjects to be discussed was the response22to the Department of Justice’s request for information?23

THE WITNESS: Yes, I think it does. And --24


it also suggests to me that I might have received W-151back before the meeting, because they’re both were sent2to him on 1/9, and they both came back 1/10. And the3way things worked with every Attorney General that I4ever worked for, is they would take their mail home,5and look at it, either that night, or in the morning,6you know when they’re being driven in, or whatever, and7write whatever they were going to write.8

MR. CHERTOFF: Now, going back to G-12,9there’s a note from Colonel Williams, and written down10there, 1/10/97 a.m., “spoke to A.G. Verniero and AAG11Waugh, referenced the data requested by the Justice12Department, at this time same will be restricted to the13Turnpike stations of Cranbury and Moorestown.” Is that14in fact part of what was discussed on January -- or15agreed upon on January 10th, 1997 at the 10:00 a.m.16meeting?17

THE WITNESS: Well, yes, I assume so, as --18as I said before, there were discussions of what19stations or -- or locations were going to be looked at20and there was an issue of volume, and I know that that21was discussed at a number of meetings, and I would have22no reason to dispute Colonel Williams note, that it was23discussed at that meeting, and as I said, Cranbury and24


Moorestown were the two stations at the Southern part1of the -- Turnpike, I think those are -- I think Soto2involved both of them. And that’s what the Justice3Department said they were going to use.4

MR. CHERTOFF: Was there any discussion at5this point concerning what the actual figures might be,6if one looked at other stations in other parts of the7state?8

THE WITNESS: Not that I recall.9MR. CHERTOFF: What was the discussion about10

what position to take with respect to this response to11the Justice Department at this January 10th meeting?12

THE WITNESS: I don’t have a very good13recollection of the meeting. I know that that issue14was discussed, and because you’ve refreshed my15recollection by these documents.16

MR. CHERTOFF: Why was it decided to restrict17the information to those two stations?18

THE WITNESS: Because there was a question of19how much was going to have to be photocopied and I20think at some point there was discussion -- and I don’t21even know whether it was before or after that, and as I22think I said in a prior answer, it may have been as23early as when we met with them, about trying to focus -24


- you know focus the attention so that we didn’t have1to photocopy a zillion documents.2

MR. CHERTOFF: Now, I want to show you3finally, and then maybe we’ll break for lunch for half4an hour. I’d like to show you --5

MR. WEBER: W-16.6MR. CHERTOFF: W-16 and see if you recognize7

this? It’s a fax to --8THE WITNESS: Yeah, I --9MR. CHERTOFF: -- George Rover from Patty10

Harvey, for Alex Waugh?11THE WITNESS: I see what it is, and I don’t -12

- I don’t know whether I ever saw it, but I’m sure that13it’s accurate because --14

MR. CHERTOFF: Let me show you a different15version of it, actually -- with the actual attachment,16that may help you. What’s attached to it is the -- is17actually what we’ve previously described as --18

MR. WEBER: W-15.19MR. CHERTOFF: W-15.20THE WITNESS: Right.21MR. CHERTOFF: Did you communicate through22

your secretary to Alex, “do not talk to anyone before23you talk to me, no freelancing.”24


MR. MILLER: Rover.1MR. CHERTOFF: I’m sorry to Rover?2THE WITNESS: Yes.3MR. CHERTOFF: And what did you mean by that?4THE WITNESS: What did I mean by no5

freelancing?6MR. CHERTOFF: By -- by your message to7

Rover, “do not talk to anyone before you talk --“8THE WITNESS: At some point there was a9

discussion I guess of who was going to do the leg work,10and I believe that I suggested George Rover. Who used11to work with me, in Legal Affairs, who was -- had12worked with State Police while he was at Legal Affairs,13and who was -- he was interested in sort of getting14back involved with OAG, and come and see me every once15in a while, and say, you know, I’d like to come back to16OAG.17

And I think I was the one that suggested that18he might be a person who could do this assignment.19

And I would assume that I must have gotten at20least a preliminary okay from the Attorney General, so21I sent this to him, and I -- again I don’t -- I don’t22remember detail but I think for me to have said, don’t23talk to anyone before you talk to me, would indicate24


that I may not even have spoken to him yet about1working on it. But I may have.2

And no freelancing meant that was sort of a3joke that we had, that I wanted him to make sure that I4knew what he was doing.5

MR. CHERTOFF: This is probably a good time6to take a break.7

MS. GLADING: Can I just clarify for the8record, that in the consecutive numbers as the9documents were released, the information request from10the Department of Justice was at the back of this --11this fax, and that would bring it to 14 pages as is12represented on the cover.13

MR. CHERTOFF: Okay.14MR. MILLER: That was my recollection that15

the letter W-15 wasn’t the attachment, but it was16something else.17

MR. CHERTOFF: OH, Okay.18MS. GLADING: I think it was all of it,19

actually because it’s 14 pages.20MR. CHERTOFF: Pages, that would include both21

the response and the original request.22THE WITNESS: Right, but it’s also the --23MR. MILLER: All right.24


MR. CHERTOFF: Okay. How does 30 minutes, or145 minutes seem?2

Is there some place around here we can get --3grab a quick bite, or --4

(Luncheon recess)5THE WITNESS: How many pages -- how many6

pages is --7MS. GLADING: This is a 14 page fax according8

to the cover sheet.9THE WITNESS: Right.10MS. GLADING: If you add the information11

request from the Department of Justice which is four12pages, and which it does appear, after these pages,13consecutively, as they were released from the Attorney14General’s office.15

THE WITNESS: It adds up to 14.16MS. GLADING: It adds up to 14.17THE WITNESS: Right.18

(Pause)19MR. CHERTOFF: Okay, Judge, let me now direct20

your attention -- excuse me -- to what we’re going to21mark as W-18.22

MR. WEBER: 17.23MR. CHERTOFF: 17 for identification. You24


recognize this memo?1THE WITNESS: Yes.2MR. CHERTOFF: All right, it’s a memo from3

George Rover to you dated February 5th, with his4initials, correct?5

THE WITNESS: Correct.6MR. CHERTOFF: And at this point he was7

essentially reporting to you, and then you would pass8on to the Attorney General what he said to you correct?9

THE WITNESS: Correct.10MR. CHERTOFF: And in fact the writing at the11

top, “To PV, FYI, I’ve asked DAG Rover to prepare an12options memo for our review and discussion” is your13handwriting, correct?14

THE WITNESS: Correct.15MR. CHERTOFF: Now. Is it fair to say that16

on -- on significant correspondence with the Civil17Rights Division you shared drafts with Attorney General18Verniero as a routine matter on this -- as it relates19to this case?20

THE WITNESS: Yeah, I think more at the21beginning than as time went on.22

MR. CHERTOFF: With respect to this23particular memo, let me direct your attention to Page24


2, why don’t you look at the first paragraph?1Do you remember discussions with Sergeant2

Gilbert concerning his contact with other State Police3organizations that were dealing with the Department of4Justice?5

THE WITNESS: I don’t -- I don’t really have6any recollection of ever speaking separately to -- to7Sergeant Gilbert, I think he was at meetings, that I8was at. But if he walked in the room I don’t even know9if I’d recognize him, and I don’t. I don’t think that10I ever had separate conversations with him.11

MR. CHERTOFF: Was it your understanding that12Deputy Attorney General Rover was a person who was13dealing with Sergeant Gilbert?14

THE WITNESS: Correct.15MR. CHERTOFF: And Rover would then16

communicate to you things from Sergeant Gilbert?17THE WITNESS: Well, Rover -- Rover would18

communicate with me, if your question is every time19Sergeant Gilbert told him something that he’d tell me,20I don’t think that that would be the case. But I -- I21was the sort of the person that he spoke to, and then I22spoke to the Attorney General.23

MR. CHERTOFF: All right, let me show you now24


W-18. It’s a memo to Alexander Waugh from Kenneth1Green, dated February 5th, 1997?2

THE WITNESS: Right.3MR. CHERTOFF: Do you recall this memo?4THE WITNESS: Yes.5MR. CHERTOFF: This -- who is Kenneth Green?6THE WITNESS: He’s a DAG in the Division of7

Law I believe.8MR. CHERTOFF: And would you tell us what you9

recall about the incident or the circumstances10surrounding this memorandum of February 5th?11

THE WITNESS: I remember that Val Holman who12is mentioned in the first paragraph who was the13Department EEOAA officer, that reported to me,14mentioned to me that a DAG had contacted her, and was15concerned about a traffic stop that I guess took place16while he was on his way to a Court, or some other work17assignment, and I said to her, why don’t you have him18write me a memo, and then I’ll look into it.19

MR. CHERTOFF: And what happened as a20consequence?21

THE WITNESS: I believe that there’s a memo22that I wrote to Terry Farley who was the Director of 23the Division of Criminal Justice, asking him to look24


into the matter.1MR. CHERTOFF: Okay, and this is -- I’m going2

to show you W-19.3MR. WEBER: 19.4MR. CHERTOFF: And ask you if this is the5

memo? I’m sorry, you know what, I think I’ve got the6wrong one for you. This -- supposed to make this W-19.7

THE WITNESS: Yes.8MR. CHERTOFF: What happened?9THE WITNESS: I think that at some point10

Terry Farley either called me or I ran into him in the11hall, and he said that he didn’t think that there was12any inappropriate conduct.13

MR. CHERTOFF: Now let me show you W-20 for14identification.15

It’s a memo dated February 6th, entitle 91116arrests. And let me ask you about that. Do you17recognize that memo?18

THE WITNESS: Yes.19MR. CHERTOFF: What does that relate to?20THE WITNESS: Is there an attachment to that?21MR. CHERTOFF: Not that I’m aware of, but --22THE WITNESS: I think that I -- I read in the23

clippings something about -- I read something in the24


clippings and I think that I sent Terry Farley a copy1of the clipping, but I don’t really remember exactly.2

MR. CHERTOFF: Does this relate to the same -3- incident as the Kenneth Green incident?4

THE WITNESS: No.5MR. CHERTOFF: I noticed you --6THE WITNESS: I was -- I was interested in7

it, because as I said, one of my responsibilities was8911, and PSAP is the -- is one of the parts of the 9119system.10

MR. CHERTOFF: Okay, the handwriting on top11“discuss with Alex,” whose writing is that?12

THE WITNESS: I don’t know. It -- I am not13familiar enough with Terry Farley’s writing to know14whether it’s his writing.15

MR. CHERTOFF: Now let me show you what we’re16going to mark as W-21 for identification.17

It’s a copy of a letter from G. Rover to the18Civil Rights Division, dated February 6th, 199719regarding the New Jersey State Police inquiry. And I20want to ask you if you -- with a copy to you, and I21want to ask you if you remember this document?22

THE WITNESS: Yes, it’s got my handwriting on23it.24


MR. CHERTOFF: And that’s where it says, “To1PV, FYI?”2

THE WITNESS: Right.3MR. CHERTOFF: 2/19.4THE WITNESS: And also where it says “file.”5MR. CHERTOFF: PV, Peter Verniero?6THE WITNESS: Correct.7MR. CHERTOFF: Now, where it says “Alex8

please see me,” who is that? Who wrote that?9THE WITNESS: Attorney General Verniero.10MR. CHERTOFF: And do you remember -- you11

were seeing him about this?12THE WITNESS: No. I mean again I assume I13

did, but I don’t remember it.14MR. CHERTOFF: Is it fair to say that if --15

we -- if there was a -- a request, a written request to16-- you to see the Attorney General, that you would in17fact have followed up on that request?18

THE WITNESS: Yes.19MR. CHERTOFF: And that it was -- the20

Attorney General’s practice -- Attorney General21Verniero’s practice to send you notes like this based22on material you’ve reviewed over night, that had been23presented to him?24


THE WITNESS: Yes.1MR. CHERTOFF: And let me show you now, a2

document marked W-22.3THE WITNESS: Yes.4MR. CHERTOFF: And this is a fax to George5

Rover, from the Department of Justice with an attached6Civil Rights Division letter, dated February 6th, 1997. 7And handwriting on the front of the fax sheet?8

THE WITNESS: Right.9MR. CHERTOFF: Where it says, “to PV, FYI”,10

that’s your handwriting?11THE WITNESS: Correct.12MR. CHERTOFF: And “Alex please see me” is13

the Attorney General’s handwriting?14THE WITNESS: Right.15MR. CHERTOFF: And again we can assume you16

would have seen him about this as well?17THE WITNESS: Yeah, I think -- I don’t18

remember the substance of the conversation very much,19but I think he asked me why they were writing directly20to the Turnpike.21

