NEW JERSEY STATE LEGISLATURE

OFFICE OF LEGISLATIVE SERVICES



IN RE: ) TRANSCRIPT

) OF

SENATE JUDICIARY ) ELECTRONICALLY

COMMITTEE INVESTIGATION ) RECORDED TESTIMONY

HEARINGS )



Place: Office of Legislative

Services

State House Annex

Trenton, NJ 08625



Date: March 20, 2001



Time: 10:25 a.m.



MEMBERS PRESENT:



SENATOR WILLIAM L. GORMLEY, CHAIRMAN

SENATOR JAMES CAFIERO, VICE-CHAIRMAN

SENATOR JOHN O. BENNETT

SENATOR LOUIS F. KOSCO

SENATOR ROBERT J. MARTIN

SENATOR JOHN J. MATHEUSSEN

SENATOR NORMAN M. ROBERTSON

SENATOR JOHN A. GIRGENTI

SENATOR JOHN A. LYNCH

SENATOR EDWARD T. O'CONNOR, JR.

SENATOR RAYMOND J. ZANE

SENATOR GARRY J. FURNARI



ALSO PRESENT:



Senate Democratic Staff

By: JO ASTRID GLADING, ESQ.



Senate Republican Staff

By: CHRISTINE SHIPLEY, ESQ.





Transcribers, Patricia A. Kontura

Karen Hartmann,

Beatrice Creamer and

Patricia DuPre

J&J COURT TRANSCRIBERS, INC.

268 Evergreen Avenue

Hamilton, NJ 08619

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ALSO PRESENT: (Continued)



Latham and Watkins

By: MICHAEL CHERTOFF, ESQ.

SCOTT LOUIS WEBER, ESQ.



Office of Legislative Services

By: JOHN TUMULTY, OLS Aide





































SENATOR GORMLEY: We reconvene the hearing.

The first two witnesses for today are John Fahy and George Rover. Would you please stand and raise your right hand.

J O H N F A H Y, SWORN

G E O R G E R O V E R, SWORN

SENATOR GORMLEY: Be seated.

Mr. Chertoff.

MR. CHERTOFF: Thank you, Mr. Chairman.

Just for the record, Mr. Fahy and Mr. Rover, could you tell us if you're represented here by the Attorney General's Office?

MR. FAHY: Yes, sir, counsel has been provided for us.

MR. CHERTOFF: You got the red light on that.

MR. FAHY: Yes, sir, counsel has been provided for us.

MR. ROVER: Yes, by the Division of Law.

MR. CHERTOFF: Okay. Now, Mr. Fahy, what's your current position?

MR. FAHY: I'm an Assistant Attorney General.

MR. CHERTOFF: And how long have you been at the Department of Law and Public Safety?

MR. FAHY: I've been there since 1978 as a law clerk and it's been about 22 years, I guess.

MR. CHERTOFF: And your current assignment is what?

MR. FAHY: I'm the Assistant Attorney General in charge of supervising the State Grand Jury.

MR. CHERTOFF: Now, Mr. Rover, what's your current position?

MR. ROVER: I'm as Assistant Attorney General in the Division of Gaming Enforcement.

MR. CHERTOFF: And how long have you been with the Department of Law and Public Safety?

MR. ROVER: Since July of 1992.

MR. CHERTOFF: Okay, Mr. Fahy, I'd like to begin with you.

I'd like to go back to the period of time 1994, 1995. What was your assignment at that time?

MR. FAHY: Well, I had many assignments, sir. Are you talking about a specific case that I worked on?

MR. CHERTOFF: No. What was your position?

MR. FAHY: Oh, I was a staff attorney in Legal Affairs. It was a section started in the Attorney General's Office under -- I think it was Cary Edwards, but then under Peter Perretti and also Bob Del Tufo, in which an effort was made to get a handle on employment litigation issues for the Department and also with one of our major clients, the State Police, and to professionalize the office. So they needed to have an attorney who had some litigation experience and I was asked to join the staff.

MR. CHERTOFF: Actually, it was just a very simple question and in the interest of moving along, I want to kind of just see if we can get a focused answer.

So you were with the Office of the Attorney General basically?

MR. FAHY: Yes, sir.

MR. CHERTOFF: Now, did there come a point in time that you were assigned to work representing the State in litigation in Gloucester County before Judge Francis?

MR. FAHY: I did handle it. I volunteered for it, sir. From my prior deposition you know how the circumstances of that came about.

MR. CHERTOFF: Again, is the short answer yes, you actually had the assignment of representing the State?

MR. FAHY: I handled the case, sir, yes.

MR. CHERTOFF: Okay. And you went to court, right?

MR. FAHY: Yes, sir.

MR. CHERTOFF: All right. And how long did that case last approximately?

MR. FAHY: Six months.

MR. CHERTOFF: And when did the actual active presentation of the case come to a close approximately?

MR. FAHY: Well, it began the day after Thanksgiving and closed, as far as most of the hearing, in May of '95. There were one or two other days when I had to appear and it was primarily legal issues. No additional testimony was taken, sir.

MR. CHERTOFF: Now, was this case a significant case within the Department of Law and Public Safety?

MR. FAHY: I would think so.

MR. CHERTOFF: And had you previously been involved in other cases in the past which involved similar challenges by public defenders to trooper activity based on allegations of selective enforcement?

MR. FAHY: Yes.

MR. CHERTOFF: And just identify the other cases you had been involved in.

MR. FAHY: Well, one case in which I represented the State as a trial attorney is State vs. Charles Ellis Jones a/k/a Michael Durand. And I was the attorney. Those hearings lasted three days. I

also --

MR. CHERTOFF: That was in Middlesex County?

MR. FAHY: Middlesex County.

I also provided some legal assistance to a Warren County case but then it was reassigned because of personal issues that I don't need to go into here.

There were also motions made, sir, as I explained at my last deposition, in other counties. And under an office policy started under Peter Perretti and Bob Del Tufo, the counties were to handle these motions, but if they needed any type of assistance as far as briefs or consultation, they could call our office and I would often be the person to speak to them and to send them out the briefs that our office had developed.

Primarily though, sir, I'm the discovery issuer.

MR. CHERTOFF: Now, is it fair to say that in the Middlesex County case there came a point in time that judging the case identified approximately 20 troopers whose activities, in terms of stops, were going to be subject to further discovery and litigation?

MR. FAHY: Well, to be exact, sir, you have a copy of the order. The Judge ruled there was no pattern or practice for the State Police as a whole that he could see. But with regard to those 20 troopers, he thought there was a colorable basis, and that was a discovery standard announced by Judge Baime, in the Kennedy decision, from Warren County and that further additional proceedings could take place if pursued by defense counsel. They could make applications for additional discovery. Yes.

MR. CHERTOFF: Now, did that litigation continue or did it essentially peter out?

MR. FAHY: Well, I don't know what the word "peter out" means. It did not lead to further substantive hearings. There were no further substantive hearings on those cases.

MR. CHERTOFF: So as of the time you were involved in the Gloucester County case, you were at least aware of the fact that this kind of claim with respect to selective enforcement was not a new claim, right?

MR. FAHY: No. From my prior testimony, the first time we ever heard of this type of claim in New Jersey was back in 1989 and that's when Judge Grall, Jane Grall, and I researched the issue and looked at the selective enforcement law and provided advice to Fred DeVesa and Peter Gray.

MR. CHERTOFF: Now, in March of 1996 Judge Francis rendered a decision, right?

MR. FAHY: Yes. He rendered a decision I guess in March.

MR. CHERTOFF: And did you subsequently have a conversation with then Attorney General Poritz about the decision?

MR. FAHY: Absolutely, sir.

MR. CHERTOFF: And what was the general nature of the conversation?

MR. FAHY: Well, the general nature of the conversation was to assess the Judge's decision. I had previously written a memo that was circulated around the Department in which I indicated -- and the conversations would follow that, sir, that's what refreshes my recollection. But we felt that the Judge had erroneously decided the decision. In my memo I said it was highly unlikely that we would get an Appellate Court to reverse the Judge's decision because it was a fact-sensitive issue in a race case which any lawyer knows has heightened scrutiny under the court standards. But we chose -- we also recognized that there were several issues that we had to deal with. One was that a violator survey, which the Judge used to base his decision on in part, had been conducted by the Public Defender and that entailed one Public Defender driving up the highway for 28 hours trying to determine the number of people speeding. To us that didn't seem like a very scientific study.

Judge Poritz -- Justice Poritz, then Attorney General Poritz, felt somewhat strongly that that was not a valid study.

The second area where we had a problem, sir was since well in the 1800s selective prosecution law hasn't changed that much. Under the present law, to this day, there's a heavy burden, and that's the word the courts used, put on the defendant to prove selective enforcement. And the burden does not shift even under the recent cases in New Jersey, including Curtis Kennedy out of Warren County. The court has made clear the burden does not shift. And we felt that the Judge did not deal with the selective enforcement cases. The Judge rather shifted into a civil standard in Wards Cove Packing, and we felt that that could have an impact on selective enforcement law, not just for this particular case, but for all cases.

MR. CHERTOFF: Now, was a decision made to file a motion for relief to appeal?

MR. FAHY: Yes, sir.

MR. CHERTOFF: And that's necessary in order to allow an appeal at that stage of the proceedings, correct?

MR. FAHY: Yes, sir.

MR. CHERTOFF: Now, directing your attention to the same period, March and April of 1996. Did you come to be part of a committee that was formed in the State Police to deal with the issue of racial profiling in the wake of Soto?

MR. FAHY: Yes. I recommended to Attorney General Poritz that something be done and the next thing I know a committee was formed. I don't know if she spoke to the Colonel or how it came about.

MR. CHERTOFF: And that was chaired by Lieutenant Colonel Littles?

MR. FAHY: Val Littles, yes, sir.

MR. CHERTOFF: And it included Captains Brennan and Touw, Detectives Reilly and Gilbert, Trooper DiPatri and yourself and Mr. Susswein, right?

MR. FAHY: Yes, sir.

MR. CHERTOFF: And did you attend several meetings with that committee?

MR. FAHY: I think I attended three meetings in April, March and May of 1996, sir.

MR. CHERTOFF: March, April and May or April, May and October?

MR. FAHY: I did not -- we went through this the last time. I did not attend the October meeting.

MR. CHERTOFF: Okay. Let me focus you now on the meeting of April 12th, 1996. And we've previously had testimony about this, but I want to get your recollection on it.

Do you recall there being discussion in that meeting about the Gloucester County appeal?

MR. FAHY: Yes, sir. Actually, I would have been the one to when it came my turn to speak, that would have been the topic that they would have asked me to address and explain to them the parameters of the Gloucester County appeal, the lawyer in the room, one of the lawyers in the room.

MR. CHERTOFF: Now, as we heard yesterday, and I want to ask you if you agree with this, we heard yesterday that you pointed out to the people of the committee in April that even if the State was going to win on the appeal in terms of getting rid of it as a class motion, there would be subsequent individual litigation about the specific troopers involved in each of the individual cases. Did you explain that to the people of the committee?

MR. FAHY: Yes, sir. I explained to them that if someday the court ever reversed the Judge's decision, down the road there may be some type of further litigation in which the troopers' activities can be looked at. We had asked -- the State's position in the Pedro Soto case was that we should be able to call the actual troopers whose case it was, and the Judge ruled that he would not allow any evidence in regarding particular troopers, he was going to only allow the case to proceed on the issue of pattern and practice. So that was a possibility in the future, sir.

MR. CHERTOFF: Was there then discussion at the committee about the fact that there would be a review of the individual Moorestown State Police cases

-- let me finish, in order to ascertain whether there were potential negative facts or circumstances that would have to be addressed in connection with the litigation?

MR. FAHY: Yes. I want to take one minute to explain that, sir. We were at a meeting, for the first time I'm meeting -- some of these people I met before, some I don't know, we're at a meeting and I'm explaining to them what the results of the litigation was and as an aside, not as any direct assignment to anyone, I said, you know, it would be a good idea for you to look at the information about the individual troopers if we ever get to the point someday where we have to deal with that issue.