MR. CHERTOFF: On this one?22THE WITNESS: Yeah.23MR. CHERTOFF: What was the concern about24


that?1THE WITNESS: I don’t -- I don’t remember2

anything more than I think that’s what he asked me.3MR. CHERTOFF: And do you remember what your4

response was?5THE WITNESS: No.6MR. CHERTOFF: Did you find --7THE WITNESS: I mean I -- I didn’t find it8

unusual that they would write to the Turnpike to try to9get that information. He may have wanted to know10whether we would be getting a copy of whatever they got11too, I don’t know. 12

MR. CHERTOFF: Okay, let me show you now F --13I’m sorry, no W-22.14

MR. MILLER: We just did W-22.15MR. WEBER: W-23.16MR. CHERTOFF: 23, okay. A draft of a letter17

to Mark Posner, regarding staffing policies of the18State Police with statistical information, dated19February 27th, 1997.20

With a copy to you. And handwriting?21THE WITNESS: Right.22MR. CHERTOFF: Do you recognize the letter?23THE WITNESS: Yes.24


MR. CHERTOFF: Now, the handwriting which is1“to GNR, please revise and fax back, so I can run by2the A.G.,” that’s your handwriting?3

THE WITNESS: Correct.4MR. CHERTOFF: The other handwriting on the5

document, whose is that?6THE WITNESS: Could be mine, because it’s7

printing. It could be mine.8MR. CHERTOFF: And this is another letter you9

ran by Attorney General Verniero, correct?10THE WITNESS: I assume so.11MR. CHERTOFF: Let’s mark this W-23A, this12

document.13MR. WEBER: W-23A.14MR. CHERTOFF: It’s a copy of the same15

letter, with a -- date of February 28th, but16incorporating your revisions, on W-23, with a cover17sheet?18

THE WITNESS: Right.19MR. CHERTOFF: From you to Peter Verniero?20THE WITNESS: Right.21MR. CHERTOFF: And the handwriting on the22

cover sheet says what -- is that your handwriting at23the top?24


THE WITNESS: No.1MR. CHERTOFF: For PV review and what it says2

about something for PV?3THE WITNESS: No, that’s not my handwriting.4MR. CHERTOFF: Okay. The next page, where it5

says, “PV will be reformatted APW” is that you?6THE WITNESS: Yes.7MR. CHERTOFF: Again why would you have sent8

this letter for personal review by the Attorney9General?10

THE WITNESS: Well, I think that what he11asked me to do was to keep him apprized of what was12going on, especially as we were getting in -- you know,13beginning to get into the process.14

And so that’s what I was doing.15MR. CHERTOFF: Is it fair to say that he16

wanted to be -- he communicated to you, Attorney17General Verniero did, that he wanted to be kept18informed at a fairly detailed level of what was going19on with respect to this issue with the Department of20Justice?21

THE WITNESS: Certainly at the beginning he22did when we got to the point later on where we were23sending a lot of -- or George Rover was sending a lot24


of documents I don’t even think he sent all that stuff1to me, so it -- it was -- this was the beginning of the2process, and I think he wanted to be involved in that.3

MR. CHERTOFF: And things of significance I4take it that came to your attention with respect to5this matter, you conveyed to him?6

THE WITNESS: Correct.7MR. CHERTOFF: All right, let me show you now8

-- we’re going to be up to W-24 for identification.9Do you recognize this document?10THE WITNESS: Yes.11MR. CHERTOFF: And it’s a memo to you from G.12

Rover, dated March 3rd, 1997?13THE WITNESS: Right.14MR. CHERTOFF: The handwriting where it says,15

“to be PV, FYI, 3/4/97” is that your writing?16THE WITNESS: Yes.17MR. CHERTOFF: Did you have a discussion with18

Peter Verniero about this particular document? And19limiting the Department of Justice requests for radio20logs, to a couple of days?21

THE WITNESS: I don’t -- I don’t really22remember whether I -- discussed this with the Attorney23General or not. As I said, we talked to each other on24


a regular basis, so you know it could have -- I don’t1know whether you have a copy of it coming back to me2saying see me.3

MR. CHERTOFF: I don’t know that I do. Let4me direct your attention to -- I will -- let me5withdraw this question and ask you this. Is it fair to6say based on your experience, if you addressed a7document to Peter Verniero by handwriting to PV, FYI,8your experience was it would get to his desk?9

THE WITNESS: I’m having trouble with the10word desk.11

MR. CHERTOFF: It would get to --12THE WITNESS: It would -- my experience was13

that if I sent a memo to -- gave something to his14secretary there were sort of some bins, so I would15either give it to her, or I would -- you know there was16an in bin, or you know to read bin, or to -- to17something else bin. My experience throughout my time,18was that if I gave something to the Attorney General’s19secretary addressed to the Attorney General, the20Attorney General would see it. You know I can’t --21

MR. CHERTOFF: All right, but it wasn’t to22your -- in your experience someone between you and the23Attorney General who would screen his correspondence,24


or mail from you? And -- and separate some of it into1things that he wouldn’t see, and some of the things he2would see?3

THE WITNESS: There would have been people4who would screen stuff coming into the Attorney5General, but I would not have expected that those6people would screen out something from me. And I’m7certainly not aware that it ever happened.8

MR. CHERTOFF: All right. On Page 2 of this9document, it says, “Mr. Posner also requested samples10of the various forms and records used in State Police11traffic enforcement activity. I advised him that in12the Attorney General’s January 17 letter and addendum a13copy of a consent to search traffic summons and warning14were provided. He acknowledged receipt of those15documents, but he also stated that he wanted to see16samples of radio logs, patrol logs, arrest reports, and17consent to search reports.”18

At this point in time, do you remember19discussion with George Rover or anybody else,20concerning the significance of an evaluation or21analysis of consent to search forms, as opposed to stop22data?23

THE WITNESS: I don’t know whether it was24


exactly at this time, but -- but at about this time and1going forward, there was a discussion of the difference2between I think the other documents that you mentioned3and the consent to search document, in that the other4documents related to the initial stop, and the consent5to search related to what happened after the stop was6made.7

And there was some question as to whether8that was in the scope of what they said they were9looking at.10

MR. CHERTOFF: Who participated in that11discussion?12

THE WITNESS: Well it wasn’t just one13discussion, it was --14

MR. CHERTOFF: Who were the -- the people who15participated from time to time in those discussions?16

THE WITNESS: George Rover, I’m sure I17discussed it with the Attorney General, I think -- I18think there was a meeting in April.19

MR. CHERTOFF: Could be May?20THE WITNESS: Could be, where that was one of21

the issues that was discussed.22MR. CHERTOFF: Okay, we’re going to put that23

aside and then we’ll come back to it, when we get to24


that meeting.1THE WITNESS: I’m aware of it as an issue2

that was under discussion.3MR. CHERTOFF: All right, at the same time, I4

take it the Soto brief is being prepared, right?5THE WITNESS: Correct.6MR. CHERTOFF: And again at this period of7

time was there any discussion or consideration given to8terminating or abandoning the survey --9

THE WITNESS: I don’t remember any such10discussion.11

MR. CHERTOFF: Was the Attorney General12personally reviewing that brief as well?13

THE WITNESS: I believe so.14MR. CHERTOFF: Is --15THE WITNESS: I don’t know whether there are16

some documents, he -- he frequently liked to review17significant briefs, and you know wouldn’t just be18related to this issue.19

MR. CHERTOFF: All right, let me show you F-2022.21

MS. GLADING: Before you move to another22exhibit, can I ask a question on this exhibit.23

On the March 3rd, 1997 letter, or memo.24


MR. WEBER: That would be 24.1MS. GLADING: Yeah, W-24, the last paragraph,2

the discussion of the violator survey.3THE WITNESS: Right.4MS. GLADING: It indicates that Mr. Posner5

said that he’d like to send a letter detailing the6methodology which DOJ would be interested in utilizing7to evaluate State Police enforcement data? And -- as8part of this letter DOJ would include the specific9dates which it would like to examine as part of its10study, after some discussion Mr. Posner agreed that he11would not object to orally advising us of DOJ’s,12proposed methodology and dates if we wished -- and13dates if we wished to proceed in that fashion. He14indicated he was comfortable with our working15relationship and would be amenable to proceeding in16that manner. Did you ever have any discussions with17George Rover about the desire to keep paper18communications to a minimum with the Department of19Justice?20

THE WITNESS: No. He was writing letters to21them all the time.22

I don’t really understand that because if you23were doing a violator survey, you wouldn’t -- you24


wouldn’t know what dates you could do it until you had1it all prepared.2

So I don’t know how Mr. Posner would have3been able to send him dates, unless -- unless they were4talking about you know some point in the future.5

MS. GLADING: All right, did that strike you6as -- inexplicable then, as well?7

THE WITNESS: No I don’t remember thinking8that.9

MS. GLADING: I recall you testified earlier10that Attorney General Verniero asked you in November to11call the Department of Justice and ask them to hold off12on sending a letter, until there could be a meeting,13and this also indicates there was -- an interest in14having Department of Justice not communicate in writing15to the state, was -- is there any reason why the16Attorney General’s office would not have wanted to be17receiving written communication from the Department of18Justice?19

THE WITNESS: Well, I think we discussed20before, the fact that the Attorney General felt more21comfortable calling it a -- I forget what the word he22used inquiry rather than an investigation, so that’s I23think why he didn’t want them to send a letter saying24


we’re investigating you, prior to the meeting.1But I don’t remember any such concern after2

that, and in fact as I said, we were writing to them3all the time, so you know -- I don’t know what benefit4you’d get from having no letters from them and some5letters from us. I mean we were communicating in6writing to them, not -- not -- I think I did send7something to fax -- I may have faxed the letter to Ms.8King to Mr. Posner.9

I think -- but I think George Rover was10writing to him all the time, so, you know.11

MS. GLADING: Thank you.12MR. CHERTOFF: All right, mark -- showing you13

F-22, for identification.14That’s a memo from you to -- sorry, from Jack15

Fahy to Peter Verniero, it says appellate brief, State16v. Pedro Soto, and at the bottom there’s handwriting,17“John Fahy, looks okay to me, after we file, we may18want to send a copy to DOJ in Washington, Peter, 3/11”19do you recognize that as Peter Verniero’s handwriting?20

THE WITNESS: I do.21MR. CHERTOFF: Did he discuss with you the --22

first of all did he discuss the Soto brief with you?23THE WITNESS: I -- I would assume that the24


Soto Brief that I would have been that sent him the1Soto brief.2

Although -- I notice that he’s responding3directly to Fahy and in fact he didn’t even -- no --4I’m sorry, Fahy’s talking to him, and he’s going5directly back to Fahy. So maybe Jack was sending him6stuff directly, but I would have thought that at least7preliminary drafts were going through me, but I could8be wrong.9

MR. CHERTOFF: Do you remember --10THE WITNESS: But your question was did he11

ever discuss it with me, and he -- he may have but I12don’t remember.13

MR. CHERTOFF: Now, was this issue a14profiling or subject to -- discussion in the daily15staff meetings you were having with Attorney General16Verniero?17

THE WITNESS: I don’t remember any particular18staff meeting when it was discussed, generally the19purpose of the staff meeting was to sort of talk about20what -- what was going on today. And for instance, the21day before the -- the trip to Washington, there could22have been a discussion we’re going to Washington. He23could have asked me some question you know, what’s24


going on with the -- whatever.1But that -- that would have been the way it2

would come up.3MR. CHERTOFF: All right, well let’s --4THE WITNESS: These were not -- these were5

relatively short meetings, and they were at the6beginning of the day and sometimes they would be like a7minute. And it would depend on, you know was there8some -- was the issue of the moment something that a9couple of people on staff might know about and since a10lot of us who attended the meeting had sort of help11different hats, I think that what one thing that he got12out of it, is he would bring up a subject and -- even13though for instance it might be in my area of14responsibility today, it might have been in the past,15so I would be able to say, you know, so and so might16know about that.17

MR. CHERTOFF: All right, let me -- show you18a letter dated March -- I’m sorry a memo dated March1918th, which we’ll mark as W-25. It’s to you and Jack20Fahy from George Rover.21

Do you recognize this?22THE WITNESS: Yes, it’s got my handwriting at23

the top.24


MR. CHERTOFF: And what is it?1THE WITNESS: It says, file profiling.2MR. CHERTOFF: Now, there’s a passage here3

that says in the second paragraph, “While I do not4believe the retention of that information in these5documents would adversely affect our handling in this6matter, I would like to start setting the precedent7that we are not going to provide any names, if we start8producing consent to search and arrest report9documents.”10

Do you know what -- what the -- intent behind11that passage was or what the intent behind that12suggestion was?13

THE WITNESS: Well, if you recall there was a14memo that you showed me, I think this morning, it was15from Jack Fahy, and it talked about the Middlesex16County case, and it said that they’d only been -- that17the troopers had only been identified by initials, and18I -- I’m assuming and maybe I shouldn’t assume, that he19was just trying to -- maybe he was trying to follow20that precedent.21

MR. CHERTOFF: Did you ever have any22discussion about --23

THE WITNESS: But I didn’t discuss it with24


him. That particular issue.1MR. CHERTOFF: Did you ever have any2

discussion with anybody about the desirability of3keeping names off information supplied to the4Department of Justice so that they couldn’t contact5individual troopers and interview them, or something of6that sort?7

THE WITNESS: No. No to the second part of8it, it was fairly standard practice I think that when9we were supplying documents to somebody outside the10department that they would be redacted to remove names11of the public, or you know whatever. So it wasn’t --12it wasn’t unusual to be redacting documents, but to --13specific -- your specific question so that they14couldn’t contact them, that was not discussed as far as15I know.16

MR. CHERTOFF: All right, let me show you now17W-26, for identification.18

It’s a memo dated April 7, 1997 to Peter19Verniero from you. And it says, “attached is a copy of20the Justice Department’s request for specific21information with respect to dates chosen by V over a22two year period?”23

THE WITNESS: Right.24


MR. CHERTOFF: You recognize this?1THE WITNESS: Yes.2MR. CHERTOFF: Did you send it to Peter3

Verniero?4THE WITNESS: Yes.5MR. CHERTOFF: And it’s your initials?6THE WITNESS: Correct.7MR. CHERTOFF: What was the reason you sent8

this on to him?9THE WITNESS: Just part of my keeping him10

apprized of what was going on.11MR. CHERTOFF: It says, “DAG Rover is working12

with State Police to determine whether there’s a13pattern to these requests, and if so whether there is a14basis to suggest that they choose additional or15alternate dates.” What kind of pattern was it your16understanding that they were looking for?17

THE WITNESS: I know that -- I know that that18seemed to be a concern of George’s about whether there19was some sort of pattern, as opposed to whether these20were randomly selected dates, and it’s not something21that particularly troubled me. But I guess you know22they say that statistics can be manipulated or --23question -- questionnaires can be manipulated,24


depending on what questions you asked.1So there may have been some concern about2

whether this was a representative sample or something3like that. This is just really more speculation on my4part. I wasn’t -- I wasn’t particularly concerned with5that issue.6

MR. CHERTOFF: Well did anybody ever express7a concern to you, that the Civil Rights Division might8have some -- information that would allow them to know9where there were days where there were particular10problems, that they might focus in on?11

THE WITNESS: No.12MR. CHERTOFF: The reference to if so,13

whether there’s a basis -- basis to suggest that they14choose additional or alternate dates, did you15understand that to be a suggestion by George Rover that16if there was a pattern, to the dates, it might be17advisable for the state to suggest alternative dates18that were outside the pattern?19

THE WITNESS: Either additional or alternate20-- alternative, that’s what he says.21

MR. CHERTOFF: And that --22THE WITNESS: For instance, if I can -- can23

just give you my -- what my understanding was. I don’t24


-- you know if all of these were Mondays, let’s say, a1statistician might say well you know you shouldn’t just2have all Mondays you should have one from every day of3the week.4

You know that’s I think what the concern was.5MR. CHERTOFF: Well is that what he expressed6

the concern was, or are you just speculating?7THE WITNESS: That’s -- this is -- I’m8

speculating now.9MR. CHERTOFF: But -- so you don’t know10

whether there was a concern from a statistical validity11standpoint or for some concern that perhaps there was a12source that was giving the Civil Rights Division13specific information that they might focus in on?14

THE WITNESS: I don’t -- as far as I know15there was no -- discussion of -- of that issue.16

I mean that some one was -- had told the17Division -- the Division on Civil Rights that they18should look at these days?19

MR. CHERTOFF: Yeah?20THE WITNESS: No I don’t -- as far as I know21

there was no such discussion.22MR. CHERTOFF: All right.23THE WITNESS: So -- with me.24


MR. CHERTOFF: I’m sorry, let me now move1over to April, of 1997. And let me -- let me mark as W2--3

MR. WEBER: 27.4MR. CHERTOFF: -- W-27, it’s a document that5

has a cover from the desk of Alexander P. Waugh, Jr.,64/23/97 to PV and attached is a draft memo of April722nd, 1997 to you from George Rover?8

THE WITNESS: Right.9MR. CHERTOFF: Do you recognize the document?10THE WITNESS: I do.11MR. CHERTOFF: And first of all with respect12

to the handwriting on the front sheet of this, 4/23/9713to PV, and then “I would like to discuss this issue14with you, the attached is my only copy.” Is that your15writing?16

THE WITNESS: Yes, it is.17MR. CHERTOFF: And what comes back “Alex do18

we need another meeting in D.C. it appears so. P.” 19That’s Peter Verniero? You have to answer orally?20

THE WITNESS: Yes, I’m sorry. Yes it is.21MR. CHERTOFF: Now the document that’s22

attached, it was a memo to you from George Rover,23correct?24


THE WITNESS: Right.1MR. CHERTOFF: Do you remember the -- take a2

moment to review it, to refresh your memory, because3we’re going to spend a little bit of time on this. And4afterwards I’m going to ask you what you recall about5this, this memo on the issue -- issues addressed in it6as they were presented to you?7

(Pause)8MR. CHERTOFF: Do you remember this?9THE WITNESS: Yes.10MR. CHERTOFF: Let me address your attention11

first of all to certain passages in the memo. Let me12ask you -- before we do this, did you have a discussion13with Peter Verniero about this memo?14

THE WITNESS: I have to assume that we did,15because he asked me a question.16

MR. CHERTOFF: Okay. Let’s go first to Page174, of the attached memo.18

THE WITNESS: Yeah.19MR. CHERTOFF: There’s a passage here that20

says, “Of particular significance, these materials,21meaning DEA materials, are replete with references to22so called indicators of drug trafficking, including23those indicators that focus on the race or ethnic24


origin of the suspect.1I do not mean to suggest that in any -- of2

these materials the DEA supports the view that the3operator of a vehicle can be stopped strictly based4upon his or her race.5

However, once a motor vehicle is stopped for6a motor vehicle violation the DEA through it’s training7materials and intelligence information make it very8clear that certain racial or ethnic groups are more9likely than other groups to be engaged in illegal10activity.”11

Did you believe that that was -- that’s an12accurate statement of what that material says? When13you read this material?14

THE WITNESS: I don’t -- I don’t know that I15really read the material then, that carefully.16

MR. CHERTOFF: Well did you ask Mr. Rover17whether it was in fact the case that the DEA had18somehow suggested that certain racial ethnic -- or19ethnic groups are more likely than other groups to be20engaged in illegal activity?21

THE WITNESS: Do you have the attachments?22MR. CHERTOFF: This is -- this is all that23

there is. I don’t know if there’s any attachments. 24


There’s nothing in the memo that says there’s1attachments.2

All right, it’s a DEA --I’m sorry, it’s a DEA3memo, saying that cocaine threat to the United States,4and it starts at Bates number OAG874.5

THE WITNESS: Okay, I -- I think I sort of6paged through it, and I think he had underlined -- like7on -- here on this page, which is Bates number OAG877,8he has underlined Jamaican, Dominican, Haitian.9

MR. CHERTOFF: Okay, let’s read that --10THE WITNESS: Columbian, Mexicans. So, but11

again if I could try to explain I don’t -- I don’t12think I read this information that carefully because I13wasn’t really particularly persuaded that this was14something that we should be doing.15

MR. CHERTOFF: Well let me just be clear --16let’s clear on the record, the passage in question says17that the highest traffic, this is at Page 9 of the --18DEA report, OAG877, and the quote is, “That the highest19trafficking levels the crack market is controlled by20four groups. Los Angeles based street gangs and their21affiliates, and Jamaican, Dominican and Haitian22criminal groups.” Now that’s underlined by Mr. Rover,23correct?24


THE WITNESS: I assume so, it’s not -- I1didn’t underline it.2

MR. CHERTOFF: Would you interpret that3phrase as suggesting that member -- people who are4Jamaican or Dominican, or Haitian and the ancestry are5more likely than other groups to be engaged in illegal6activity?7

THE WITNESS: I don’t think so.8MR. CHERTOFF: Did anybody -- did you ever9

suggest to Mr. Rover that perhaps his understanding of10the law, or the logic, that as it applies in this area11was flawed, and he ought to correct himself if he was12going to be the principal person involved in handling13this matter for the State of New Jersey?14

THE WITNESS: I’m -- don’t understand the15question.16

MR. CHERTOFF: Did you ever say -- in other17words, did you ever look --18

THE WITNESS: No heard your question, I don’t19understand it.20

MR. CHERTOFF: Yes. Well my question is,21whether you looked at this material and -- and the22thought crossed your mind that perhaps Deputy Attorney23General Rover did not have an adequate understanding of24


the concepts being dealt with to be entrusted with the1responsibility to formulate a response?2

THE WITNESS: No. I don’t remember thinking3that.4

MR. CHERTOFF: When he says at the bottom of5the page, “indeed I believe that the higher levels of6DEA might have some serious questions about the motives7and objectives, of the present inquiry,” what did you8understand that passage to mean?9

THE WITNESS: Where is this page?10MR. CHERTOFF: Page 4, at the bottom.11

(Pause)12THE WITNESS: I don’t want to fence with you,13

but I -- I understood it to mean what it says.14MR. CHERTOFF: Well did you --15THE WITNESS: Which -- which is that people16

higher up in DEA might question -- well I don’t -- why17they’re doing the present inquiry.18

MR. CHERTOFF: Well, and -- and what did you19understand -- did you have a -- a suspicion or did Mr.20Rover articulate his suspicion or did anyone in the21Office of Attorney General, articulate a suspicion that22there were some motive or objective to the Civil Rights23inquiry?24


THE WITNESS: No.1MR. CHERTOFF: Do you know --2THE WITNESS: I mean I -- that’s a very broad3

question, I never thought that there was a motive,4other than that they wanted to do their job, which is5to find out whether there was discrimination going on.6

MR. CHERTOFF: Did Mr. Rover suggest an7alternative motive?8

THE WITNESS: Not that I recall.9MR. CHERTOFF: Did anybody else in the Office10

of Attorney General suggest an alternative motive? 11Speculating that there was an alternative motive or --12

THE WITNESS: I think that when -- when the13call first came in the Attorney General questioned14whether there was some sort of you know political15motive. But my understanding was that after he went16down to Washington and met with them, he -- he wasn’t17concerned about that.18

MR. CHERTOFF: What political motive did he19raise? In the discussion you had on December I guess209th, in anticipation of the meeting on December 12th? 21When did -- when did the Attorney General raise --22

THE WITNESS: I think when I first talked to23him.24


MR. CHERTOFF: What did he say that you1thought that the motive --2

THE WITNESS: No, he was -- I think he was3concerned that you have a democratic administration in4Washington and you have a Republican administration in5New Jersey, and is there some -- you know political6thing going on, and I told him that I didn’t think so,7that I thought that you know this is the Division doing8its job, and as I said, by the time you know, I don’t9think it was ever discussed again particularly after we10met with -- with him.11

MR. CHERTOFF: He didn’t just say it was12political as to him personally?13

THE WITNESS: Oh, no.14MR. CHERTOFF: All right, now let’s go to the15

next page, Page 5 of the memo. Is -- the third16sentence down says, “The tape” refers to a training17tape, “does reaffirm the constitutional principle that18a person cannot be stopped based solely upon his or her19race.” Now, was it your understanding that that was20the principal that you -- is you can’t stop someone21based solely upon their race, or was it your22understanding as you testified previously that you23can’t stop someone based in part upon their race,24


unless it’s a case specific piece of information? 1THE WITNESS: To what I testified to earlier.2MR. CHERTOFF: What -- okay. Okay, when you3

read this passage to -- did you -- or after reading4this passage did it -- did you ever ask or talk to5Deputy Attorney General Rover, to determine whether he6had a different understanding of what’s impermissible7than you did?8