MR. CHERTOFF: Well, did somebody agree at the meeting -- specifically did Detective Gilbert agree at the meeting that he was going to undertake an analysis with respect to the 19 cases?

MR. FAHY: No, sir. I did not assign anyone and no one said that it's my job.

MR. CHERTOFF: I want to be real careful here. I didn't ask you if you assigned anyone. I want you to listen to my question. You have to listen, otherwise you can't really answer.

My question is this: Did Detective Gilbert indicate in some way that he was going to undertake an analysis of the underlying Moorestown cases that formed the basis of the Gloucester County litigation?

MR. FAHY: No, sir. I answered it that way for the context. I threw it up as an idea. Detective Gilbert -- I don't even know if I -- I may have met him before, but he didn't say to me at that meeting -- he seemed like the lowest level person, but I'll do this.

MR. CHERTOFF: Mr. Fahy, I'm not interested in whether you thought he was low level or high level. It's very simple. We had testimony yesterday, you either agree with it or you disagree with it, the testimony yesterday was that there was specific discussion that there was going to be an analysis undertaken of the underlying 19 cases in the Gloucester County litigation. Now, you either agree that that was discussed, or you disagree.

MR. FAHY: I agree that I raised the issue. I don't remember anyone saying that's a good idea, that's a bad idea, I, Sergeant Gilbert, will do it. I raised it, sir, as a possibility. I don't give assignments out to state troopers.

MR. CHERTOFF: I'm not asking you whether you gave the assignment out, I'm asking you did Detective Gilbert volunteer --

MR. FAHY: No.

MR. CHERTOFF: -- or indicate --

MR. FAHY: No.

MR. CHERTOFF: You disagree with his testimony on that point.

MR. FAHY: If that's what he said. I don't recall it that way.

MR. CHERTOFF: Was there a discussion in the meeting about the fact that if substantial problems were uncovered, there would be some thought given to whether the appeal ought to be continued?

MR. FAHY: No, sir.

MR. CHERTOFF: That was not discussed at the meeting?

MR. FAHY: No, sir.

MR. CHERTOFF: All right. Now --

MR. FAHY: It wasn't discussed in the issue with Attorney General Poritz either. It wasn't

really --

MR. CHERTOFF: Again, I have to stop you, Mr. Fahy. You have to answer my questions and I want to --

MR. FAHY: No, it was not discussed, sir.

MR. CHERTOFF: Because as we learned yesterday, time is short and we want to finish while it's still today, not tomorrow.

MR. FAHY: I know, but I want to explain in context as why my memory is a certain way.

MR. CHERTOFF: All right. Let me --

MR. FAHY: Well, proceed.

MR. CHERTOFF: Let's proceed further.

Was there other discussion at the meeting about other legal challenges that were then pending with respect to racial profiling in other parts of the State?

MR. FAHY: Yes, sir. I explained that there were similar motions that had been made in Hunterdon County and I believe at the time in Mercer County and may have, and I'm not sure, been one in Bergen County. And that the Prosecutors in those counties were handling those and we were going to provide them with some assistance on the issue -- at that time they were at the discovery stage. So we'd give them our briefs.

MR. CHERTOFF: I'm actually -- well, I'm actually -- just to go back on this issue of Moorestown. I'm going to read to you from Detective Gilbert's report with respect to this meeting and I'd ask if you agree or disagree with his statement. Very simple.

"Fahy noted, if the appeal is successful, the next phase will most likely involve a remand where each individual case is heard."

Did you say that?

MR. FAHY: I probably did say that.

MR. CHERTOFF: "Fahy noted, that should this happen, the individual troopers may be subjected to intense scrutiny in respect to training, discipline and a statistical review of their enforcement patterns, including race."

Did you say that?

MR. FAHY: Yes, I probably did say that.

MR. CHERTOFF: "Should such a public review prove unfavorable, the Division could be further damaged and the individual troopers suffer significant harm to their credibility and standing before the court."

Did you say that?

MR. FAHY: Sure. That was probably my legal opinion.

MR. CHERTOFF: "As a result, it was agreed that a review would be initiated of the 19 Moorestown NJSP cases to ascertain which troopers were involved."

Was that discussed?

MR. FAHY: I don't recall anyone saying that they were going to do it, certainly not Detective Gilbert.

MR. CHERTOFF: "Once identified, an analysis of their activity will be conducted to identify any potential negative issues should they be called upon to testify."

Was that discussed?

MR. FAHY: I don't recall those specific words, sir.

MR. CHERTOFF: How about in general?

MR. FAHY: In general, that's what I said. I brought up the issue the way I'm bringing it up here. I said, if we ever get to the point where there's a remand hearing, it would be good to know about the activities of the individual troopers. That's just a heads-up to State Police that this issue might come back someday. I didn't know. I may take years before the Appellate Division ever ruled on the case. And who would handle the hearings? I don't know.

MR. CHERTOFF: Here's the last sentence.

"If this review uncovers substantial problems, it would be recommended that additional thought be given to proceeding with the appeal."

Was that discussed?

MR. FAHY: I don't recall that. If he put it in the report, maybe. I did say that if information comes back that's very negative about the troopers, that I'd have to bring that to the attention of some supervisor.

MR. CHERTOFF: And that's true, right? If you discovered that the underlying information showed that there was a real problem, you'd have to address that problem, right?

MR. FAHY: Yes. But, you know, I don't know if it would affect the appeal because the appeal deal with the whole troop down in Moorestown and if it showed a problem with two troopers, three troopers, would that make us withdraw the appeal? I can't speculate, sir. But, yes, there's a potential that if there's really damaging information, you would reconsider your legal position, yes.

MR. CHERTOFF: Was there a discussion at the meeting as well about the fact that the State Police were going to start using inspection audits as a way of gathering information with respect to selective enforcement?

MR. FAHY: Yes. Actually Captain Touw was, I think, fairly new to Internal Affairs and he was excited about that and I went on record saying that that's a good idea. There's one criticism I definitely agreed with with the Judge having worked in Internal Affairs was, they did a good job on reviewing the activities of a trooper with regard to something very case-specific. But when it came to detecting patterns and practices, it was not unusual for there to only be the trooper's word versus the motorist's word and that naturally led to claims being unsubstantiated. I fully agree with that. I thought it was a good idea to start undertaking a better audit procedure and Captain Touw, who I didn't know well, but he seemed very enthusiastic and professional, the type of man who wanted to do it. He even talked that he was going to be going to some training courses around the country on Internal Affairs to learn how to better do this. And I --

MR. CHERTOFF: Here's the question, Mr. Fahy. Was there discussion of the fact that there were going to be inspection audits going forward?

MR. FAHY: I think my answer just told you yes.

MR. CHERTOFF: All right. And did you understand that therefore there would be generated in the future statistical information relating to stops?

MR. FAHY: Not particularly, sir. What I thought was being focused on at the time was that if it was a complaint about a particular trooper, that Captain Touw would be looking into that. And that did happen on two occasions thereafter where I did work with Captain Touw in getting information about a particular trooper. But I didn't think the State Police at that point was in a position to do broad-range statistical reviews. Remember, we had just come out of Pedro Soto. Two-thirds of the stop data wasn't even there. Then Colonel Williams, in March of 1996, issued a directive for all State Police to start making sure you call in the race of the people on the stop. And at that point in time, I have to say no. I didn't think they had the capabilities yet to do that, because how could they get the data overnight? You're talking about the first three months --

MR. CHERTOFF: Well, I'm not talking about overnight. But in May, at a May meeting of the committee, did you attend a May meeting of the committee on May 16th?

MR. FAHY: Yes.

MR. CHERTOFF: 1996.

MR. FAHY: Yes.

MR. CHERTOFF: And in that meeting was it made clear to you that there was an analysis of arrest statistics for the troopers who were the subject of the Gloucester County appeal? Was that discussed?

MR. FAHY: Not that I recall, sir.

MR. CHERTOFF: So then again, just to be, you know, fair and complete. There was testimony yesterday from other participants in the meeting that this, the fact of this analysis of the statistics for the troopers in the Gloucester County case, that that was discussed with the committee. You don't remember that being discussed?

MR. FAHY: No. Maybe in a general sense, but I had no idea that there was some completed report. I even asked for the report. I'm a lawyer who deals with facts in cases all the time. I'm not afraid of the facts. If there were bad facts about a particular trooper, that affects that trooper. And I or some other lawyer someday may have to deal with it, but I'm not afraid of information, sir.

MR. CHERTOFF: Were you also made aware of the fact in the May meeting that a preliminary analysis of enforcement activity for I-78 Perryville station, which is in Hunterdon County, for the period 10-94 to 10-95 had been completed? Were you told about that?

MR. FAHY: Not completed, sir. There was talk about doing some -- at that time my recollection is they were doing some analysis of compliance with the Colonel's order from just three months ago, two months ago, that you should call in stops. And the information that I was getting back was the percentages of troopers calling in the stops and explaining the race was going up. And I do recall something about the Perryville station very specifically, that was there was a complaint about two particular officers. There was a case going on in Hunterdon County. Harvey Lester was the Assistant Prosecutor.

MR. CHERTOFF: Mr. Fahy, let me stop you because there really is a time issue here. I'm trying to be very specific in the questions. We'll get to the issue of Prosecutor Lester, but I think this works best if you answer the questions I ask rather than ruminate generally about your thoughts, okay?

MR. FAHY: Sir, I'm trying to explain them in the context that yes and no doesn't always work for me.

MR. CHERTOFF: Right. But we can also answer in sentences rather than paragraphs. So let me focus you specifically on the question. Very simply. Were you told in the May meeting that there was an analysis that had been completed regarding the arrest statistics at Hunterdon County, Perryville station? Were you told about that?

MR. FAHY: Arrest statistics?

MR. CHERTOFF: Yes.

MR. FAHY: No. I was told about -- I was told by Captain Touw about the -- about arrest and Internal Affairs statistics on two troopers.

MR. CHERTOFF: You were not told about a general study that had been done of statistics from October '94 to October '95?

MR. FAHY: No. I probably would have asked for it and I gave all my files over and to this day didn't have a copy of that in my files.

MR. CHERTOFF: Did you -- was Sergeant Gilbert the person who you were typically or principally dealing with in terms of gathering information or other issues with respect to the racial profiling matter in the State Police? Was he your point of contact?

MR. FAHY: No, sir. Not at -- if you're talking about -- remember, I went to meetings in -- I went to meetings in April, May, and my contact at that point on this issue was Captain Touw, the head of Internal Affairs. Later on, when we came closer to the end of the year, I certainly -- and I was also told that if I had a problem with something, I could contact Tommy Gilbert as a staff person. But later in the year I did have contact with Tommy Gilbert and I -- I'll let you ask the questions, but not at that point, sir. The first three meetings, no.

MR. CHERTOFF: All right. What about -- let me ask you this question. I'm going to show you G-5, which is GC1399, which is an April 24th, '96 memo from Detective Gilbert to Lieutenant Colonel Littles that talks about preliminary statistical data, I-78, Hunterdon County, Perryville station. And attached to it is a tabulation of Perryville station arrests for that one-year period approximately, listing 171 total arrests and breaking down the race of the people arrested and the sex of the people arrested. Do you have that before you?

MR. FAHY: I have it before me now, sir.

MR. CHERTOFF: Was the content of this disclosed to you by Detective Gilbert or anybody else from the State Police in 1996?

MR. FAHY: No, sir. This is very detailed and, no. In a general way I knew they were looking to see if the State Police were complying with SOP F3 that the Colonel had reminding people we had a problem in the Soto case, start calling these stops in.

MR. CHERTOFF: This document isn't about whether stops were being called in. This document sets forth the percentage of minorities and non-minorities being arrested over a period of a year.

MR. FAHY: And I'm telling you I never saw this to this day, to just now.

MR. CHERTOFF: Did you hear about the content of this either during the meetings you attended with the committee at the State Police or from the State Police in some other way in 1996?