THE WITNESS: I don’t know that I read this9as -- as saying something different. I mean it doesn’t10-- it’s not -- you could say that it’s not a complete11statement of the law.12

But I don’t -- or at least the part I’m13looking at here, understand him to be taking a position14that once you stop somebody you can necessarily take15race into -- so it -- it didn’t and it doesn’t strike16me that way, so I wouldn’t have discussed it with him.17

MR. CHERTOFF: All right, let’s go to the18next page. Page 6. A second unrelated issue, involves19NJSP consent to search data. “I’m anticipating the20USDOJ while expressing interest in State Police traffic21stop data is more interested in the consent to search22data.”23

And then he goes on to say at the next24


paragraph, “Why then do I believe USDOJ is interested1in this data? I anticipate the USDOJ will attempt to2follow the same course of action pursued by plaintiffs3in the Maryland case, the use of consent to search4statistics is evidence of selective Prosecution. In5the Maryland action, the plaintiff successfully argued6that the percentage of minorities subjected to consent7searches, supported a finding that the Maryland State8Police engaged in selective prosecution. As a result9of this finding, the MSP and a group of plaintiffs10entered into a consent order.”11

And at the end of the passage it says, “what12is very troubling is that the basis for the entry of13the consent order, was the fact that the MSP requested14consent to searches from what the plaintiffs claim was15a high percentage of minorities.”16

Now, is -- do you remember earlier discussion17about the significance of consent to search data before18this memo?19

THE WITNESS: Weren’t we talking about20another memo just now that -- mentioned consents to21search?22

MR. CHERTOFF: I think we talked about it a23little bit earlier, but other than that memo, you --24


does this memo trigger in your mind the point at which1there was -- let me withdraw the question. Put it in2english.3

As a consequence of getting this memo, or4this -- reading this passage in the memo, did you have5discussion with George Rover about why he was concerned6about the consent to search data?7

THE WITNESS: I don’t -- I don’t recall8specifically whether I called him or talked to him9after receiving this memo. Certainly there were10discussions in this time frame and going up to the11meeting which I think you said was in May about the12issue.13

MR. CHERTOFF: Did you have an understanding14that the consent to search at this point, in late15April, did you have an understanding that the consent16to search data could be very damaging to the state17because if it showed what the Maryland State Police18status showed it could be the basis for insisting on a19consent decree?20

THE WITNESS: I don’t think so.21MR. CHERTOFF: All right, now W-27, you get22

the note back that says, “do we need another meeting in23D.C., it appears so.” I want to show you what we’re24


going to mark as W-28.1MR. WEBER: Before we mark W-28, I’m going to2

remark, if I could take that W-27 back, the whole W-273we got from Ms. Glading, which includes the attached.4

MR. CHERTOFF: Good.5MR. WEBER: DEA information.6MR. CHERTOFF: All right.7MS. GLADING: Is 27.8MR. WEBER: Is W-27. So I’ve remarked it.9MR. CHERTOFF: All right, so W-28 now is an10

email to you from -- what looks like lpahart.11THE WITNESS: That would have been the12

Attorney General’s.13MR. CHERTOFF: Secretary.14THE WITNESS: Secretary.15MR. CHERTOFF: Dated 4/29/97. From you to16

her rather. Saying “I need some time to talk to PV17about the Justice Department and State Police re:18profiling.” And then there’s handwriting on the19bottom, “Alex let’s discuss, maybe time today, maybe.”20

And signed 4/31, is that Peter Verniero’s21writing?22

THE WITNESS: Yes, it is.23MR. CHERTOFF: And the writing in the upper24


left -- go back again to see them June 9, 10 as you1will be there, what does that refer to?2

THE WITNESS: I -- I’m -- I would assume that3I did go speak to him, perhaps with this in my hand,4and that he said maybe -- he’s pursued the issue about5going back to talk to them, and he told me that he was6going to be I guess -- I would -- I assume in7Washington, I don’t know whether he necessarily said at8the Department of Justice, at that time frame. There’s9an -- there’s a group known as NAAG, National10Association of Attorneys General it could have been11that there was a NAAG meeting, or he had some other12reason to be there.13

MR. CHERTOFF: Now, was this meeting going to14be about the issues raised by George Rover in the memo15of April 22nd, which is W-27? Was that what the16discussion was, about going to the Justice Department17was about?18

THE WITNESS: It could be, I mean I notice19that in what’s this, W-27?20

MR. CHERTOFF: Right.21THE WITNESS: He says, that we need to go22

back to -- do we need another meeting in D.C.23MR. CHERTOFF: It appears so.24


THE WITNESS: And then he says the same thing1here, but I -- I don’t know if I can answer your2question any better than that.3

MR. CHERTOFF: Let’s continue the flow again,4and with respect to this period of time, and then I’ll5ask you some general questions about it.6

I’m going to show you F-18 for7identification. This is from you to lpahart again on8May 15th, “Please let PV know that I recommend a9meeting with Colonel Williams, STAG --“10

THE WITNESS: I’m sorry. LPA is Law and11Public Safety and HART is the first four initials of12Alyse Hartpence. Who was the Attorney General’s13secretary.14

MR. CHERTOFF: All right, that’s very --15that’s cleared up a great mystery.16

THE WITNESS: There is -- there is no one in17the Department of Law and Public Safety named lpahart.18

MR. CHERTOFF: It’s very helpful actually. 19All right.20

Look at these two documents, the typed21portion is a copy of the email from you to Ms.22Hartpence dated May 15th.23

“Please let PV know I recommend a meeting24


with Colonel Williams, SDAG Fahey, DAG Rover and me to1talk about the Justice Department and profiling.” Why2did you write this email, what was the purpose of this,3or what started this?4

THE WITNESS: I can’t tell you that I can sit5here and remember why I wrote this email. But the -- I6think by this time, the issue of the consent to search7data and whether that was going to be disclosed to the8-- the Department of Justice, was an issue and I think9I was suggesting that we -- that there should be a10meeting to try to resolve it.11

MR. CHERTOFF: Now, this writing on this,12which is Colonel Williams, 6501, do you know whose13writing that is?14

THE WITNESS: I -- it’s not the Attorney15General’s I’m pretty sure, it -- do you want me to16guess?17

MR. CHERTOFF: Well, yeah if you can guess.18THE WITNESS: I mean I think it’s probably19

his -- his secretary’s. It’s -- I’m assuming that20that’s the -- the Colonel’s extension.21

MR. CHERTOFF: Extension? All right. “Alex,22should we -- also go back to D.C. P” that’s Peter’s23handwriting to you, correct?24


THE WITNESS: Right.1MR. CHERTOFF: And then you write back “To PV2

perhaps I think we should meet first.” That’s your3handwriting, right?4

THE WITNESS: Right.5MR. CHERTOFF: And then he says, “Okay, let’s6

meet.”7THE WITNESS: Right.8MR. CHERTOFF: And then it says three p.m.9

May 20th, is that the date you all agreed upon for a10meeting?11

THE WITNESS: I don’t really remember dates12that well, if that’s the date that there was a meeting,13then yes.14

MR. CHERTOFF: Okay. All right, I’m going to15show you a calendar from the Attorney General, that in16fact indicates that on May 20th, at three p.m. there17was a meeting with you, Colonel Williams, Mr. Fahy and18Mr. Rover. And I want to show you --19

THE WITNESS: I think an agenda for that20meeting.21

MR. CHERTOFF: Yes. That’s what I was about22to show you. I show you what has previously been23marked as G-19 for identification, and actually there24


are a number of versions of this, so why don’t we have1them, G-19A.2

MR. WEBER: Okay, here’s G-19.3MR. CHERTOFF: Okay. G-19B and G-19C.4MR. WEBER: Well, why don’t we just mark this5

as G-19A. It’s all stapled.6MR. CHERTOFF: All right, G-19A. And7

actually G-19A is the --8MR. WEBER: No, wait no -- we’re going to9

mark it W-20 --10MR. CHERTOFF: I’m sorry.11MR. WEBER: W-29. Of the other versions, and12

just for the record it’s GC2210, OAG973, and OAG974. 13That’s all going to be W-29.14

MR. CHERTOFF: All right, before we get into15this substance of the meeting, I just want to go16through the -- various iterations of the -- of the17agenda, you prepared the agenda right?18

THE WITNESS: Correct.19MR. CHERTOFF: And before we get to the20

content of what the agenda was, on Page 1 there’s21handwriting, do you recognize that handwriting?22

THE WITNESS: No. I mean I recognize my --23initials. Which are we talking about?24


MR. CHERTOFF: Where it says, “who went --“1MR. MILLER: Mr. Chertoff, just so we’re --2

I’m going to remove G-19 and we’ll just use W-29.3MR. CHERTOFF: W-29, Page 1.4THE WITNESS: We’re looking at W-29.5MR. CHERTOFF: There’s writing other than6

your initials, there’s writing on W-29.7THE WITNESS: Right. Right.8MR. CHERTOFF: Page one. Recognize the9

writing?10THE WITNESS: No.11MR. CHERTOFF: Okay, W-29, page 2, there’s12

writing, same memo but with writing, it says, “Tickle13two weeks.”14

THE WITNESS: Yeah, tickle two weeks is my15writing, and the dates are my secretary’s.16

MR. CHERTOFF: What did that mean, tickle two17weeks?18

THE WITNESS: We had a -- sort of a tickle19system, where if you wanted -- I wanted to be reminded20of something, I would put tickle, and either a date, or21a period of time, my secretary would put it in a -- one22of those accordion folders, and then she -- yeah, she’d23try to catch me on that date, and say, you know I’ve24


got all this stuff that I have to tickle with, and then1we’d argue about whether I really wanted to do that,2and she would make me.3

MR. CHERTOFF: What about Page 3, there’s4writing on it, that says, “SOP’s four day radio logs,5things of that sort.” Is -- do you recognize that6writing?7

THE WITNESS: No. It’s -- it’s printing, and8as I said, I print, but I don’t think it’s mine.9

MR. MILLER: I don’t read it as printing, but10that’s --11

MR. CHERTOFF: Yeah. It’s kind of half and12half.13

THE WITNESS: Some of it is.14MR. CHERTOFF: Why don’t we go through the --15

why don’t we use the one you wrote on, for purposes of16what I’m going to ask you which is the second page of17W-29?18

THE WITNESS: Right.19MR. CHERTOFF: Now, when you prepared this20

agenda, what did you use -- what was the basis on which21you determined what was going to be the subject of the22meeting?23

THE WITNESS: Well, you know I’m looking at24


the stars, and that’s -- what I don’t know is whether1somebody gave me a draft of this, and I had my2secretary type it up, or whether I did it myself.3

MR. CHERTOFF: All right, let’s go through4the items. What was the -- what did you anticipate5discussing about the status of the US Department of6Justice inquiry?7

THE WITNESS: Just what had gone on and what8needed to be done.9

MR. CHERTOFF: What about the US Department10of Justice strategy for traffic data, analysis11violators survey, what did you anticipate discussing12there?13

THE WITNESS: Well that had been something14that had been discussed, you know it was mentioned in15the letter to Loretta King, there were other memos, and16it was always something of an intractable problem,17because no one knew exactly how to do it, and who was18going to pay for it, and that stuff, and so I guess you19know I think that needed to be discussed.20

MR. CHERTOFF: Okay, now I want to skip to21future strategy, DEA operation, pipeline tape, and then22it says, “Justice Department”, what -- did the DEA23operation pipeline tape refer to that tape which George24


Rover had identified to you in the memo of April 22nd?1THE WITNESS: I believe so.2MR. CHERTOFF: And what was the -- to be3

discussed with respect to future strategy?4THE WITNESS: I think that was the issue of5

George’s suggestion that we should do the things that6he mentions in his memo.7

MR. CHERTOFF: Okay, finally production of8consent to search documents, Maryland case and proper9characterization of documents, where did that come10from, that agenda item?11

THE WITNESS: Well, as I said, the -- there12was an issue about whether these were within the scope13of what they said they were looking into which was14stops.15

And so that’s proper characterization of16documents, and the Maryland case is the Maryland case.17

MR. CHERTOFF: Now, you attended the meeting18at three p.m. on May 20th?19

THE WITNESS: I believe so.20MR. CHERTOFF: And apart from Colonel21

Williams and DAGS Fahy and Rover, was Sergeant Gilbert22there?23

THE WITNESS: Could have been.24


MR. CHERTOFF: Okay.1THE WITNESS: As I said, I -- if Sergeant2

Gilbert walked into the room, I might or might not3recognize him, the Colonel -- the Superintendent rarely4came to a meeting by himself. And I think that there5were other people there from State Police.6

MS. GLADING: Can we take a brief break.7MR. CHERTOFF: Sure.8

(Recess)9MR. CHERTOFF: Back on the record, okay we10

were focused on the May 20th meeting.11THE WITNESS: Right.12MR. CHERTOFF: Which we have the agenda for.13MR. WEBER: W-29.14MR. CHERTOFF: Okay. And I -- you described15

who you recall being at the meeting, what was discussed16at the meeting, what was the discussion? And we can go17point by point if it’s easier, as it relates to each of18these four agenda items?19

THE WITNESS: Well, the only part that I20remember was the -- there was a discussion of the21consent to search issue, and whether that was within22the scope of their -- you know initial, this is what23we’re looking at.24


I remember that State Police was concerned1about the consent to search, I think because of the2Maryland case, there was a discussion of consent3decrees.4

And I remember that the Attorney General -- I5guess -- I don’t know whether I would say he was -- I6think I would say he was frustrated, because State7Police or the Colonel kept talking about -- you know he8was nervous about a consent decree or something like9that. And I think that’s the meeting, I know it10happened at one meeting, that I was at, and I think it11was that meeting.12

Where the Attorney General sort of fixed him13in the eye, and said, look is -- let’s get this14straight, is racial profiling a problem at State15Police, and -- and he said no.16

There was a discussion of consent decrees,17and the Attorney General said I think more colorfully18than he did when he was down in Washington at the19Department of Justice, that it was our position that if20they had remedial measures that they wanted to suggest,21he would -- he would be open to them but he wasn’t22inclined to go along with the consent decree.23

MR. CHERTOFF: Did he make the statement24


“they’d have to tie me to a train and drag me along the1track before I sign a decree?”2

THE WITNESS: I -- he either said that or3something like it.4

MR. CHERTOFF: Let me come back now and talk5about the consent to search discussion. Did the State6Police present -- let me step back, he said the State7Police were concerned about the Maryland case?8

THE WITNESS: Right.9MR. CHERTOFF: And the Maryland case there10

had been a consent decree imposed, right?11THE WITNESS: Correct.12MR. CHERTOFF: Did the State Police explain -13

- well first of all, who did most of the talking at the14meeting?15

THE WITNESS: I don’t remember.16MR. CHERTOFF: Did Mr. Rover do a lot of17

talking?18THE WITNESS: I don’t think so, typically at19

those meetings and -- again I’ve told you most of -- of20my specific recollection, typically at those meetings,21you have -- you would have the Attorney General, you’d22have the Colonel, or you know any Division director,23and staff. And most -- most of the talking would be24


done between the principals, some people might -- might1chime in, George Rover probably would have talked some. 2I might have talked some, I don’t know.3

MR. CHERTOFF: All right. With respect to4the issue of the Maryland consent decree, did -- did5someone convey at the meeting the fact that the6Maryland Consent decree was ultimately generated7because the consent to search figures were -- showed a8disproportionate number of minorities being asked to9sign consent to search?10

THE WITNESS: Yeah, I think that was in the11newspaper article.12

MR. CHERTOFF: And did the State Police13indicate that they had done their own analysis of14consent to search data at various State Police15barracks, and had found that the numbers that were16prevalent in New Jersey with respect to minorities17being asked to consent to search were as bad, or worse18than the numbers in Maryland?19

THE WITNESS: I don’t recall the specific20discussion like that.21

MR. CHERTOFF: How about a general discussion22like that?23

THE WITNESS: I remember that they were24


concerned about the consent to search issue, and the1Maryland case, and a consent decree.2

MR. CHERTOFF: And was the concern expressed3because the factual data about consent to searches in4New Jersey looked to be comparable to those in5Maryland?6

THE WITNESS: Again I don’t remember that7specifically discussed, but I can’t say that it wasn’t.8

MR. CHERTOFF: Did you remember the State9Police actually giving numbers or percentages of10minorities being asked to consent to search at the11various New Jersey barracks?12

THE WITNESS: No.13MR. CHERTOFF: Did -- did -- did the people14

at the meeting, was there an understanding at the15meeting as far as you could determine that the consent16to search issue was different than the stop issue,17because the consent to search issue arises only with18respect to the pool of people who have already been19stopped, and therefore it’s -- it’s a matter of when20the police exercise their discretion within those21they’ve already stopped, as to ask for search or not22ask for a search?23

THE WITNESS: I remember that distinction24


being made, surrounding discussions of the issue, I1can’t tell you that I specifically remember it being2discussed at that meeting, but I think that’s -- that3was one of the issues that related as to why they were4different, because here -- you were dealing more with5the law enforcement officer, having a more close6contact with the person who was stopped, than just7seeing them on the -- roadway.8

MR. CHERTOFF: Was it also discussed that the9law enforcement officer in a sense had more discretion10about who to ask for a consent to search from, because11once they’re stopped, for a violation or whatever, then12whether to search or not to search is -- asked for a13consent or not to ask for a consent is up to the14officer? Was that discussed?15

THE WITNESS: I don’t remember that.16MR. CHERTOFF: Did -- was it -- there17

discussion in the meeting about the fact that there18would have been a review of stop data, and consent to19search data at the Moorestown State Police, as part of20the State Police analysis of what the facts were?21

THE WITNESS: As I said, I don’t remember any22specific numbers being discussed, but they -- I’m not23saying they weren’t.24


MR. CHERTOFF: Did the State Police convey in1substance the following point. At this point we are in2a very bad spot, through the Gloucester County case,3the Illinois State Police investigation and the4Maryland State Police study settlement, the Justice5Department has a very good understanding of how we6operate and what types of numbers they can get their7hands on to prove their position, was that in substance8that thought expressed at the meeting by the State9Police?10

THE WITNESS: I don’t think so.11MR. CHERTOFF: May --12THE WITNESS: And -- in -- you know I said13

before, that they were concerned about the issue, but I14don’t remember words like that being used.15

Now I don’t -- If you’re asking me did16someone read from a memo, like that.17

MR. CHERTOFF: I don’t mean read, but I mean18was this -- were these concepts generally expressed at19the meeting?20

THE WITNESS: They -- they were concerned21about the -- the stop -- the consent to search issue.22

MR. CHERTOFF: I guess what I’m driving at,23is this. Was the concern expressed just in the24


abstract, like we’re concerned abstractly this is a1difficult issue, or was the concern expressed in a2sense that we know there’s a problem statistically. And3that if they get into this, we’re not going to look. 4Was it the former or the latter?5

THE WITNESS: I think that it was -- to the6extent that I remember the discussion, I think that I7came away with the impression that it was the former8but they were worried about the latter.9

MR. CHERTOFF: Did they -- was there10something in the discussion that suggested that the11State Police had looked at the data, and that that was12a concern for them?13

THE WITNESS: I don’t remember that. I14really -- I’ve told you most of what I specifically15remember at that, but I -- I definitely have the16impression that this was an issue that was -- of17significant concern to them.18

MR. CHERTOFF: Now you said that there came a19point --20

THE WITNESS: And that’s -- that’s why there21-- I think was a discussion of consent decrees.22

MR. CHERTOFF: Now, wasn’t the -- wasn’t one23of their reasons that the meeting was called because24


George Rover had raised an issue about the Justice1Department wanting the consent to search data, and the2question was whether that -- and the state was going to3agree to disclose that data, or try to resist it?4

THE WITNESS: I believe so.5MR. CHERTOFF: And there -- and the reason to6

try to resist it would be because of a concern that if7that data were disclosed, it could lead to a consent8decree, correct?9

THE WITNESS: No the -- the -- issue was10whether it was expanding the scope of --of the inquiry11that they were making.12

MR. CHERTOFF: But was the particular concern13-- let me -- let me separate two things. I want to14separate the argument that would be made, against it,15which is that it’s an expansion from the underlying16concern.17

Or the underlying concern that if that18material were turned over could create a problem for19the State and could make -- create much more pressure20for a consent decree?21

MR. MILLER: Mr. Chertoff, whose concern, I22think maybe --23

MR. CHERTOFF: Expressed at the meeting by24


anybody at the meeting?1THE WITNESS: I would say that that was my --2

it was my understanding that that was the State Police3concern.4

MR. CHERTOFF: And -- and what was the --5what was the -- and in fact, if we go back to W-27,6which is the memo to you from George Rover that you7passed up to Peter Verniero and then ultimately he8said, maybe we should go to D.C.9

In that memo, didn’t he in fact say in10substance, that they anticipated -- that the consent to11search data was of interest because that to Justice,12because that had lead to the consent decree in13Maryland?14

THE WITNESS: Yeah, that’s what he says in15the memo.16

MR. CHERTOFF: Now you say -- at some point17you mean the Attorney General said to -- to Colonel18Williams, well do we have a problem with racial19profiling, and Colonel Williams said no.20

THE WITNESS: Right.21MR. CHERTOFF: Did the Attorney General or22

anyone else in the meeting ask the State Police if they23had done any factual or statistical analysis in the24


last year, to determine whether there was a problem?1THE WITNESS: Not that I recall, no.2MR. CHERTOFF: Did anybody up to this point3

in time, -- let me be a little more clear about the4time, from let’s say November of ‘96, when the Justice5Department first contacted you, up through this meeting6on May 20th of 1997, did anybody in the Attorney7General’s Office ever say, you know let’s -- do our own8examination of the facts, to find out whether apart9from what Justice wants, whether we think we have a10problem?11

THE WITNESS: I don’t think so.12MR. CHERTOFF: Did you know that the State13

Police was doing a review in -- were doing internal14audits and reviews of the stop and other related15statistics at the various trooper barracks in 1996 and161997?17

THE WITNESS: At that time?18MR. CHERTOFF: Yeah?19THE WITNESS: I don’t know.20MR. CHERTOFF: Did Mr. Fahy tell you did Jack21

Fahy tell you in ‘96 and or early ‘97 up until May2220th, that in fact there was information being23collected by Sergeant Gilbert, with respect to the24


statistics of stops and other kinds of law enforcement1activity at the various barracks?2

THE WITNESS: Is there a -- if there’s a3document that he sent to me that says that then --4

MR. CHERTOFF: I don’t have a specific5document I’m asking you whether -- it’s addressed --6I’m asking you whether it was conveyed to you orally or7in some other fashion? By -- by Fahy?8

THE WITNESS: I don’t have a specific9recollection, I mean --10

MR. CHERTOFF: You have a general11recollection?12

THE WITNESS: No.13MR. CHERTOFF: What about --14THE WITNESS: And I -- and see my problem is15

I don’t -- I don’t have a very good specific16recollection of -- of all this, and it’s perfectly17possible that somebody told me something that I’ve18forgotten, so -- I feel reluctant to say nobody told me19that, because somebody may have told me and I forgot.20

MR. CHERTOFF: Okay, well I’m -- I understand21-- you’re limited to what you can remember, let me try22to stimulate it this way, let’s talk about George23Rover, did George Rover up through this meeting in May24


convey to you his understanding that there was data1that had been collected by the State Police that would2reflect the actual composition of stops and other law3enforcement activity by the troopers at the various4barracks?5

THE WITNESS: I think at some point George6Rover told me that sort of the same thing that was in7the draft letter to Loretta King, that the numbers of8the stop numbers seemed to be about the same.9

MR. CHERTOFF: Well when you had this meeting10on May 20th, and the Attorney General asked Colonel11Williams do we have a profiling problem, did anybody at12the meeting say well how do you explain the fact that13the numbers in Moorestown still seem disproportionately14high even after we had lost a litigation regarding15that? That barracks?16

THE WITNESS: I don’t recall anyone saying17that.18

MR. CHERTOFF: I’m going -- I would like to19mark as -- can we have this marked --20

MR. WEBER: It’s previously marked as G-13.21MR. CHERTOFF: I forget, what’s been22

previously marked as G-13. And ask you if you have23ever seen this memorandum before?24


THE WITNESS: No. I -- it’s -- as far as I1know I received very few, if any State Police2documents, what I got was from George Rover, and3whatever I got would have most likely gone into my4file.5

MR. CHERTOFF: Did anybody communicate to you6at this meeting, or before your meeting that the7Maryland numbers regarding consent to searches, were8comparable to the New Jersey numbers?9

THE WITNESS: I don’t remember anyone telling10me that. But again, they could have. And so I’m not -11- you know I’m very uncomfortable to tell you that no12one told me that. When I don’t remember it.13