MR. FAHY: No, sir. And certainly not from Detective Gilbert. He did not give briefings at those meetings.

MR. CHERTOFF: I don't care whether it was from Detective Gilbert or one of the Captains, was --

MR. FAHY: No.

MR. CHERTOFF: -- this discussed at any of the meetings in '96?

MR. FAHY: Details of arrests of Perryville? No.

MR. CHERTOFF: Again, I don't want to -- I didn't ask you details.

Was the substance of this memo, the fact that there was a review and analysis of the racial breakdown of arrests in Hunterdon County for one year, was that discussed generally either at the committee meetings or with the State between someone in the State Police and you in 1996?

MR. FAHY: Not that I recall. And it would have surprised me. I would have said how can you do that with two-thirds of missing data?

MR. CHERTOFF: Were you familiar with the fact -- were you familiar with the fact that in 1996 there was also -- there were also allegations by minority troopers at the Moorestown station that there was racial profiling?

MR. FAHY: At that time? No.

MR. CHERTOFF: Now, let me, just so we're completely clear. The Gloucester County case involved Moorestown, right?

MR. FAHY: Yes.

MR. CHERTOFF: And it was on appeal, correct?

MR. FAHY: Yes.

MR. CHERTOFF: But there's a continuing obligation when you're a lawyer for a court to advise the court of material information that changes the circumstances, right?

MR. FAHY: Absolutely, sir.

MR. CHERTOFF: So would you agree with me that would be a matter of importance for you if information were to come to light that related to Moorestown for you to evaluate whether that should have some effect on the litigation, right?

MR. FAHY: Yes, sir.

MR. CHERTOFF: Is it your testimony that through your attendance at meetings with the State Police in 1996 or through your discussions with the State Police, you were unaware in 1996 that there was

-- that there had been complaints from the Moorestown troopers about profiling? That there had been an analysis of various statistics as it related to Moorestown?

MR. FAHY: The specifics of it, sir? Yes.

MR. CHERTOFF: In general, were you aware of the complaints and aware of the analysis?

MR. FAHY: I can't say, sir, that I didn't hear somewhere that some trooper may have made a complaint, but I know -- I know of my history dealing with the issue was, and I told you in my prior deposition, when two troopers testified, they were former troopers, in Pedro Soto, that they were taught to racially profile. The first thing I did was come back and tell Attorney General Poritz, this is the first time we have on record the fact that any former trooper says he was taught to profile. And during the course of that hearing, you know the circumstances, I explained it, I had to conduct more of a deposition and find out who taught you. They seemed to say that it was during their trainer/coach period and then I called every witness, sir, that they had mentioned at the Pedro Soto hearing. I'm giving you that as an explanation to say if I had a report or information that a particular trooper made a complaint that there was racial profiling in that station, then I would have wanted to look at it, yes.

MR. CHERTOFF: So, Mr. Fahy, is it your testimony here that you were never advised in 1996 that there had been complaints about racial profiling from Troopers in Moorestown or that there was a study done of the arrest and search and stop statistics in Moorestown in 1995? You were unaware of that in 1996?

MR. FAHY: Yes. I may have heard there was a complaint. I was unaware that they went in and did an Internal Affairs analysis of it and they didn't provide it to me.

MR. CHERTOFF: Were you aware that in 1995 or 1996 there were reports from the State Police that the number of stops involving black motorists on the southern portion of the Turnpike at Moorestown were made near the level reported in the Soto case?

MR. FAHY: Yes, that's exactly what I testified to the last time.

MR. CHERTOFF: And where did you learn that?

MR. FAHY: Later in 1996, and to this day I've been hearing that the numbers down in Moorestown remain about the same -- as a matter of fact, I may have gotten a little more information. In the letter that I drafted for the Attorney General to send to Justice, I put in there that the Moorestown station appeared somewhat higher than the other stations on the Turnpike. That probably would have been an oral report from Tommy Gilbert.

MR. CHERTOFF: Okay.

MR. FAHY: Later in '96.

MR. CHERTOFF: Okay. So at some point in '96, and all my questions have been addressed to '96. I had it limited to the earlier later part. You agree now that there's a point in '96 you have a conversation with Tommy Gilbert about the numbers of stops in the Moorestown area, right?

MR. FAHY: Yes, sir.

MR. CHERTOFF: And tell us about that conversation.

MR. FAHY: I don't recall the specifics. What I do recall is it appeared that he was on the Colonel's staff because after the meetings, after the meetings in the spring of '96, I didn't have much to do with this issue over the summer. I didn't go to the October meeting. Whether there had been a phone call or two from Tommy Gilbert, I can't say for sure, sir. But the next triggering event for me in getting involved with this was in December of '96, when for the first time I got to meet Peter Verniero, because evidently something came in from the Justice Department and at that time there was a meeting later on that Tommy Gilbert came to and I had known then that he was working on this for the Colonel. And when I drafted the letter for Attorney General Verniero to send to Justice, there were some facts in there and one fact was that the stops on the Turnpike remained the same about for the lower end and are somewhat higher than other stations on the Turnpike. I did ask -- I sent that over to Mr. Gilbert, but at the same time I want you to understand the context, because this is an issue of racial profiling for this committee. You know, these were preliminary statistics that they were going through.

MR. CHERTOFF: Let me stop you, Mr. Fahy. You're way outside of what the question was, and we'll get plenty of time to get the context. But I want an answer to the question. Did you have a conversation with Sergeant Gilbert about the issue of the percentages of minorities being stopped in Moorestown in 1995 and 1996? You had a conversation with him about it?

MR. FAHY: It may have been very late in '95 or early '96.

MR. CHERTOFF: Okay. Did you have a conversation with him about it?

MR. FAHY: Yes.

MR. CHERTOFF: And now you told us a few minutes ago that because of your interest in the Gloucester County case, if you heard something about that, you'd want to ask for a report or some kind of documentation, right?

MR. FAHY: Always, sir. I'm not afraid of statistics or information. I'm a trial lawyer.

MR. CHERTOFF: So did you ask Sergeant Gilbert when he told you about this, let me see some paper?

MR. FAHY: No. And can I explain why? You probably don't want to hear why, but --

MR. CHERTOFF: Go ahead.

MR. FAHY: -- I didn't think at that point that they were in a position yet -- it hadn't come to my attention they were in a position yet to be doing studies internally of activity on the Turnpike. If they had gotten to that point, I would have recommended they get an expert. Every time I had a case -- I'm not a statistician. The first thing I did was say get an expert. You need to -- when you're doing a study, you need to make sure that it's scientifically correct. They're not experts in statistics and neither am I. So I would have probably -- if I thought it got to that point, I would have told them to do that.

MR. CHERTOFF: I don't understand, Mr. Fahy. I thought you told us a couple of minutes ago -- first of all, I have to ask, Mr. Fahy, is there some reason that in answering my questions you feel the need to look over to the press rather than looking at the Committee?

MR. FAHY: No, sir.

MR. CHERTOFF: All right. Now, I want your attention on this if I can get it.

When you're told by Sergeant Gilbert at some point late in '96 that there are statistics relating to Moorestown, which is the same territory covered by the Gloucester County case, you've told us you didn't ask for any documentation, right? Correct?

MR. FAHY: No.

MR. CHERTOFF: You've also told us that in the normal course you'd want to make sure that if anybody does a study, that it's done properly with an expert. That it's properly organized, right?

MR. FAHY: Absolutely.

MR. CHERTOFF: Did you say to Sergeant Gilbert, hey, look, if you guys are doing studies relating to the very barracks that's the subject of the litigation we have in front of the Appellate Division, where we're taking a position about the numbers, I want to be involved in this as the trial lawyer so I understand whether you're doing the studies properly, whether this is something we're going to have to deal with in the litigation? Did you have any conversation with Detective Gilbert along those lines?

MR. FAHY: No.

MR. CHERTOFF: By the way, in 1996 did you also go to Captain Touw to a meeting in Hunterdon County?

MR. FAHY: Yes, sir.

MR. CHERTOFF: And that was a meeting with the Prosecutor?

MR. FAHY: Prosecutor Ransavage, sir, yes.

MR. CHERTOFF: And the purpose of the meeting was to discuss the fact that there were a couple of Hunterdon County cases which were the subject of litigation, again for selective enforcement based on the theory of racial profiling, right?

MR. FAHY: I don't know if it was one or two cases, but there was a case there, yes.

MR. CHERTOFF: And --

MR. FAHY: And two troopers that were -- allegations were made to that.

MR. CHERTOFF: And those were cases in which the defendants were charged with first-degree narcotics crimes, right?

MR. FAHY: Yes, sir.

MR. CHERTOFF: Which is the most serious type of felon, right?

MR. FAHY: Yes, sir.

MR. CHERTOFF: And the purpose of that meeting was to discuss whether those cases ought to be pled out to lesser charges, correct?

MR. FAHY: Not absolutely, sir. Can I explain what the purpose of the meeting was?

MR. CHERTOFF: Yes.

MR. FAHY: There had been a policy worked out by Debbie Poritz and Jim Ciancia that if we received information concerning a particular trooper, that we would work with the Public Defender's Office. And there was actually a meeting in May of '96 to try to work with them and to cooperate with them if they needed information. That ties in to what I thought Captain Touw was doing. If there was information provided to him about a particular trooper, I would get him the names of the trooper from the county and he would look into their records. He did look into the records of these two troopers and we went to see the Prosecutor. At that meeting no reports were brought. I received again an oral from Captain Touw, who I trusted, who said with regard to one trooper, there doesn't appear to be a problem. With regard to the other trooper -- and the word I used in my deposition last time was he was an "outliner." That's not Captain Touw's word, I just can't think of another word right now. But that there would be some issue involving him. We explained this to the Prosecutor. She said that -- she said that wow, I'm going to have a tough time and take a lot of heat for dismissing a first-degree case. At the same time, we were operating under a policy of Debbie Poritz that the counties were going to have to bear some of the expense and cost of this. She assigned Director Farley to the matter of bearing the cost of hiring experts. We had spent $100,000 in Gloucester County. Prosecutor Ransavage -- it's a long time, I don't want to put words in her mouth, but the consensus seemed to be wow, if we're going to have trouble maybe defending this one particular trooper's case and we have to spend a fortune on it, I may be left with no position but to plead the case out. And that's unfortunate, sir. But that's part of what went into the analysis and --

MR. CHERTOFF: Was the Hunterdon County Prosecutor, was she uncomfortable with the idea of pleading these cases out?

MR. FAHY: Sure, she was.

MR. CHERTOFF: And you're telling us that the discussion was they would have to be pled out because the statistics as they related to at least one trooper were such that it would be difficult and time-consuming to defend that trooper's enforcement practices, right?

MR. FAHY: Yes. And that was an approved policy in the office. In the May -- under Debbie Poritz and Jim Ciancia in May of 1996 there was a meeting in which the head of the Public Defender's Office came to our office and we discussed that if they had any information on any particular trooper, they were to bring it to our attention. Here were two State agencies spending a ton of money on litigation and statistics and if we could work together, we would work together. And we signed a consent decree in other cases too, to do that.

MR. CHERTOFF: We're wandering a little here.

So the net result is that because of the statistical profile, so to speak, of the troopers' arrests, it was considered better or more prudent to dismiss or downgrade first-degree felony offenses than to try to litigate the underlying case, correct? That was the final result?

MR. FAHY: Yes. There was one other -- one other issue that came up there and that was Captain Touw said that he would ensure that the trooper received counseling regarding his numbers. Because no one -- at that point no one knew what number was a sufficient number to bring disciplinary charges against the trooper. And he said he would counsel that trooper.

MR. CHERTOFF: Would you agree that is a serious matter when the statistics that apply to a trooper's enforcement are such that it requires -- that discretion requires dismissing or downgrading serious cases rather than litigating the cases?

MR. FAHY: Absolutely. And we had dismissed hundreds in the past when Troopers Hennig and -- was charged with indictments years earlier. It's not a nice thing.