What I do remember is what I told you that14the State Police was very concerned about that issue.15

MR. CHERTOFF: Now, to the extent you were16told something significant, about State Police numbers17or activities relating to profiling, was it your18practice to convey that to the Attorney General? If it19was material?20

THE WITNESS: I would usually do that. It21would -- It might depend on when -- when and where I22was told and when and where I next saw him. You know23as -- as we’ve seen from going through the documents,24


when I got a significant document I would -- I would1send it in to him, and as I also said before, we spoke2every day, well not every day, but you know most days,3certainly when he and I were both in the office.4

MR. CHERTOFF: And --5THE WITNESS: So it would be -- it would be6

likely that if somebody told me something that I7thought would -- I thought was significant, I would8tell him.9

But I don’t have a specific recollection on10that issue.11

MR. CHERTOFF: At the May 20th meeting did12the Attorney General at some point say he could call --13or he would call Janet Reno, about this issue? In14terms of the request for the consent to search data?15

THE WITNESS: Gee, I don’t remember that.16MR. CHERTOFF: Did the Attorney General17

express the opinion that the Department of Justice in18Washington couldn’t have it both ways, both pressing19for drug interdiction but also complaining about racial20profiling?21

THE WITNESS: I don’t remember that either.22MR. CHERTOFF: At the -- at the May 20th23

meeting after Colonel Williams said there was no racial24


profiling problem, did anybody at the meeting including1the Attorney General, say let’s conduct our own review2of the actual statistics, at the barracks to see3whether we think there’s a problem or not?4

THE WITNESS: I don’t believe so.5MR. CHERTOFF: Did anybody at the meeting on6

May 20th express a concern that maybe this7investigation was part of some political -- political8thing, you know from the administration in Washington,9that come up in the meeting?10

THE WITNESS: Not that I recall.11MR. CHERTOFF: All right, let me --12THE WITNESS: And I think that was a -- as13

far as I recall, that was something that was an initial14reaction of the Attorney General, but I don’t recall15that ever -- sorry.16

MR. CHERTOFF: Excuse me go ahead.17THE WITNESS: I don’t recall that ever being18

discussed again.19MR. CHERTOFF: I’m fine, thanks. You don’t20

recall it being a serious issue?21THE WITNESS: No.22MR. CHERTOFF: Okay. I believe before, just23

a little bit, and show you --24


MR. WEBER: What’s been previously marked as1G-27.2

MR. CHERTOFF: This.3MR. WEBER: Yes.4MR. CHERTOFF: What was previously marked as5

G-27, and before I get to this, do you -- what was the6upshot of the May 20th meeting? Did anybody -- was any7action taken?8

THE WITNESS: Well. I know that in October I9wrote a memo to the Attorney General, saying the10Department of Justice has asked for the consent to11search data, and that I recommended and I think I said12Rover recommended that they be supplied.13

I don’t -- I don’t particularly remember a14decision being made at this issue, but I have sort of a15general recollection that the -- that either one of two16things happened, either it was sort of tabled until17they asked again, or it was decided that if they ask18again they’ll get the documents.19

Whether that was specifically said at this20meeting or not, I don’t remember, but that is my best21sort of sense impression of -- of what happened,22certainly by the time they did ask again, the documents23I think -- I mean there was some -- there was a cover24


letter that got massaged and -- and I believe that the1documents were then sent down.2

MR. CHERTOFF: Would you agree with me that3as of the May 20th meeting the -- fact that there was4at least a serious issue concerning consent to search5statistics had crystalized, with the people at the6meeting?7

THE WITNESS: Well I would agree with you8that the issue of whether this should be provided to9the Justice Department was on the table at that10meeting, and I would agree with you that my11recollection as to the State Police were very concerned12about turning it over.13

MR. CHERTOFF: And was there anybody who14asked specifically why they were concerned about15turning it over?16

THE WITNESS: I don’t -- I don’t recall that17discussion.18

MR. CHERTOFF: Did they explain --19THE WITNESS: I mean I was under the20

impression that they didn’t want to turn it over21because they didn’t think it would be particularly22favorable to them. And --23

MR. CHERTOFF: Was that in a sense conveyed--24


THE WITNESS: So I -- I don’t -- you know1what I don’t remember which you’ve been trying to poke2me, to -- to get me to refresh my recollection about,3I’m afraid without success, is whether specific numbers4were discussed at that meeting. But certainly I had5the -- I had the clear impression that State Police6didn’t want to provide that information. And that the7reason they didn’t want to provide it was they didn’t8think it was going to be helpful to them.9

And they were worried about whether there was10going to be a consent decree.11

MR. CHERTOFF: And did the Attorney General12at any point in this meeting, say well look, if there’s13a problem here, putting aside how we deal with the14Department of Justice what do we have to do to find out15what it is, and here are the steps we need to take to16investigate it, and fix it?17

THE WITNESS: I don’t remember that statement18being made, it -- a lot of meetings there was always19discussion at many meetings there was a discussion20about you know the State Police making efforts to make21sure that they were looking at what the troopers were22doing out on the road.23

And I think that from time to time Jack --24


not Jack Fahy George Rover would tell me about1something that -- that they were doing, and I can’t2recall a specific.3

MR. CHERTOFF: Right --4THE WITNESS: But I don’t remember it being5

discussed the way you asked me in that meeting.6MR. CHERTOFF: At -- in general though,7

during this period, at meetings with the Attorney8General, was there discussion about the fact that this9was a real problem that had to be addressed and fixed?10

THE WITNESS: What?11MR. CHERTOFF: Racial profiling? And the12

statistical anomalies?13THE WITNESS: I think that the consensus was14

that it was not clear that it was a -- a significant15event, that it was a -- that there was a pattern or a16practice of racial profiling going on, by the State17Police, but I think as I said throughout this period,18there was always the concern that there were individual19troopers who were not doing what they were supposed to20do.21

MR. CHERTOFF: Now, take a look at G-27, this22is a memo to Peter Verniero from you, with your23initials, correct?24


THE WITNESS: Correct.1MR. CHERTOFF: Dated July 29?2THE WITNESS: Right.3MR. CHERTOFF: 1997. And it says, “The4

attached is a report prepared by State Police in5connection with an allegation from minority troopers at6the Moorestown station, that there was racial profiling7by majority troopers, the existence of this document8was recently disclosed by State Police. It appears to9be within the ambit of the documents requested by USDOJ10and may have to be produced to them.” Do you know when11that attached -- the attached document is a --12September 24th, 1996 report from a Lieutenant Hinkle,13which include some pie charts? And some other reports,14do you remember this memo?15

THE WITNESS: Yeah.16MR. CHERTOFF: Do you remember the attachment17

from Lieutenant Hinkle?18THE WITNESS: Well I remember getting this19

memo. And I think -- I think I got it from George20Rover, because I don’t know else, who else I would have21gotten it from.22

MR. CHERTOFF: And when you say this memo,23you mean patrol issues, concerns at Moorestown Station?24


THE WITNESS: Right.1MR. CHERTOFF: Right.2THE WITNESS: And that’s the attachment to G-3

27.4MR. CHERTOFF: Right, I just want to make5

sure we know exactly what you got with the attachment,6or you got from Rover. You got this -- this two page7document, from -- to Captain Touw from Lieutenant8Hinkle?9

THE WITNESS: Oh, if you’re going to ask me10what -- whether I specifically remember that all of11these attachments were part of them.12

MR. CHERTOFF: You don’t know?13THE WITNESS: I don’t know.14MR. CHERTOFF: But you remember at least15

getting the initial --16THE WITNESS: I assume that somewhere is the17

original of my memo to the Attorney General, and -- and18that you could tell from that.19

MR. CHERTOFF: We can only tell you based on20the Bates numbers, which you can see at the bottom,21unless they’ve been produced, but let me do this, it’s22--23

THE WITNESS: The problem, I’m not saying24


that I didn’t. I want you to understand that, the1problem with Bates numbers is you know everything in a2file gets stamped with a Bates number, and you can’t3always tell whether it’s one document or three.4

MR. CHERTOFF: Well let’s be conservative5then, you’ll agree with me that the actual report6entitled patrol issues concerns of the Moorestown7Station was in fact -- you received that?8

THE WITNESS: Right. And -- and as I said,9I’m not in a position to say -- to say that I didn’t10see the rest of it, I’m just -- you seem to be wanting11to go through and say did you see this, did you see12this.13

MR. CHERTOFF: Yeah, and I also want to be --14THE WITNESS: And that’s what I don’t15

remember.16MR. CHERTOFF: And I want to be fair to you17

and not tag you with documents that might not have been18--19

MR. WEBER: I think this is a better copy.20MR. CHERTOFF: Oh, okay.21MR. MILLER: Can I see that copy for a22

second. Because I think there may have been a copying23error on this one.24


MR. CHERTOFF: All right. Let’s mark --let’s1mark this one then as --2

MR. WEBER: Well no I’ll just -- 3MR. CHERTOFF: Mark, no we mark it as -- 4MR. WEBER: G-27.5MR. CHERTOFF: Well you want to mark it as W6

whatever.7MR. WEBER: Why don’t we mark it as --8MR. CHERTOFF: We’ll mark W-30, this is a9

better copy of it. And again, at least -- let’s verify10that you recall that that you received the -- memo11saying patrol issues concerns in Moorestown Station?12

THE WITNESS: Right.13MR. CHERTOFF: Now, this memo indicates that14

minority troopers were continuing to complain about15racial profiling? Including a recent lawsuit?16

THE WITNESS: Right.17MR. CHERTOFF: Did you have a discussion with18

the Attorney General about it?19THE WITNESS: Well there was -- it’s a recent20

lawsuit, are you talking about the first sentence in21the second paragraph?22

MR. CHERTOFF: Well both together yes, and as23well as the fact that the -- it indicates that at least24


in September of ‘96 there were complaints.1THE WITNESS: There was -- there were2

complaints by minority troopers of Moorestown that --3that there was racial profiling by majority troopers4and there was a complaint by a lawsuit by a minority5trooper saying that -- it’s not clear to me whether6it’s the same minority trooper was disciplined in7retaliation for supporting the allegation.8

MR. CHERTOFF: Now, did you were aware of the9fact that the Moorestown Station was the same station10which was the subject of the Soto litigation?11

THE WITNESS: I think so yes.12MR. CHERTOFF: Did you have any conversation13

with Attorney General Verniero about this memo after14you sent it up to him?15

THE WITNESS: I don’t remember a conversation16it’s possible that I did.17

MR. CHERTOFF: Did you read the memo?18THE WITNESS: I believe I did.19MR. CHERTOFF: Did you remember noting the20

fact that the percentage of minorities being stopped --21as contained on the first page, ran about one third?22

THE WITNESS: Well it says that the23percentage of minority stop by non-minority troopers24


was 34.3 percent, and the percent stopped by minority1troopers was 33.3 percent, which would be one third. 2So they’re both roughly one third.3

MR. CHERTOFF: Was there any discussion about4the significance of this memo, with anybody in the5Attorney General’s office or with Mr. Rover?6

THE WITNESS: You know I hate to sound like7I’m a real moron, but -- and I -- you’re beginning to8do a great job of making me feel that way.9

MR. CHERTOFF: It’s not what I’m looking to10do.11

THE WITNESS: But --12MR. CHERTOFF: So what’ the question.13THE WITNESS: I don’t remember any such14

conversation but again there could have been.15MR. CHERTOFF: Let me show you the last page16

of the document, OAG998. Do you remember seeing this17document, it’s -- it’s again dated April 15th, 1996 at18the bottom, it talks about consent searches, did you19see this -- was this part of what you passed up in the20July 1997 interoffice memorandum to the Attorney21General?22

THE WITNESS: If in fact yes if this is one23complete document.24


MR. CHERTOFF: Do you remember reading that1page?2

THE WITNESS: I don’t have a specific3recollection of that page.4

MR. CHERTOFF: Let me take a one minute5break, can we just talk about that for a second.6

And I’m -- then I’m almost done. I’ve got --7(Recess)8

MR. CHERTOFF: Back on the record. Back on9the record. As a consequence of sending this memo up10to Attorney General Verniero, do you remember any11follow up or anything that happened as a consequence of12this?13

MR. WEBER: That’s W-30.14MR. CHERTOFF: W-30.15THE WITNESS: No. Which again is not to say16

that there wasn’t it’s just that I don’t remember it.17MR. CHERTOFF: All right, let me show you --18

W-31, which I think you made a bleak reference to19earlier, it’s a memo to Peter Verniero, from you, dated20October 31, and it’s got your initials on it?21

THE WITNESS: Right.22MR. CHERTOFF: Do you recognize this?23THE WITNESS: Yes.24


MR. CHERTOFF: It actually has two draft1documents -- two copies of the same draft letter2attached, all right, it says, “the Department of3justice has now requested copies of consent to search4warrants for the stations on the southern end of the5Turnpike, at which they’ve been looking. These forms6have no direct relevance to stops, since they reflect7post stop activities. However they do indicate the8reason for the initial stop, and for this reason I do9not believe we can resist their production. However,10DAG Rover and I want to go on record we are not11consenting to any broadening of the scope of the12inquiry. I attach a draft which I’ve prepared for that13purpose, although DAG Rover would be vociferous in14stating a position, I recommend that he made it in a15more subtle manner, expressed in the attached. Please16advise whether this form is acceptable to you.”17

All right, and then -- did you actually draft18the memo here?19

THE WITNESS: The cover memo?20MR. CHERTOFF: No, the -- the draft letter?21THE WITNESS: No, George Rover would have22

done the -- there was one that was done by George23Rover, and then there was one that I -- made changes24


to, and I would assume --1MR. CHERTOFF: Do you know which -- there’s2

one dated October 31 and one dated November --3THE WITNESS: I would assume that the later4

one is the one that I did.5MR. CHERTOFF: Now.6THE WITNESS: But let me just make sure. 7

Yeah, I believe -- the one that has my handwriting on8it, OAG1048, and OAG1049, is my version of the letter,9and the what I did to highlight for the Attorney10General, was where I made the changes.11

MR. CHERTOFF: Now, I take it the reason you12believed you had to turn these documents over, was13because even -- with an inquiry focused on stops, the14documents had pertinent information and therefore would15be within the scope of the inquiry? Correct?16

THE WITNESS: I was generally of the view17that we should be turning over whatever they wanted,18within -- within reason.19

MR. CHERTOFF: But --20THE WITNESS: And -- and I thought that these21

documents should be turned over.22MR. CHERTOFF: But the --23THE WITNESS: Because -- because they do I24


think it says somewhere have some information about1race.2

MR. CHERTOFF: And about the initial stop? 3That’s what the letter says, it says the last4paragraph, “they do contain some ancillary information5related to inquiry. And articulation for the initial6stop.”7

THE WITNESS: Right.8MR. CHERTOFF: But it says here, “DAG Rover9

and I want to go on record, we are not consenting to10any broadening of the scope of the inquiry.” Was the11broadening of the scope to which you were objecting a12broadening to consider the statistics of consent to13searches?14

THE WITNESS: Yes.15MR. CHERTOFF: And that was because of the16

understanding that consent to searches would open up an17alternative avenue for potentially imposing a consent18decree?19

THE WITNESS: No.20MR. CHERTOFF: Well what was the reason --21THE WITNESS: I think -- I think to some22

extent it’s -- it’s over lawyering. When I used to23answer interrogatories, I would object, and then I24


would say notwithstanding the objection, here’s the1answer.2

And you know I think we -- we felt that they3had gone beyond what they originally said, and so I4think George suggested and I didn’t disagree with him,5as I -- you know I adopted his suggestion, and6supported it in the cover memo that we should make that7point, but I -- I suggested that we do it in a more8subdued manner.9

MR. CHERTOFF: Did the Attorney General10respond to this?11

THE WITNESS: Do you have by any chance the12letter that was actually sent?13

MR. CHERTOFF: I may actually ask -- already14get there.15

We’re going to mark that as W-32.16THE WITNESS: Yeah, the Attorney General must17

have authorized the version that I suggested.18MR. CHERTOFF: Because it would not have been19

sent out under Office of Attorney General letterhead20signed by Mr. Rover, without the Attorney General’s21approval, correct?22

THE WITNESS: Well, I don’t know about the23letterhead part of it, if I -- you know I was asking24


the Attorney General -- I was recommending to the1Attorney General that we send out the version that I2preferred and I asked him to advise whether it was3acceptable and he must have said yes. And it was sent4out in my version.5

MR. CHERTOFF: Now you actually left to6become a Judge in January of 1998?7

THE WITNESS: Correct.8MR. CHERTOFF: And I assume that the process9

of being nominated and began some time before that10time?11

THE WITNESS: Yes.12MR. CHERTOFF: When did -- 13THE WITNESS: But there was something else14

going on. That in early November the Governor15indicated that she would nominate me, at this -- at16about the same time, and I can’t tell you the exact17dates, my father was diagnosed with cancer of the18esophagus, and he had to have radiation treatments, so19in addition to you know filling out the forms and I20think I had to have a four -- another four way and I21had to go to the Bar Association and all that stuff, I22was taking some time off, and I don’t -- I don’t23remember exactly how much to go and drive my father to24


the hospital.1MR. CHERTOFF: So is it fair to say that from2

about shortly after this last exhibit we’ve looked at3which is late October, of 1997 you -- your4participation in this matter really essentially ended?5

THE WITNESS: Yes. Certainly from my review6of what was my file, this document that we were just7looking at is the last document in that file.8

MR. CHERTOFF: Ummm.9THE WITNESS: I should say not the final10

version, but the draft.11MR. CHERTOFF: Looking back over the period12

of 1997 and going back really to November 1996, so the13full year that you were involved in this from the time14that you heard from the Department of Justice in15November of 96, until basically the beginning of16November of 1997, during that period of time is it fair17to say that at some point, you developed an18understanding that the State Police were concerned19about what the actual statistics were, with respect to20stops, and/or consent to searches, by troopers on the21highway?22

THE WITNESS: I think I developed an23understanding as I told you when we were talking about24


the May meeting, that the State Police was concerned1that the consent to search data was not helpful to2them, and could result in the Justice Department3wanting or requesting a -- a consent decree. I don’t4know that we necessarily took the view that the data5itself that -- I mean generally our position was that -6- and I think we took that position in the brief, that7data is not dispositive because there can be a lot of8reasons why you have a particular kind of data, and9that you really need to be looking more at a stop by10stop basis.11

MR. CHERTOFF: But during this year period,12did anybody in the office of the Attorney General, to13your knowledge until November of 1997, suggest that the14Attorney General furnish whatever information it had to15form the basis for any of its concerns to the Attorney16General’s Office, to look at and analyze or to review?17

MR. MILLER: Mr. Chertoff I think there’s a18mistake in your question. You said did anyone suggest19that the Attorney General furnish to the Attorney20General --21

MR. CHERTOFF: I’m sorry. Let me -- if there22was let me rephrase it, during the period of time up23from November ‘96 up until November ‘97, did anybody24


from the Attorney General’s office suggest that the1State Police furnish to the Attorney General any2analysis, data, or statistics that they had, regarding3stops, or consents to search?4

THE WITNESS: I’m not personally aware of any5such requests, but obviously there are a lot of people6that I’m not with all the time.7

MR. CHERTOFF: Certainly nothing came through8you? During that period requested?9

THE WITNESS: Correct.10MR. CHERTOFF: And with respect to exhibit W-11

30, which is a July 29th memo attaching reports from12the State Police you remember no response from the13Attorney General to you with respect to that?14

THE WITNESS: I’m not saying there wasn’t a15response, what I’m saying is, I don’t remember any16conversation about that.17

MR. CHERTOFF: And you -- having submitted it18to the Attorney General with a memo, your expectation19based on the routine practice of the organization in20that period of time, is that the Attorney General would21have received it?22

THE WITNESS: Yes, as I said, I would -- I23would expect that if I put a memo in the Attorney24


General’s in basket, that he wouldn’t -- that he would1get it, I can’t -- I can’t say, you know I’m not a2guarantor that he got every piece of paper that was put3in his in basket, but certainly that was my4expectation.5

MR. CHERTOFF: Again during the period6November ‘96 up until the beginning of November 1997,7to your knowledge did anybody in the Attorney General’s8office ask for a review or examination to be commenced9by the State Police or by anybody else, concerning the10actual degree to which there was racial profiling in11the State Police?12

THE WITNESS: Would you ask me that question13again?14

MR. CHERTOFF: From the beginning of 19 --15November 1996 until the beginning of November 1997, to16your knowledge, did anybody in the office of the17Attorney General, request that any outside agency, or18inside agency of the Department of Law and Public19Safety, or the State Police themselves, conduct a20review to determine the prevalence of racial profiling21in the State Police?22

THE WITNESS: Other than that we were23cooperating with the Justice Department, which was24


doing that. I’m not aware of any such request.1And I mean obviously we didn’t ask the2

Justice Department, they approached us, but we would --3you know we certainly knew that they were doing that.4

MS. GLADING: In reference to W-30, the July529th memo from you to Mr. Verniero, it indicates that6the attached document appears to be -- you indicate7appears to be within the ambit of documents requested8by USDOJ and may have to be produced for them, DAG9Rover is looking further into that issue, do you10recollect any resolution to the question that you11raised about production to the Department of Justice?12

THE WITNESS: No, if -- could I have the13document back.14

MR. CHERTOFF: Sure.15THE WITNESS: If you look -- is there a16

better copy.17MR. CHERTOFF: Here’s the best copy I have18

here.19THE WITNESS: If you look -- 20MR. WEBER: Here, here’s the official W-30.21THE WITNESS: All right. This isn’t any22

help, I’ll be here, if you look at the top of W-30, the23right hand I think at the top where it has a date, I24


think that I said that I -- I wanted it tickled, but I1don’t remember what -- I don’t remember any more than2that.3

MS. GLADING: Do you recall if there was --4there were any production of statistics to the5Department of Justice during this time period?6

MR. MILLER: Any statistics or these? I just7want to make sure he understands your question.8

MS. GLADING: Any statistics. By statistics9I mean compilations or analyses of stop data --10

THE WITNESS: Not that I recall.11MS. GLADING: -- or consent data. Okay.12THE WITNESS: I mean -- I wasn’t necessarily13

seeing everything that went to the Department of14Justice. But my understanding was always that that15what was being sent was you know they would ask for a16logs, or -- or copies of documents and that -- that’s17what they were getting.18

But I -- I don’t know from my own personal19information from my own personal knowledge everything20that was given to them, so I can’t answer that21question.22

MS. GLADING: Thank you.23MR. CHERTOFF: Since this investigation began24


in or just a -- the Senate announced that it was going1to commence this investigation I guess last year, other2than talking to people like you Mr. Miller of -- or3other people representing your department, has anybody4else contacted you to talk about this or -- racial5profiling issue and your possible testimony?6

THE WITNESS: Well I’ve talked to people who7are on the witness list.8

MR. CHERTOFF: Such as?9THE WITNESS: Well I work with Judge DeVesa,10

and I think we discussed you know the fact that we were11on the witness list, and he may have asked me what I12remembered about the memo that I sent him.13

MR. CHERTOFF: And --14THE WITNESS: I said I didn’t. I talked to15

Jim Ciancia a lot, because he and I are friends. And16we just talked about the fact that we were both going17to be witnesses. And -- and I talked to Justice18Verniero from time to time.19

MR. CHERTOFF: Have you talked to Justice20Verniero about this post testimony or the fact that21this investigation is going on?22

THE WITNESS: I haven’t spoken to him about23my proposed testimony other than I think I told him24


that I got your letter. And that I was going to be1deposed.2

MR. CHERTOFF: Did you just-- I’m sorry, go3ahead, finish.4

THE WITNESS: And I from time to time talk to5him about the fact that the -- you know the Judiciary6was Committee was looking into it.7

MR. CHERTOFF: Can you tell -- with respect8to conversations you’ve had with him, regarding the9Judiciary Committee investigation of profiling, can you10tell us what the conversations were?11

THE WITNESS: They were sort of general12conversations about you know, when timing and -- what13form it was going to take, and what -- I guess maybe14what -- what the issues were.15

MR. CHERTOFF: Did he ask you about16particular documents?17

THE WITNESS: I don’t think he did.18MR. CHERTOFF: Did he ask you about meetings?19THE WITNESS: I know we had one conversation20

where he asked me -- he said something about the --21railroad statement, and I said that I -- I remembered22him saying something like that.23