MR. CHERTOFF: Now --

MR. FAHY: It's a difficult thing.

MR. CHERTOFF: -- just to sum up. In the year 1996, it's your position that at no time did you hear from the State Police about an audit of arrest statistics at Perryville, correct?

MR. FAHY: To the best of my recollection, yes, sir.

MR. CHERTOFF: You don't remember ever being told about the results of an analysis of the 19 trooper cases that were part of the Gloucester County case?

MR. FAHY: Absolutely. That would still have been in my file to this day, sir. No, I did not get that.

MR. CHERTOFF: So you disagree with any testimony that you were told about that either at committee meetings or by Detective Gilbert directly, you'd disagree with that?

MR. FAHY: Yes, to the best of my recollection.

MR. CHERTOFF: And finally, with respect to the general issue of -- and you also tell us you knew nothing and you were never told about complaints of racial profiling from individual troopers in the Moorestown station, right?

MR. FAHY: No, that I didn't say. I think I explained it and my statement speaks for itself. I may have heard that there was this issue, but the Internal Affairs Division was going to look at it and I never got the report. I also want to --

MR. CHERTOFF: Did you ask for the report?

MR. FAHY: No, sir, I didn't ask for the report. But I want something else understood. I left the Office of the Attorney General in 1996. I was assigned to the Division of Criminal Justice supervising the State Grand Jury. That's not an excuse, sir, but I was not working on this very much. I would get an occasional call from the State Police and I told that to Attorney General Verniero in December when he found me. He called me up there then and I'm like, oh, you finally found me. I had asked to get off this issue after seven years of working on it from 1989 to 1996.

MR. CHERTOFF: And finally, you've indicated to us that you believe you learned that there was some kind of an analysis of stops involving minority motorists at the Moorestown area but you never actually asked for the documentation, correct?

MR. FAHY: I could have heard about it. I never received it and I don't believe I asked for it. I think I would have asked for that.

MR. CHERTOFF: You think you would have asked for it?

MR. FAHY: Sure.

MR. CHERTOFF: You certainly heard of it.

MR. FAHY: What's to be afraid of asking for a report?

MR. CHERTOFF: Well, you certainly heard about it though, right? You heard about the fact that there was --

MR. FAHY: I heard there may have been a complaint made by a trooper. Sir, I worked with Internal Affairs for years. They do very significant reports. If there was a report someday, I figured they would send it over.

MR. CHERTOFF: Here's my question to you. You were aware as of the end of '96 that there was some report by the State Police. Some analysis by the State Police that the number of stops involving minority motorists in the Moorestown station area were at or near the level reported in Soto, right? You knew that?

MR. FAHY: Absolutely. I hear that to this day.

MR. CHERTOFF: And you didn't ask --

MR. FAHY: Orally, often.

MR. CHERTOFF: And, you know, Mr. Fahy, just really stick to -- the question is late '96, are you with me here?

MR. FAHY: I'm following you, sir.

MR. CHERTOFF: And in late '96 -- I'm not interested in '99 or 2001, in late '96 you knew that there was a statistical analysis having been done recently by the State Police of the Moorestown stop statistics, correct?

MR. FAHY: That is too broad, too specific a definition. A statistical study. I knew they were monitoring, sir, the stop rates in that area. Whether that entailed a report that would be scientifically reliable to statisticians or not, I don't know. I heard that the numbers were running about the same.

MR. CHERTOFF: And having heard it, you never asked for a piece of paper or any report on it, correct?

MR. FAHY: I didn't know that they had done a report yet.

MR. CHERTOFF: You didn't ask for any piece of paper or any information about it, right?

MR. FAHY: I asked orally and I trusted the good faith of the people working at the State Police to give me the truth. And the context I asked for it in was over -- I had to ask quickly to draft a letter to the Justice Department, sir, and I didn't want to put something in that letter that wasn't true. So I did ask.

MR. CHERTOFF: Now, you learned in December of 1996 that the Department of Justice, the Civil Rights Division had initiated some kind of examination of racial profiling?

MR. FAHY: Yes.

MR. CHERTOFF: And how did you learn that?

MR. FAHY: I don't know if Judge Waugh, then Assistant Attorney General Waugh, asked me to do a briefing memo for Attorney General Verniero prior to a meeting, but eventually in December -- you have the date, I don't know, sir, 9-12, it doesn't matter --

MR. CHERTOFF: December 9th.

MR. FAHY: -- I went to a meeting and I think there had been a briefing memo like many of the memos you have that I did over the years, briefing people as to the status of the issue.

MR. CHERTOFF: Now, before that meeting, had you had occasion to meet with representatives of the Maryland State Police along with Detective Sergeant Gilbert at Moorestown station to talk about a case that had been pending involving the Maryland State Police?

MR. FAHY: Yes.

MR. CHERTOFF: And in that meeting did they discuss with you the fact that they had entered a consent decree or had been forced to enter into a consent decree with the private plaintiffs?

MR. FAHY: Generally. I'll tell you what happened, sir. I got a call from a -- I guess an Assistant Prosecutor, whatever their title is in Maryland, who said, "I see that you're litigating this issue in New Jersey and you're the trial attorney. I have the misfortune of being the trial attorney in Maryland. Would you mind if I met with you and piqued your brain a little bit about what you're doing in New Jersey?" And I said sure. So I set up a meeting to go down to -- we didn't go to Maryland. I said I wouldn't mind if you came here instead of me driving to Maryland, but I'll meet with you, sure.

MR. CHERTOFF: So you met at Moorestown, right?

MR. FAHY: Yes.

MR. CHERTOFF: Was Detective Sergeant Gilbert there?

MR. FAHY: Yes.

MR. CHERTOFF: And in that meeting did he explain to you that they had been -- that they had to enter into a consent decree?

MR. FAHY: Yes, with the HDLU, yes.

MR. CHERTOFF: And did he discuss the fact that that was based on consent-to-search statistics?

MR. FAHY: Yes, sir.

MR. CHERTOFF: And you understood that the consent-to-search statistics were different than stop statistics, correct?

MR. FAHY: Absolutely, sir.

MR. CHERTOFF: At that point in time, did you do anything to follow up or ask any questions concerning the consent-to-search statistics in New Jersey?

MR. FAHY: No.

MR. CHERTOFF: You had no interest in that?

MR. FAHY: Oh, I had an interest, but for several yeas I've been asking since 1993, you have my memos, can we please do a study in New Jersey about the traffic violators.

MR. CHERTOFF: I'm not talking about that.

MR. FAHY: I know, but, sir, you have to understand the framework. If I couldn't get the first study done, I didn't ask about getting the second study done.

MR. CHERTOFF: So you didn't ask --

MR. FAHY: Which is harder.

MR. CHERTOFF: You didn't have any discussion with Sergeant Gilbert concerning is there some way to look at consent-to-search statistics and see how those break down?

MR. FAHY: No, I don't recall that we ever got to that point.

MR. CHERTOFF: And you didn't have any --

MR. FAHY: I was happy we were getting them to start marking race on the radio logs and patrol charts. That to me was a big step forward. It was a lot better than I had in the prior litigation.

MR. CHERTOFF: So again, just to be clear. You never talked to Sergeant Gilbert at the meeting or afterwards concerning any kind of analysis he was going to do about the consent-to-search statistics in New Jersey at a comparison to the ones you had heard about in Maryland?

MR. FAHY: No. I know now that later in the fall that a different Detective, Joe Brennan, gave him some information about this. But, no, I didn't -- that was surprising to me that he went off and did that on his own. If he did, more power to him.

MR. CHERTOFF: But he didn't tell you about it?

MR. FAHY: He didn't tell me he was doing the consent-to-search study, no.

MR. CHERTOFF: Now, you then met with the Attorney General to prepare him for this meeting with the Department of Justice, right?

MR. FAHY: Yes.

MR. CHERTOFF: And who was at the meeting?

MR. FAHY: Justice, then head of the Division of Law, LaVecchia. Justice, then Attorney General, Verniero. Judge, then Assistant Attorney General, Alex Waugh. You have the paper. You may help to remind me.

MR. CHERTOFF: Was Colonel Williams there?

MR. FAHY: Oh, yeah, Colonel -- I don't know if he was at that one or the one later in the month, but probably.

MR. CHERTOFF: All right. And what was the discussion at this meeting?

MR. FAHY: The discussion of the meeting was that we had an inquiry from the Justice Department and that the Attorney General would be going down to Washington. That he was concerned that Justice not start an investigation on New Jersey. He thought that that word had a very negative connotation. And he did say this, he was afraid it would reflect adversely on our state and on the administration. And basically he advised everyone we were going to go down and he was going to put his best foot forward to try to work this out in the most amicable way.

MR. CHERTOFF: Well, I mean --

MR. FAHY: That's general. I don't recall what everyone said.

MR. CHERTOFF: Was there discussion about what the nature of these issues that were being looked at were?

MR. FAHY: Well, sir, I think he probably had me do a bit of the talking there because it was the first time I ever met him and anytime a new Attorney General came in, I would usually do a briefing memo and at some point I would give them the litigation history. Now, it's in my deposition. I won't bore everyone here with it, but he wanted to know what the issue of racial profiling entailed and what the history of the litigation was. It struck me this was new to him that day so I briefed him.

MR. CHERTOFF: So you told him about the Middlesex County case?

MR. FAHY: I'm sure I mentioned it. There was definitely a memo that I sent that was the basis for the meeting.

MR. CHERTOFF: Did you tell him about the Middlesex County case in the meeting?

MR. FAHY: I think so. It's a long time ago, sir.

MR. CHERTOFF: Did you talk about the Hunterdon County case?

MR. FAHY: If I did it was probably only in the context that a motion had been raised and the case had been dismissed.

MR. CHERTOFF: Did you talk about the Soto case?

MR. FAHY: I'm sure if there was any case we talked about, it was Soto, sir.

MR. CHERTOFF: And was it clear from you in the conversation or did you make it clear this was a significant -- this whole issue of racial profiling and these allegations were becoming a significant problem for Prosecutors in the State of New Jersey?

MR. FAHY: I don't know how you couldn't think that at that point, sir. It certainly was to me.

MR. CHERTOFF: So you'd agree with me that you made it clear in the meeting, and it was clear in the meeting, that this issue of allegations of racial profiling was a very big problem for Prosecutors in the State of New Jersey, right?

MR. FAHY: I had to deal after seven years, yes. I don't know how you couldn't think otherwise.

MR. CHERTOFF: You're going to have to answer my question is --

MR. FAHY: But, sir, I can't say --

MR. CHERTOFF: -- very directly is was it made, yes or no, was it made clear at the meeting that this issue of racial profiling was a big problem for Prosecutors in New Jersey?

MR. FAHY: Sir, understand my difficulty. I can't remember specific words. Did I say to Peter Verniero, this is a very big problem in the State of New Jersey? No. But I gave a briefing and anyone with an ounce of common sense could see that we had a history and if they're going down to Washington to talk about it, it's an important issue.

MR. CHERTOFF: And the Washington thing was a relatively new development, correct?

MR. FAHY: That came out of the blue.

MR. CHERTOFF: Now, what did the Attorney General say about what his objectives were in terms of going down?

MR. FAHY: He wanted it to be amicable. He did not want it to be a formal investigation. That we would go down, see what they wanted. He also expressed, I recall, some view why New Jersey? Is this a problem just in New Jersey? Isn't this a problem in other states? Could New Jersey -- he wanted to be very careful about saying this, but he said is New Jersey the worst state with regard to this? It seemed --

MR. CHERTOFF: Did you tell him about Maryland?

MR. FAHY: I don't recall that I told him about Maryland. I may have said well, I know there are cases in Maryland, and Illinois was another state I knew there were cases in at that time.

MR. CHERTOFF: Did you talk to him about consent-to-search issues that you had learned about in your meeting with the people from Maryland?

MR. FAHY: No, I don't think it got that detailed, sir. This is the first time I ever spoke to him on the issue.