MR. CHERTOFF: Can you tell us when that24


conversation was?1THE WITNESS: I would say it was probably in2

the year 2000.3MR. CHERTOFF: But after this investigation4

was announced?5THE WITNESS: Yes.6MR. CHERTOFF: Was it --7THE WITNESS: Well. When was the8

investigation announced?9MR. CHERTOFF: I think it would have been10

approximately September of 2000.11THE WITNESS: I would be pretty sure that it12

was after that.13MR. CHERTOFF: And how did the conversation14

come up?15THE WITNESS: He said to me something about -16

- I think he said something to me about not17remembering, having said that, and I said, you know I18think my recollection is that you did, his reaction was19like -- you know, gee I didn’t remember that, but you20do.21

MR. CHERTOFF: Well, let me -- let me go at22it this way, did he -- you have an idea of23approximately when this was, around Thanksgiving or24


Christmas, or was it after there was newspaper --1there’s a newspaper report about the content of the2documents that had been released by the --3

THE WITNESS: I would say it was probably4after the newspaper reports.5

MR. CHERTOFF: And did he call you or did6Justice Verniero call you up?7

THE WITNESS: I don’t remember whether he8called me or I called him.9

MR. CHERTOFF: And who opened up the10discussion with respect to the issue of the documents?11

THE WITNESS: I don’t recall.12MR. CHERTOFF: And as best as you can13

remember, what was said concerning the documents or the14investigation, in this conversation. I assume it was15telephone rather than in person?16

THE WITNESS: Yeah.17MR. CHERTOFF: What was said in the telephone18

conversation about the documents and/or the19investigation?20

THE WITNESS: Well it wasn’t -- there wasn’t21just one telephone conversation, he and I speak to each22other. And you know in the course of talking about any23number of things, we probably you know said well I see24


the documents are going to be released or the documents1were released.2

MR. CHERTOFF: And I’m -- obviously I don’t3want to -- I’m not interested in conversations about4other matters, except relating to the investigation on5profiling, but with respect to this particular issue,6this comment about the consent decree, the conversation7followed upon the release of documents, making8reference to that supposed statement?9

THE WITNESS: I believe.10MR. CHERTOFF: And -- and one of you at some11

point raised the issue about that release of documents,12in the phone conversation?13

THE WITNESS: Yeah.14MR. CHERTOFF: What did he say about it, and15

what did you say?16THE WITNESS: About that conversation?17MR. CHERTOFF: Yeah, during -- in that18

conversation?19THE WITNESS: I -- about the -- the20

statement?21MR. CHERTOFF: Yeah.22THE WITNESS: I think he said to me something23

like there was something in one of the documents --24


somebody wrote on one of the documents whatever it is1that’s written on that document, I don’t remember2saying that, and I say gee I -- I do remember that you3said something like that.4

MR. CHERTOFF: And what did he say?5THE WITNESS: He said I -- I hadn’t6

remembered that.7MR. CHERTOFF: And what else was said in that8

conversation concerning either the documents or the9investigation?10

THE WITNESS: I -- he and I speak on a11regular basis, so I can’t you know remember one12combination -- one conversation over another. He --13you know we -- sometimes we talk -- we would talk about14the documents were going to be released, you know when15-- when are they going to -- just the timing whatever16was in the paper.17

MR. CHERTOFF: All right, without trying to18break it down then, from the period of time since the19investigation was announced up to the present, what20subjects have you discussed with Justice Verniero at21any point in time concerning the investigation you know22on racial profiling, and/or the documents, now we’ve23talked about the issue of this one comment, were there24


other issues that were -- you discussed with him?1THE WITNESS: We discussed the release of the2

documents, we discussed who you know, who was going t3be a witness, when were the hearings going to be, what4were they going to be you know what was the format.5

I don’t recall any specific discussion of6other documents, but there may have been.7

MR. CHERTOFF: Did he ask you about your8memory of any meetings other than what you’ve described9in terms of this meeting where this comment was made?10

THE WITNESS: I don’t think so, but I’m not11sure.12

MR. CHERTOFF: Did he ask you about how your13recollection of conversations you had with him, during141996 and 1997 as it related to racial profiling?15

THE WITNESS: I don’t think so, we talked16more you know of -- how are you doing, you know, that17sort of thing, than we discussed the details. I think18we were both sort of somewhat or at least I was19reluctant to talk about details, because I guess maybe20I anticipated that you would be asking me this21question.22

You know I -- I was asking you know how are23you doing, and -- and stuff like that.24


MR. CHERTOFF: Did Justice --1THE WITNESS: I can’t say that we didn’t2

discuss anything else.3MR. CHERTOFF: Did Justice Verniero discuss4

his recollection of certain events as it related to5racial profiling?6

THE WITNESS: The only specific one I7remember is he -- he told me he didn’t remember making8the railroad track statement.9

MR. CHERTOFF: Did Justice Verniero discuss10his 1999 testimony before the Judiciary Committee?11

As it relates to either racial profiling or12his confirmation?13

THE WITNESS: Well he -- I think we discussed14the fact that one of the issues that was I guess on the15table, is -- is the -- the issue of you know whether --16of his testimony. And I mean my understanding is17that’s one of the things that’s being looked at.18

MR. CHERTOFF: And what did he say about19that?20

THE WITNESS: What did I say?21MR. CHERTOFF: What did he say about that?22THE WITNESS: I don’t think he said anything23

particular because I wasn’t there, so I don’t know what24


he said, you know so it would have been hard for us to1discuss it other than in general terms, that that’s you2know one of the issues.3

MR. CHERTOFF: Did he discuss with you your4understanding, you have what point the issue of racial5profiling or the problems with racial profiling6crystalized, for the office of the Attorney General?7

THE WITNESS: Well I know that he -- I know8that that statement was in the papers, so we might have9discussed it in the sense of he felt that in terms of10there being concerns that the -- the incident that took11place when the -- the investigation of the shooting12made him look at it in a different light.13

MR. CHERTOFF: I’m sorry could you explain a14little bit more about what you mean by that? By that15statement? What his comment was?16

THE WITNESS: I think his comment was that17the -- the information that was beginning to be18gathered in the investigation of the shooting,19particularly the fact that it appeared that some20troopers were not -- were mis-recording race, made him21think about it in a different light than he had up to22now.23

MR. CHERTOFF: And how did he come to make24


that -- that conversation -- how did he come to bring1up that observation to you in the conversation?2

THE WITNESS: I don’t remember exactly how it3came up. And we talk on a regular basis, so I don’t --4I don’t remember particularly how it came up.5

MR. CHERTOFF: Did he -- did he say something6in substance and I’m not exactly -- did he say7something in substance like well one of the questions8is, when did I first really become aware there’s a9problem, and really I first became aware only after10this you know facts turned up because of our11investigation of the shooting, is that what he told12you? In substance?13

THE WITNESS: I told you what -- he told me,14and I think -- I’d rather stick with my -- what I said,15rather than your --16

MR. CHERTOFF: Characterization?17THE WITNESS: -- characterization.18MR. CHERTOFF: Well then let me ask you this,19

did you ask him for -- did you -- in the conversation20did you ask him when did he first really focus on this,21or did he volunteer this to you?22

THE WITNESS: Oh, I don’t remember that. You23know I -- my -- my focus in speaking to him was -- was24


someone with whom I’m friendly, and who is you know,1you know the subject of a lot of press, and my -- my2focus was you know, how are you, that sort of thing.3

We -- we didn’t -- you know he wasn’t calling4me up to say well what about this, what about that sort5of thing.6

MR. CHERTOFF: Did he ask you --7THE WITNESS: It wouldn’t -- you know there8

was a lot of press about it, and so it would be9something that we would on occasion discuss, if an10article had come out.11

MR. CHERTOFF: Did he ask you what your12recollection was about the point at which you focused13on certain issues as being problems?14

THE WITNESS: No.15MR. CHERTOFF: Other than what you’ve16

described, what else can you recall discussing with him17since let’s say September of last year, concerning the18investigation and -- and upcoming hearings?19

THE WITNESS: I think that’s about it. I20mean we -- we discussed a lot about how he was feeling.21

MR. CHERTOFF: When is the last time you22talked to him about racial profiling and -- upcoming23hearings?24


THE WITNESS: I would have -- well I would1have talked to him probably a couple of weeks ago, and2at one point I think I would have said that I was3having my deposition taken. And I don’t know that we4discussed it much more than that.5

MR. CHERTOFF: Did he ask you to tell him6what -- occurred at the deposition?7

THE WITNESS: No.8MR. CHERTOFF: Did he convey to you any9

information he had about any -- any interviews of other10witnesses, or any depositions of any other witnesses?11

THE WITNESS: No.12MR. CHERTOFF: Do you know whether -- did he13

indicate to you that he had spoken to other witnesses? 14That were on the list of witnesses?15

THE WITNESS: No.16MR. CHERTOFF: Do you know from any other17

source, whether he spoken to other witnesses, besides18yourself?19

THE WITNESS: No.20MS. GLADING: A couple of quick questions.21THE WITNESS: Sure.22MS. GLADING: In -- I don’t have the document23

with me, but in June of -- of 1997, June 17th, George24


Rover sent radio logs to the Department of Justice, and1this apparently began the sending of materials to2Justice that they had requested.3

Do you recall -- did you have conversations4with George Rover or to your knowledge did anyone else5have conversations with him about the way in which he6ought to provide that information?7

THE WITNESS: Yeah, when he -- when he was8first sort of signed up by -- through my suggestion, to9do that, I had a conversation with him that what the10gist of which was that you know it was going to be his11-- his responsibility to deal with the representatives12of the Justice Department to find out what it is they13wanted specifically, to deal with State Police to find14out what was available and to facilitate the transfer15of that information to the Justice Department.16

I told him that I wanted to be aware of17anything of you know of any issues that were of18significance, that’s why you see a lot of the memos19that we’ve been talking about. Because particularly at20the beginning, the Attorney General wanted to be21apprized of -- of what was going on.22

MS. GLADING: I’m asking specifically about23the period from the middle of June 1997, onward, when24


the state began producing documents, and Mr. Chertoff1asked earlier about the -- the discussion and the2internal debate over the consent document, the consent3to search forms. But was there any direction given to4Mr. Rover by you or by anyone else to your knowledge of5how to produce those documents to Justice, was he told6to produce them as he -- give them everything he gets7as he gets it?8

THE WITNESS: I -- I -- when I first talked9to him, I said something to him that he interpreted as10he should not -- he should -- I don’t know that he -- I11don’t know that this is the word that he used, but I’ll12use the word stall.13

MS. GLADING: Beg your pardon?14THE WITNESS: Stall.15MS. GLADING: When you first --16THE WITNESS: When I -- when I first talked17

to him I said something to him and I think what I said18to him was that he should work with the Justice19Department, that he didn’t -- you know when they asked20for something, he didn’t have to drop everything that21they were -- to you know get it right away, that he22could -- take the time necessary and I think I conveyed23that information or that subject in artfully.24


Because at some point I became aware of the1fact that he thought that I wanted him to unduly delay. 2And I told him -- and I don’t remember exactly when it3is, it was some time in the spring, I think.4

I told him that that -- that was not what he5was supposed to do, what he was supposed to be doing6was you know, when they asked for something, he was to7-- to get it, he didn’t have to get it instantaneously,8but he was not to -- you know unduly delay, or do9anything that would be of that nature. That what he10was supposed to do was get the stuff and send it down11to the Justice Department, that he again he didn’t have12-- you know he had other responsibilities, but that he13was to be responsive to the Justice Department.14

MS. GLADING: Thank you. That’s all I have.15MR. CHERTOFF: Okay. Ten minutes after four,16

I think we’re done.17THE CLERK: Off the record.18

* * * * * * *19CERTIFICATION20

21I, JAMES V. BOWEN, of J & J COURT22

TRANSCRIBERS, INC., a Notary Public and Electronic23Sound Recording operator, do hereby certify that prior24


to the commencement of the examination, the witness was1duly sworn by me to testify to the truth, the whole2truth and nothing but the truth.3

4I DO HEREBY CERTIFY that the foregoing is a5

true and accurate transcript of the testimony as taken6by electronic sound recording before me at the time,7place and on the date hereinbefore set forth.8

9I DO HEREBY CERTIFY that I am neither a10

relative, nor employee, nor attorney nor counsel of any11of the parties to this action, and that I am neither a12relative nor employee of such attorney or counsel, and13that I am not financially interested in the action.14

15DATED: _____________________________16

Notary Public of State of NJ1718

_____________________________19Patricia C. Dupre, AOC #43520

Documents

NEW JERSEY STATE LEGISLATURE OFFICE OF LEGISLATIVE ... · JAMES V. BOWEN, Notary Public of the State of New Jersey, for the Offices of J & J COURT TRANSCRIBERS, INC., a ... JEFFREY