MR. CHERTOFF: Did you say anything at all about or did he ask or did anybody discuss whether -- well, let me step back.

The statistics in Soto were comparatively old. That case was based on statistics going back in the late eighties and early nineties, right?

MR. FAHY: The data base was from I think '87 to '89, sir.

MR. CHERTOFF: So naturally the question would arise whether the problems identified in the late eighties or still in existence in the mid-nineties, right?

MR. FAHY: Well, sure. I mean he probably asked me what the position of our office had been and I'll say here, as I often said, despite the Zoubek report, I never went into court and ever said that no trooper engaged in a pattern and practice of racial profiling. And it's always been the position of the office that this issue was raised and that steps should be taken. Now, each Attorney General have their own way of taking steps, but we took --

MR. CHERTOFF: Again, Mr. Fahy --

MR. FAHY: -- sure, that was a problem.

MR. CHERTOFF: -- I just want to set the stage. You have the Soto case based on figures in the late eighties, correct?

MR. FAHY: Yes.

MR. CHERTOFF: Now you have the Department of Justice coming in, they say they want to look at the issue, right?

MR. FAHY: Yes.

MR. CHERTOFF: You'd agree with me, a natural question to be asked is are the statistics that we were dealing with in Soto back in the late eighties still true or are we in a better position now so that we really feel we're more comfortable in how this issue is being handled? Did anybody ask that question?

MR. FAHY: We might have, sir. I might have briefed him also on the history of what had been done under Colonel Dintino when the SOP's were revised. On the training issues. Deborah Poritz' attempts to negotiate this. The fact that after Curtis Kennedy came out we were not going to fight discovery issues. We gave records over freely to Mercer County for study.

MR. CHERTOFF: Mr. Fahy, I only had a very simple question.

MR. FAHY: And I'm telling you -- you're asking me about other --

MR. CHERTOFF: Listen to me. Listen to me. I don't ask you for everything that was said. Here's my specific question. Was there a discussion about '95 and '96 statistics in this meeting, yes or no?

MR. FAHY: I don't recall that there was specific discussion about what the statistics in '95 and '96 were, no.

MR. CHERTOFF: Did anybody ask in anticipation of this meeting with the Department of Justice, what is the current situation or the current statistics showing about the issue of disproportionate impact?

MR. FAHY: They could have. I may have said I've heard oral reports that they're running about the same down there.

MR. CHERTOFF: And did anybody say well, let's follow up on that? Let's find out before we go down to meet with Washington what our real exposure is?

MR. FAHY: Not to find out before the meeting in Washington, no. Not that I recall.

MR. CHERTOFF: What about after the meeting in Washington?

MR. FAHY: Well, definitely after the meeting in Washington. Like I said, I definitely had to have a conversation with Tommy Gilbert and ask him, you know, have your -- what are the State Police numbers running like now? And he told me that those numbers were running about the same and that the lower end of the Turnpike was higher than the other parts of the Turnpike on stop statistics.

MR. CHERTOFF: And that's the conversation you never followed up with by asking for any paperwork or anything, right?

MR. FAHY: Yeah, but I can't -- I don't want to leave a misimpression so that on the day that I first met Attorney General Verniero on this issue that we went that detailed into the whole issue. It was a new issue for him. I gave him a briefing summary, the best that I could, sir.

MR. CHERTOFF: Now, then you went down to -- well, did you go down to Washington with the Attorney General?

MR. FAHY: I didn't personally accompany him. He was at the meeting with me. I went down with Judge Waugh.

MR. CHERTOFF: And did you go into the meeting with the people from the Department of Justice?

MR. FAHY: Yes.

MR. CHERTOFF: And what was said at the meeting?

MR. FAHY: It was a very cordial, pleasant meeting. Attorney General Verniero spoke primarily to the head of the Civil Division, I forget her name today, I gave it to you the last time, and said --

MR. CHERTOFF: Was it Loretta King?

MR. FAHY: Yes, Loretta King.

-- and said some of the same things he said at that meeting. We want to cooperate with you. We prefer that it not be called an investigation because that has such a negative connotation. Can it be a review? He spoke about how he viewed it as an important issue. He certainly didn't go down -- he certainly didn't go down there and tell her we don't want to have an investigation and you're crazy to be looking at New Jersey. It was -- and I don't --

MR. CHERTOFF: So he said it was an important issue.

MR. FAHY: Well, I don't want to put that word in his mouth. You're going to have to understand, sir, years later it's very hard to remember an exact wording, meaning. I remember some things about it because I did memos of them. I did not do a memo about what Loretta Kind said, what Mr. Verniero said. So it's hard for me in this day and age. I can give you impressions.

MR. CHERTOFF: But you'd agree with me that this reading was one in which, you know, the Attorney General himself appeared. The Executive Assistant appeared. You appeared. And a high-ranking member of the Civil Rights Division and other lawyers were also in this meeting, right?

MR. FAHY: Yes, sir.

MR. CHERTOFF: And there was a clear discussion about the Justice Department's interest in doing some kind of review with respect to racial profiling, right?

MR. FAHY: Yes. And we had -- we had quite a -- I know we had some discussion about how do you do these reviews. It didn't seem to me that they were particularly up on how you do these reviews either.

MR. CHERTOFF: Was Soto discussed in the meeting?

MR. FAHY: Oh, absolutely. The Attorney General expressed the fact that Soto was on appeal and that we hoped it would be reversed. And we thought it would be reversed. You know, if you list other things, it may spark my recollection. But that was discussed, Soto.

MR. CHERTOFF: And was there a discussion about, for example, information and documentation that the Civil Rights Division would want from New Jersey?

MR. FAHY: I don't recall specifically, sir. There was -- they brought out a piece of paper and it seemed to apply more to civil cases than the criminal cases. And they said this is like a type of sample document request that we would do in a review. I don't know if they used the word "civil," but it was not -- nothing was written in stone at that. It was an honest discussion about how do you go about doing these reviews. And I know we talked somewhat about the difficulty in conducting a violator survey which our office still felt had -- if a proper violator survey hadn't been done down in the lower end of the state and they didn't really have an idea of how you did one either. I recall that. I mean it was like academics, talking a bit about how you would go about addressing his problem. It was a very pleasant meeting.

MR. CHERTOFF: Now, by the way, I just want to go back to something. You would agree with me that by this point in time you had been hearing that the numbers with respect to stops of minority drivers in Moorestown were running about the same as Soto, right?

MR. FAHY: Yes.

MR. CHERTOFF: And again, you hadn't asked for any follow up with respect to that, right?

MR. FAHY: Right.

MR. CHERTOFF: But did you know at this point going into this negotiation with the Department of Justice and from what they said, that they were going to be asking for this kind of information that would be more current than the information period that was covered in Soto?

MR. FAHY: Oh, absolutely. I thought if they were going to come in and do a review -- I welcomed the resistance, who wouldn't?

MR. CHERTOFF: And did you actually come away or at some point receive a form that listed the information and request with respect to the Department of Justice inquiry?

MR. FAHY: That's the form I just told you about.

MR. CHERTOFF: All right. And --

MR. FAHY: It was a sample form. It wasn't

-- it wasn't addressed to the State of New Jersey. It was a sample form.

MR. CHERTOFF: I'm going to show you what has been previously marked as W-14 for identification,

OAG577. It's a letter, a memo to you from Alexander Waugh, December 20th, 1996, relating to State Police profiling. Did you get this?

MR. FAHY: Yes, sir.

MR. CHERTOFF: And --

MR. FAHY: I don't know if we took a copy with us that day, I assume we did. We certainly had it in the office.

MR. CHERTOFF: Is this the information request sample you got?

MR. FAHY: Yes.

MR. CHERTOFF: It covers the period '94 through '96?

MR. FAHY: It wasn't filled in. There was no dates put on there.

MR. CHERTOFF: Does it say at the bottom of Page 578, "For the entire period of 1994 through 1996"? It's on the second page of the document. First page of information request.

MR. FAHY: Yes.

MR. CHERTOFF: All right. And it covers not only the issue of stops, but it also covers searches, seizures and/or arrests, right?

MR. FAHY: Yes.

MR. CHERTOFF: Did you have any discussion with anybody about what would be entailed in dealing with this sample request?

MR. FAHY: Well, yeah. We thought --

MR. CHERTOFF: Who did you discuss it with?

MR. FAHY: Probably Alex. Maybe Peter Verniero. I don't recall a specific meeting. I know that I was assigned to look this over and give my commentary to Alex Waugh about it and I know that I had to forward it over -- I didn't forward it, I think December 24th the Colonel and Tommy Gilbert came over and the purpose of that was to brief them on what happened in Washington and they may have been given a copy of this there. But I can say clearly, December 24th, 1996. I wasn't so sure at the last time I gave my deposition, but it makes sense now that me and Tommy were the ones who were going to do the initial review of this document for each office. And then I was assigned to check and see -- and make a comment about how hard and how quickly we could get each of the items listed on here.

MR. CHERTOFF: Now, in this December 24th meeting, you were present?

MR. FAHY: Yes.

MR. CHERTOFF: With Colonel Williams?

MR. FAHY: Yes.

MR. CHERTOFF: Attorney General Verniero?

MR. FAHY: Yes.

MR. CHERTOFF: Executive Assistant Attorney General Waugh?

MR. FAHY: Yes.

MR. CHERTOFF: And was Sergeant Gilbert present?

MR. FAHY: I think so, yes.

MR. CHERTOFF: Was there any discussion about the consent-to-search issue that you learned about in Maryland at this meeting?

MR. FAHY: Not that I recall.

MR. CHERTOFF: Was there a discussion about the way the numbers were running in '95 and '96 in Moorestown?

MR. FAHY: There could have been.

MR. CHERTOFF: And what was the discussion?

MR. FAHY: I can't remember. I'm just saying, the discussion at that meeting, Christmas Eve, that meeting was here's this document request, the Attorney General would have told the Colonel what was said at the meeting in Washington and the fact that we have to review the document requests. That nothing had been made final. I think he was very happy to explain to the Colonel that it was not going to be called an "investigation," it was going to be a "review." That we were going to cooperate and to see what we could gather. And that there would be some negotiations about what parts of the State of New Jersey they would look at.

MR. CHERTOFF: Now, in this meeting or at anytime between the time you met on December 9th in the Attorney General's Office through the end of 1996, was there any discussion you had with anybody else in the Office of the Attorney General where somebody said, since we're getting into this, what are the underlying facts? What do the underlying numbers look like? What's our exposure here? Anybody have a conversation like that with you from the Office of the Attorney General?

MR. FAHY: There may have been discussions about a violator survey and we explained, well, even if you have the stop numbers, and they were, granted, maybe higher in South Jersey on the Turnpike versus in other parts of the State, what do you compare them to? And there may have been some discussion about well, you need a traffic survey. Even the Public Defender -- but we criticized it, but I'll agree, we didn't do our

own --

MR. CHERTOFF: So did anybody --

MR. FAHY: -- and we met right after that. The reason I'm saying there may have been discussions is right after that I received the assignment to go and talk to different experts about doing a traffic survey. So it could have come up. It could have come up, I don't know, sir.

MR. CHERTOFF: Was there any discussion about or did you talk about what you had heard with respect to the ongoing Moorestown numbers being compiled by the State Police?

MR. FAHY: I can't recall specifically.

MR. CHERTOFF: So you don't know whether you did or you didn't?

MR. FAHY: It wasn't a secret that the numbers were running about the same.

MR. CHERTOFF: It wasn't a secret.

MR. FAHY: Not to me. I said -- and I have received oral reports from that day and to this day when I'm not working on the issue, you get oral reports you hear around the office, you hear from State Police, the numbers are running about the same. To recall the specifics, sir, I don't recall.

MR. CHERTOFF: Now, there came a point in time you were actually asked to put together a draft letter to Loretta Kind from the Civil Rights Division who was the person you had met with in Washington, correct?

MR. FAHY: Yes, sir.

MR. CHERTOFF: And what were you told the purpose of the letter was?

MR. FAHY: I don't know if I was told. I mean I had been a practicing attorney for 15 years, I was told to respond to the letter and if you give me a copy of the letter it may refresh my recollection.

MR. CHERTOFF: All right. Well, we're going to show you a draft of the letter, F-26. It's OAG625. It's a typed version. It says January 3rd, 1997. And the 3 is struck out and it looks like either a 7 or 17 is inserted above it and there's some handwriting.

MR. FAHY: Right.

MR. CHERTOFF: It's OAG625.

MR. FAHY: The draft is probably my copy and then there's writing on it so it's -- this document is not my copy, someone had it afterwards.

MR. CHERTOFF: The typed portion is what you prepared?

MR. FAHY: I would say that's a good guess. You know, this looks like, without reading each and every word, this looks like a copy that I had drafted, yes.

MR. CHERTOFF: You remember you did a draft, right?

MR. FAHY: I did a draft, absolutely.

MR. CHERTOFF: On Page 8 of the draft there's a paragraph that says, "I believe the time has come to spend sufficient resources to develop and conduct a trustworthy violator survey. The State Police report to me that the number of stops involving black motorists on the southern portion of the Turnpike, patrolled by troopers assigned to the Moorestown station, remains near the level reported in the Soto case. This figure is also higher than that reported in other State Police stations in this state, including those along the Turnpike."

Did you write that?

MR. FAHY: Absolutely, sir.

MR. CHERTOFF: And you got that information from whom?

MR. FAHY: Well, I probably got the information on the violator survey part from my own head. Since my first memo in -- was '93 that I said we need a violator survey.

MR. CHERTOFF: I'll be even more specific so there's -- the sentence, "The State Police report to me that the number of stops involving black motorists on the southern portion of the Turnpike, patrolled by troopers assigned to the Moorestown station, remains near the level reported in the Soto case." Where did you get that from?

MR. FAHY: From the State Police and it wouldn't surprise me if I called Tommy Gilbert on the phone and asked him if those were the numbers.

MR. CHERTOFF: And the phrase, "This figure is also higher than that reported in other State Police stations in this state, including those along the Turnpike." Where did you get that from?

MR. FAHY: Probably Tommy Gilbert.

MR. CHERTOFF: The same conversation?

MR. FAHY: Probably.

MR. CHERTOFF: So what was the conversation?

Did you call him up and say, hey, Tommy, in substance, hey, Tommy, do you happen to know offhand what the numbers are running like now in '95 and '96?

MR. FAHY: Well, I was familiar with the fact that Internal Affairs and someone in State Police was monitoring the compliance rate involving SOP F3. And as they monitored that compliance rate -- because remember, in Pedro Soto we only had one-third of the data. I was getting information it's going up now to 75, 80, 90 percent and that the numbers are running about the same. I can be criticized, sir, for not asking for a report in writing. I didn't think there was -- they hadn't gone through a year's cycle. I didn't think they had some final report.

MR. CHERTOFF: So can we now agree actually that, in fact, in 1996 you were being kept informed by the State Police about the way the numbers were running in terms of stops down in Moorestown?

MR. FAHY: Generally the numbers.

MR. CHERTOFF: So you were being told about that?

MR. FAHY: You asked me very specific questions earlier about complaints by a trooper. I didn't have that in detail. Generally, sir, as I go would go over to State Police from time to time, remember I worked on a lot of other cases, they would say the compliance numbers are up and the numbers are running about the same.

MR. CHERTOFF: And again, in your meetings with the Attorney General's Office in ninety -- I'm sorry, on December 9th and December 24th of '96 or in any conversations with Mr. Waugh or anybody from the Office of the Attorney General, did you discuss this fact about how the numbers were running with them in connection with the fact that there's now going to be a Department of Justice investigation?

MR. FAHY: It wouldn't surprise me if it came up. I don't recall it specific, but it --

MR. CHERTOFF: Generally. Generally.

MR. FAHY: Probably the same way generally I heard it at the State Police without a report. I probably generally related it at a meeting. Probably in December, the first meeting. Maybe in the second meeting. It's not secret about it.

MR. CHERTOFF: What did they say? Because let me step back. These are the numbers which you had -- whether you agreed or disagreed, there was a Superior Court Judge who found those numbers sufficient to render an adverse ruling, right?

MR. FAHY: Yes, and we disagreed with that. Yes.

MR. CHERTOFF: But whether you disagreed or not, you had a Judge make a finding with respect to that, right?

MR. FAHY: Yes.

MR. CHERTOFF: But when the Judge made the finding, you had to do it with old statistics, right?

MR. FAHY: Yes.

MR. CHERTOFF: So obviously, if you're going into a new investigation or a new review, isn't kind of the first thing you'd want to know, are we still as bad off as we were back then or can we go into Washington and say, hey, you know what? that Soto case that you're relying upon, that's ancient history. It's much better now.

MR. FAHY: No -- you've had your chance to do a simple hypothetical, let me answer as an attorney who's dealing with the issue for those years. Those years. The stop rate on the southern end of the Turnpike was around 35 percent. The defense was positive that the number should be 15 percent. I wanted to have a violator survey done. I don't know what the right number is down there and I don't know -- the numbers are still running that way now that I hear through the office even with the U.S. Department of Justice looking at it. What is the right number for that part of the Turnpike? I haven't a clue, sir.

MR. CHERTOFF: So you thought it was important to do a violator survey right away, right?

MR. FAHY: Absolutely. I've been recommending it for years.

MR. CHERTOFF: When was the violator survey first instituted by the Department of Law and Public Safety?

MR. FAHY: I don't think they've done one to this day.

MR. CHERTOFF: So between 1996 when you have a Civil Rights Division investigation and the numbers are a big issue and your response is hey, these numbers may not mean much because we need a violator survey, so let's do one and then --

MR. FAHY: No, I --

MR. CHERTOFF: Wait a second. And then five years go by and there still hasn't been one, right?

MR. FAHY: Just so the Committee understands, sir. It's not me that says we need a violator survey. I get that from talking to experts. But more importantly, I get that from the court decisions. The Curtis Kennedy decision says, "Criticize the Public Defender for not having a violator survey." You have to measure -- statistics are only valid when you measure them involving persons that are similarly situated. And that's what the court said. And in regards to a violator survey, the New Jersey Appellate Division said you need one to make an --

SENATOR LYNCH: Mr. Chairman, may I interrupt? I mean this gentleman professes to be a trial lawyer and he knows that his answers are totally unresponsive and they wander off repeatedly. It's getting very difficult to stay with the line of questioning for Mr. Chertoff and for us to understand.

SENATOR GORMLEY: Not only Senator Lynch, but by the reaction of the entire Committee. You're going to have to master yes and no. And these are not -- no, don't interrupt me. Don't do that. You're going to master it. This is very important. Mr. Chertoff is not trying to put words in your mouth. We're trying just to get the facts on the table. There obviously are occasions when you have to go beyond yes and no, but we don't need the long dialogues that are unrelated to that sentence or sentences that might be related to that yes or no answer. No one's trying to put words in your mouth. We're trying to get the facts on the table. No one's being disrespectful of your position or the fact that there has been a lapse in time since you've gone to these meetings or done these memorandums. Please be more focused in your answers. You have an enormous history in this issue and you can talk a lot about it and no one's trying to be disrespectful to that knowledge that you have. But please focus if you can. You've got to focus on yes and no and you've got to be more direct here. And no one is trying to tell you to put words in. If you don't remember, "I don't remember." If you don't know, you don't know or it didn't happen. But we don't need the history of the Western World for every question.

Mr. Chertoff.

MR. CHERTOFF: All right. So my question for you is this now. Did you discuss the need for a violator survey in your meetings with the Attorney General and the others in that office in December or in any oral conversation with anybody from the Office of the Attorney General in December?

MR. FAHY: I don't know if it was December, sir. But I certainly did it in January and I have memos in the file that say that.

MR. CHERTOFF: But no violator survey has been inaugurated to the present date as far as you know.

MR. FAHY: I answered that no.

MR. CHERTOFF: Now, with respect to these passages that you wrote on Page 8 of your draft of the January 3rd letter, did there come a time you saw a later draft or the version that actually went out?

MR. FAHY: Did I see a final draft? I don't know if I saw it back in '97, I've seen it since then.

MR. CHERTOFF: Well, they didn't run the final draft by you?

MR. FAHY: No.

MR. CHERTOFF: In what you've seen since then, do you see that this language was stricken out?

MR. FAHY: Yes.

MR. CHERTOFF: Did anyone ever discuss with you why that was done?

MR. FAHY: No.

MR. CHERTOFF: Did you ever make a specific recommendation to the Attorney General about the need to do a violator survey?

MR. FAHY: Yes.

MR. CHERTOFF: And when was that?

MR. FAHY: It would have been in January of '97.

MR. CHERTOFF: And was there any response to that?

MR. FAHY: Yes and I...

MR. CHERTOFF: What was the response?

MR. FAHY: Well, the response comes in a context. I explained to the Attorney General, the way I was trying to explain a few minutes ago, of the complexities that we encountered with regard to violator surveys. We went to the New Jersey Institute of Technology. We went to the Center for Forensic Economic Studies. They told us about the difficulties in doing a violator survey. The factors that you would have to become involved with and he -- I don't know that he said that much. He understood that it wasn't going to be such a simple task and -- but those conversations had happened throughout several administrations.

MR. CHERTOFF: But I'm not sure I understand. Is it that you said we ought to do one or you said it's too complicated to do and threw your hands up? Which was it?

MR. FAHY: Sir, I personally wanted to do one. I wanted to do one and made that recommendation to several Attorney Generals. For whatever reasons they chose to, maybe part of the --

SENATOR LYNCH: Mr. Chairman, the question was asked --

SENATOR GORMLEY: Excuse me. Let me, if I might. Try answering me.

MR. FAHY: Repeat the question and I'll answer it.

SENATOR GORMLEY: Answer this yes or no. Did you recommend Peter Verniero to do a violator survey, yes or no?

MR. FAHY: Yes.

SENATOR GORMLEY: Thank you.

MR. CHERTOFF: What was his response?

MR. FAHY: I tried to explain. I don't know that there was a response. He may have understood the issues that I explained about the violator survey. He may have understood --

SENATOR GORMLEY: Excuse me. Do you

recall --

MR. FAHY: I said I don't recall.

SENATOR GORMLEY: Excuse me. Do me a favor. Do you recall anything that Peter Verniero said after you said to him to do a violator survey? Just what he said. If you don't remember anything, then you don't remember anything.

MR. FAHY: Not specific words.

SENATOR GORMLEY: But you do remember it and you said because of the problems that there was a need, you recommended a violator survey to deal with the problems that were coming up, correct?

MR. FAHY: Yes, sir.

SENATOR GORMLEY: Thank you.

MR. CHERTOFF: And you don't remember what he said, right? Or if he said anything.

MR. FAHY: I'm sure he said something, but I don't remember.

MR. CHERTOFF: Well, did he tell you to go ahead and start one up?

MR. FAHY: No, not to me.

MR. CHERTOFF: To anybody else?

MR. FAHY: Yes, and that's the answer. There were other people involved. He talked to the business administrator, Thomas O'Reilly. He came to us with -- he sent his people to meetings. So he may have had conversations with other people in the Department about the costs and things like that.

MR. CHERTOFF: As of a year later, over a year later in 1998, had there been a decision made to start a violator survey?

MR. FAHY: I told you, sir, earlier, there has been no decision made to this day to do a violator survey that I know of.

MR. CHERTOFF: A year and a half later in May 1998, did you recommend again to the Attorney General to do a violator survey?

MR. FAHY: I wasn't really that involved in the issue that --

MR. CHERTOFF: Well, didn't you send him a memo on May 26th, 1998 saying "violator survey"?

MR. FAHY: Yeah, but I wasn't -- I think that I got a call down that said what about these violator surveys you talked about before? Could you tell me what they involve again? And I wrote a short memo to him telling him what they involved again.

MR. CHERTOFF: Did you indicate that there was -- that your position was that a traffic survey is too simplistic and that you wanted to have a violator survey in addition to or instead of a traffic survey?

MR. FAHY: My memo speaks for itself, probably. What I was thinking of is maybe a speed survey.

MR. CHERTOFF: Do you know why you revived this issue or this issue became revived to you in May of 1998 after a year and a half?

MR. FAHY: I probably got a call from either -- was Alex still there? either Alex or Peter Verniero saying can you give us information on the violator survey again?

MR. CHERTOFF: Do you know whether this had to do with the fact that the Hogan and Kenna shooting had occurred about a month before?

MR. FAHY: I have no idea, sir.

MR. CHERTOFF: Was there any information you had about violator surveys in May of 1998 that you didn't have in January of 1997 when the Civil Rights Division investigation first surfaced?

MR. FAHY: Can you repeat? I'm sorry, I

didn't --

MR. CHERTOFF: In May of 1998, did you have more information about a violator survey than you had in January of 1997 when you talked about it back then with the Attorney General?

MR. FAHY: Me personally? I don't think so.

MR. CHERTOFF: Sir, do you know why there was a revived interest in this in May of 1998?

MR. FAHY: I think in my deposition I said that maybe a meeting with the Black Ministers, maybe. I don't remember.

MR. CHERTOFF: Let me ask you this. Was it

-- I mean I guess it's fair to say that in the Soto litigation, even up to the Appellate Division, the consistent position that you took was that the statistics weren't really worth much because you didn't have a baseline violator survey, right?

MR. FAHY: That's what our expert advised, yes.

MR. CHERTOFF: And you'd agree with me that in a way one way to avoid ever coming to grips with the problem is if you never have the violator survey, then I guess the statistics are never really worth very much, right? Is that a fair statement?

MR. FAHY: I'm not going to conclude that; if you want to.

MR. CHERTOFF: Would you agree with me that if you had a violator survey, that would finally provide a baseline that would allow you to analyze the proportion of stops in a way that you would find to be meaningful?

MR. FAHY: It might help. And at the risk of being reprimanded, the experts explained to us that a violator survey is not an easy thing to do. Right now they're talking about doing a simple speed survey. But every expert we talked to, all the experts at New Jersey Institute of Technology and at the Center for Forensic Economic Studies, that this isn't something that's been done that we can go to some -- pull out of a book and here's how you do a violator survey.

MR. CHERTOFF: So did you say to the Attorney General either in January of '97 or at any other point in time, you know, this is just too hard to do, we can't do it?

MR. FAHY: No, I would have preferred to do one.

MR. CHERTOFF: And you understood that by doing one, you finally then provide a basis to measure the stop data in order to reach some conclusions, right?

MR. FAHY: It would have been a lot better than the Public Defender study, I would think, that the experts came up with, yes.

MR. CHERTOFF: Now, did the experts say, by the way, you can't do it and it's impossible to do?

MR. FAHY: No, I'm sure if we hired them and paid the money, they'd come up with something.

MR. CHERTOFF: And did you understand, by the way, that with respect to consent-to-search data, you wouldn't have to use a violator survey because your baseline there would be the number of people of each race that were stopped?

MR. FAHY: Consent to search and stop are two different issues, sir.

MR. CHERTOFF: Right. Did you ever consider a consent-to-search -- an analysis of consent-to-search information?

MR. FAHY: Oh, over the years many times. Sir, over the years there was consideration of arrest information, but the studies -- the study to do regarding consent to searches or arrests was discussed as being much more difficult because a violator survey would be easier, you could determine the number of people speeding. That would be a staring point. But if you have to try to determine the number of people traveling down the highways with weapons or guns and -- that was discussed as a much more difficult study.

MR. CHERTOFF: Well, I don't know, Mr. Fahy, could you do this? If you knew the ethnic background of everybody who was stopped -- well, let me step back. You'd agree with me that the people who were asked to consent to search are drawn from the pool of people who were stopped, right? Is that fair to say?

MR. FAHY: Yeah, you have to be stopped before you're asked to consent to search.

MR. CHERTOFF: Okay. So if you know the composition of the people who were stopped and you know the composition of the subset of those people who were asked to consent to search, you can actually compare those two numbers, right?

MR. FAHY: Sure.

MR. CHERTOFF: Was that ever suggested?

MR. FAHY: No.

MR. CHERTOFF: Did you ever have a conversation with Tommy Gilbert about doing that?

MR. FAHY: No.

MR. CHERTOFF: Did it ever occur to you to do that?

MR. FAHY: No.

MR. CHERTOFF: Do you know -- you're aware now, I take it, that Sergeant Gilbert did exactly that analysis. He made a comparison -- he made a comparison with respect to the consent-to-search figures.

MR. FAHY: I know now that he did.

MR. CHERTOFF: And you knew the Maryland State Police, that was part of that case, right?

MR. FAHY: No, I don't know what went into that case.

MR. CHERTOFF: Well, you knew that the consent-to-search issue was the fundamental issue in that case --

MR. FAHY: Yes, but I don't know what study they did. I never read any study that they did.

MR. CHERTOFF: So when you were talking to the Attorney General about maybe doing a violator survey and the difficulties, did you raise any other -- any other ways that one might kind of come to grips with the problem to try to figure out if there's a problem or not?

MR. FAHY: Well, sure, there was -- I mean one thing the Attorney General was excited about was the fact that he was going to put cameras in the cars and he thought that would be a means of deterring any improper police action. And I actually said to him, I wasn't working on the issue then, but I said I wish I had thought of that. No one has ever thought about putting cameras in police cars.

MR. CHERTOFF: When was that?

MR. FAHY: I can't remember exactly when, sir.

MR. CHERTOFF: What year?

MR. FAHY: I didn't work on the issue. There was plenty of paperwork at the Criminal Justice -- not Criminal Justice, OAG, about the Attorney General deciding to put cameras in the police cars and he thought that would be a way of documenting proper or improper police action. He was excited about it.

MR. CHERTOFF: I want to, before I move on to Mr. Rover, I want to leave you with this question. If you -- was your general approach in dealing with this issue of profiling an approach of figuring out how to defend in the litigation context in the sense of, you know, how do we poke holes in the various types of way planners can put statistical cases together? Or was there ever a point in time you sat down with anybody from the Office of the Attorney General and had a discussion along the lines of here's how we can go about actually finding out if there is a statistical anomaly that requires further examination? Which was it?

MR. FAHY: Both. Me personally, sir, primarily I'm the trial lawyer assigned based upon the Office's position to go in and defend it. At the same time, I also am a proponent of saying we need better records and that I would like a violator survey. And I won't bore the Committee with the details, but it's in the record from my papers over the years, there were times when I would list different things that could be done maybe to address the issue. But, yeah, there were times when obviously I approached it as a litigator.

MR. CHERTOFF: And in December of '96, early '97, were these various things you listed about ways to approach the issue of profiling, did you have discussions about putting any of those into effect with anybody from the Office of the Attorney General?

MR. FAHY: Are you dealing only with Peter Verniero in '96?

MR. CHERTOFF: I said with the Office of the Attorney General, anybody in that office.

MR. FAHY: Sure, I talked to Debbie Poritz about some of it in '96 before she left. I talked to Peter Verniero about the violator survey.

MR. CHERTOFF: And again, with respect to the violator survey, we have established that nothing was done, a least as far as you know.

MR. FAHY: To this day, sir, I don't think a violator study has been done.

MR. CHERTOFF: What about Waugh? Did you speak to then Executive Assistant Attorney General Waugh?

MR. FAHY: Sure.

MR. CHERTOFF: Did he indicate he wanted to start a violator survey or do some other, come up with some other statistical method to see if there's a problem?

MR. FAHY: I don't think he was opposed to it.

MR. CHERTOFF: That's not what I asked you. My question was --

MR. FAHY: I talked to him but I don't recall specific words.

MR. CHERTOFF: Was there a --

MR. FAHY: I'm sure at some point there was a discussion but --

MR. CHERTOFF: Was there ever any action taken to put into effect any way in 1996 or 1997 of statistically determining in what you would consider a reliable way whether there was a disproportionate enforcement of the traffic laws with respect to the Turnpike?

MR. FAHY: Did it come to fruition? No.

MR. CHERTOFF: Were there even steps taken --

MR. FAHY: Yes, there were steps taken.

MR. CHERTOFF: What?

MR. FAHY: They sent me and members of the administrative staff, Tom O'Reilly, to go to New Jersey Institute of Technology and discuss what type of -- what a violator survey would entail. There were steps taken by the State Police to ensure that reporting numbers went up so if we ever did a study we would have better numbers. They sent me to the Forensic Institute in Philadelphia to talk about a violator study. So you understand, sir -- you know there was a comparison of two numbers and I thought steps were being taken to increase the actual data of the State Police and then maybe do a study and we could compare it. And that would have been -- that would have been better for us to do than to just rely on criticizing the Gloucester County study.

MR. CHERTOFF: But it didn't happen.

MR. FAHY: It never happened, sir.

MR. CHERTOFF: Now, Mr. Rover, you got involved in this in January of '97.

MR. ROVER: That's correct.

MR. CHERTOFF: You were asked to get involved by Mr. Waugh?

MR. ROVER: That's correct.

MR. CHERTOFF: And you were asked to become involved in terms of dealing with the Civil Rights Division investigation --

MR. ROVER: That's correct.

MR. CHERTOFF: -- or review?

And your point of contact in the State Police was Sergeant Gilbert?

MR. ROVER: That's correct.

MR. CHERTOFF: And did that remain true during the period of time that you functioned as the point person with respect to Civil Rights review?

MR. ROVER: That's correct.

MR. CHERTOFF: Now, you would then report to who?

MR. ROVER: I reported to Alex Waugh.

MR. CHERTOFF: That would be Alex Waugh, the Executive Assistant?

MR. ROVER: Yes.

MR. CHERTOFF: And to whom did he report?

MR. ROVER: I assume the Attorney General.

MR. CHERTOFF: Now, I'm going to show you just a series of documents. I want to see if you remember these. But while we're pulling them together, is it fair to say that one of your principal functions was to deal with the issue of gathering the information which the Civil Rights Division wanted?

MR. ROVER: Yes.

MR. CHERTOFF: And in doing that you would communicate through Sergeant Gilbert, correct?

MR. ROVER: Correct.

MR. CHERTOFF: And you also had communication with Sergeant Gilbert about the substance of what was being looked at by the Civil Rights Division, correct?

MR. ROVER: I don't know if I understand that question. What do you mean by that?

MR. CHERTOFF: You had communication with Sergeant Gilbert about the actual substance of what was going on with racial profiling that was the subject of this Civil Rights Division review, right?

MR. ROVER: I would imagine there were general discussions, yes.

MR. CHERTOFF: And you also gave advice to Mr. Waugh and to the Attorney General with respect to the Civil Rights review, correct?

MR. ROVER: In one instance I did, yes, sir.

MR. CHERTOFF: You prepared memos?

MR. ROVER: I prepared a memo.

MR. CHERTOFF: You interacted also with the Civil Rights Division lawyers?

MR. ROVER: Yes, I did.

MR. CHERTOFF: You were the point of contact again between the Department of Law and Public Safety and the U.S. Civil Rights Division?

MR. ROVER: That's correct.

MR. CHERTOFF: So you were kind of in the center of traffic, is it fair to say, between the Civil Rights Division, the Office of the Attorney General and the State Police on this matter?

MR. ROVER: That's correct.

MR. CHERTOFF: And was there anybody else in the Office of the Attorney General that you worked with from January '97 until let's say February '99 besides the Attorney General and the Executive Assistant Attorney General?

MR. ROVER: I would say no. In one instance I had to make contact with Dave Hespe. I think Alex Waugh had left. But barring that, prior to that it was all Alex Waugh.

MR. CHERTOFF: So it would be fair to say that within the Office of the Attorney General, this issue of the Civil Rights review was actually dealt with by very, very small group of people.

MR. ROVER: That's correct.

MR. CHERTOFF: Now, just to show you some of the documents that you were involved with. I'm going to show you -- I think you have before you W-17, which is OAG805. W-21, which is OAG817. W-22, which is OAG808. Take a look at those.

The first one is February 5th, 1997. It's a memo to Alex Waugh from George Rover.

The next is February 6th, 1997. A letter from George Rover to Mr. Posner of the Civil Rights Division.

The next one is a fax, 2-6-97, to George Rover from Mark Posner.

I think those are the three I've picked.

MR. ROVER: Yes.

MR. CHERTOFF: Do you have those in front of you?

MR. ROVER: Yes.

MR. CHERTOFF: Now, let me just take you through those. With respect to W-17, this is a memo you prepared for Alex Waugh to kind of summarize the major issues that have been raised in a previous conference call with the Department of Justice, right?

MR. ROVER: That's correct.

MR. CHERTOFF: Was Mr. Waugh actually on a conference call?

MR. ROVER: Yes.

MR. CHERTOFF: Now, as of this point in time, you were aware of the fact there were other investigations going on in other jurisdictions involving the issue of racial profiling, correct?

MR. ROVER: I believe Sergeant Gilbert advised me that there was something going on in Illinois and something going on in Maryland.

MR. CHERTOFF: Let me ask you. Before you got involved with this assignment, did you sit down with Mr. Fahy and get briefed or prepared from a transition standpoint so you understood what was going on?

MR. ROVER: I think I might have had one or two conversations in a meeting with Alex and Jack. But when I first became involved in this, I was in the Division of ABC and Alex indicated to me my role would be limited to producing documents to the Department of Justice.

MR. CHERTOFF: Did you become aware from talking to Mr. Fahy that there was a Maryland consent decree involving consent-to-search statistics?

MR. ROVER: The best of my recollection is that came to my knowledge from Sergeant Gilbert.

MR. CHERTOFF: When did that come to your knowledge from Sergeant Gilbert?

MR. ROVER: I believe there was an early mention of it sometime in February and then it became near the end of February I think I got more substantive information.

MR. CHERTOFF: Okay. Tell us about --

MR. ROVER: That's to the best of my recollection.

MR. CHERTOFF: Okay. Tell us about the early mention in February from Sergeant Gilbert about the Maryland case and then the more substantive information in late February.

MR. ROVER: With respect to the first conversation, I think he just mentioned to me that there was a Maryland case. And again, coming into this I had never done anything related to profiling, on racial profiling. And I think it was just a mention that something has gone on in other jurisdictions.

MR. CHERTOFF: And then what happened? Then tell us about the later, more substantive conversation.

MR. ROVER: I believe sometime near the end of February I had a conversation with Thomas Gilbert. I was responding to requests for documents from Mr. Posner at the Department of Justice regarding I think warnings and tickets for a particular -- for 1996 and 1995, the sum amount of those warnings and tickets. And in that conversation he then went into some detail about the Maryland case to me.

MR. CHERTOFF: And what did he tell you?

MR. ROVER: He described generally the Maryland case and advised me that the consent-to-search numbers in the State of New Jersey were in the same ball park as those in Maryland.

MR. CHERTOFF: And did he explain to you the significance of the consent-to-search numbers in Maryland, that is in the basis for a consent decree?

MR. ROVER: Yes. I think he indicated to me that the Maryland case was based upon the consent-to-search numbers.

MR. CHERTOFF: And he told you that the -- in substance he told you that the consent -- that he had done an analysis of the consent-to-search numbers with respect to some of -- of the Cranbury barracks and the Moorestown barracks on the Pike?

MR. ROVER: What I recall from the conversation is he told me, he described the Maryland case and then explained to me that the New Jersey numbers were in the same ball park. I don't recall him specifying a lot of numbers and exactly where they came from, but he did say that New Jersey numbers were in the ball park.

MR. CHERTOFF: And did you understand that he was communicating to you that that was a source of concern to the State Police because they believed that that was -- they were going to be vulnerable because of the comparability of the statistics in New Jersey and Maryland?

MR. ROVER: Yes. I think he mentioned that there was an appearance issue here and I think it would be fair to say that he used the word, you know, we would be concerned about that.

MR. CHERTOFF: Did he ask you to report this to Mr. Waugh?

MR. ROVER: Yes, he did.

MR. CHERTOFF: Did you report it to Mr. Waugh?

MR. ROVER: Yes, I did.

MR. CHERTOFF: What did Mr. Waugh say to you?

MR. ROVER: I can't recall the conversation. I went through -- I'm sure I went through with what -- and described what Sergeant Gilbert told me and I related to Alex Waugh and I can't remember his reaction or -- I just don't remember exactly what his response was.

MR. CHERTOFF: Did he indicate to you or did you leave with the belief that he understood what you were saying?

MR. ROVER: Oh, yes.

MR. CHERTOFF: Did he ask you to conduct any follow-up?

MR. ROVER: No, he didn't.

MR. CHERTOFF: Did you ask Sergeant Gilbert whether he had actually a written document that summarized the statistical analysis?

MR. ROVER: No, sir, I did not.

MR. CHERTOFF: Did Mr. Waugh ask you to get any document?

MR. ROVER: No, sir, he did not.

MR. CHERTOFF: Is there some reason you didn't ask for a document?

MR. ROVER: Quite frankly, and obviously I've been trying to think about this question for a while, I had just been on a project maybe less than a month and I was a Deputy Attorney General in the Division of ABC and when I obtained -- when I was assigned to this assignment, I was told by Alex, "You're going to respond to requests from the Justice Department and no free-lancing, meaning all I want you to do is focus on that. If they have any substantive questions, get back to me." And the no free-lancing meant don't do anything else. Just focus on that.

MR. CHERTOFF: So are you telling us that you understood that your direction from Mr. Waugh was that you were not to make any decisions except by clearing it through him?

MR. ROVER: That's correct.

MR. CHERTOFF: Is that, in fact, the practice that you followed when you were handling this matter involving the Civil Rights Division?

MR. ROVER: Yes. Anything substantive, that's exactly correct.

MR. CHERTOFF: Is it fair to say that anything you learned from Sergeant Gilbert you reported to Mr. Waugh?

MR. ROVER: I would say generally, yes.

MR. CHERTOFF: Is it fair to say that you sent Alex everything you had and when you were with Alex you'd tell him everything?

MR. ROVER: I would say yes.

MR. CHERTOFF: And is it your position before the Committee that in terms of decision-making about what should be pursued or not pursued, you didn't make decisions, you simply passed the question up to Mr. Waugh and he made the decision and told you what it would be?

MR. ROVER: Obviously any significant decision. I was given instructions no free-lancing and you talk to me. And I followed those directions.

MR. CHERTOFF: So that with respect to the issue of asking for the documents or any documents underlying Sergeant Gilbert's discussion of the Maryland statistics, Mr. Waugh didn't tell you to get it so you felt you didn't need to get it?

MR. ROVER: Mr. Waugh did not tell me to get it and it didn't register to me to get it, yes.

MR. CHERTOFF: All right. Now, just to go back over the documents we talked about, which are still in the period of February. This first memo to Alex Waugh on February 5th summarizes this January 30th phone call and talks about the, among other things, the Illinois State Police case, correct?

MR. ROVER: Yes.

MR. CHERTOFF: And again, would this have been around the time you would have talked to -- had the first conversation with Sergeant Gilbert about these other state cases?

MR. ROVER: It would make sense, yes.

MR. CHERTOFF: Now, what was your understanding of what Mr. Waugh did? Was it your understanding or did Mr. Waugh ever tell you that he would pass your memos up the line to the Attorney General?

MR. ROVER: He never told me that, but normally when someone asks me to summarize a telephone conversation that they participated in, it normally signals to me that they're doing that so it can be sent to somebody else.

MR. CHERTOFF: At the top of this document is a handwritten notation. Is that Mr. Waugh's handwriting?

MR. ROVER: I believe it is.

MR. CHERTOFF: And it says to "PV, FYI, I have asked DAG Rover to prepare an options memo for our review and discussion." Were you asked to prepare that?

MR. ROVER: Yes, I was.

MR. CHERTOFF: And when did you actually prepare and send it up?

MR. ROVER: There was a document that I think it's an April 22nd document.

MR. CHERTOFF: Okay. This is dated February 25th, '97. You believe you responded to this in a memo that you prepared in April of '97?

MR. ROVER: Yes. I had a number of discussions with Alex. He wanted to talk to me before I wrote anything. He wanted to discuss what the options memo would incorporate. And yes, it resulted in the April 22nd.

MR. CHERTOFF: Okay. Tell us about those discussions you had with Alex Waugh regarding the April 22nd memo.

MR. ROVER: I don't remember how many specific discussions there were. As I said, Alex Waugh wanted to speak to me about what would be in the memo before I started writing it and two issues came to my attention. I believe I had mentioned these issues to Alex I think prior to this 2-25 date, and that's what prompted him to say, you know, maybe we need a memo on this.

MR. CHERTOFF: What were the issues?

MR. ROVER: There were two issues. One issue was the issue of the training material used by the Drug Enforcement Agency and that impact on the New Jersey State Police.

And the second issue, which we all know, is the use of consent-to-search documents and how they would be characterized.

MR. CHERTOFF: Now, tell us about that discussion with -- or those series of discussions with Mr. Waugh. What was the back and forth? What was the issue you all discussed?

MR. ROVER: I don't remember specifically the issues that were discussed. The only thing I can refer to would be the actual memo itself, that we discussed the various twists and turns of the issues and that we came to an agreement that these two issues and the way they were presented in the memo were generally what he expected to be in the options memo.

MR. CHERTOFF: Well, at the time you started to have discussions with Mr. Waugh about the consent-to-search issue, this would have been sometime after the end of February 1996, right? Because we can tell from the --

MR. ROVER: Nineteen ninety --

MR. CHERTOFF: I'm sorry, 1997.

MR. ROVER: Right.

MR. CHERTOFF: Because we can tell from the memo, from the note on the memo that sometime at the end of February '97 Mr. Waugh asked you to put together a memo, right?

MR. ROVER: Correct.

MR. CHERTOFF: So that your discussions with Mr. Waugh would have taken place after you had your more substantive discussions with Sergeant Gilbert concerning the consent-to-search data being, as you put it, in the same ball park as the consent-to-search data in Maryland?

MR. ROVER: Yes. I don't think I could have written what I wrote in the April 22nd memo unless it was based on the second conversation with Sergeant Gilbert.

MR. CHERTOFF: And is it fair to say, therefore, that in your conversations with Mr. Waugh, there was discussion or at least an understanding that the consent-to-search figures in New Jersey were problematic because of the relationship between them and the consent-to-search figures which led to the Maryland consent decree?

MR. ROVER: I want to say yes. The word "problematic," I just want to be careful. I think they were a matter of concern because they were similar to Maryland.

MR. CHERTOFF: And I take it it was also understood that there was a difference between the stop data, which had been the subject of the prior, let's say, Soto case and the consent-to-search data which really deals with a different stage in the process, right?

MR. ROVER: Yes. I primarily at the time did not factor too much in with the stop data. It was mostly focused on here's a consent-to-search issue and here's the Maryland case. There is the concern.

MR. CHERTOFF: Now, when we talk about a concern and we've heard people say sometimes well, you know, this is only -- even with consent to search, it's only statistics, it's an appearance issue. You don't really have a full picture until you actually look at the individual cases and understand the individual circumstances that affected each decision to get a consent to search. Is it fair to say that you heard that or you heard that discussion in the course of your conversations with Mr. Waugh?

MR. ROVER: Yeah, and I'm sure that that would have been the position of Sergeant Gilbert also.

MR. CHERTOFF: In any of those discussions in this period of time did anybody suggest well, let's take it to the next step? Let's go out and look at the consent-to-search cases and actually look at the individual files, figure out what the basis was for the consent to search and see when we go to that next level whether it supports or refutes this appearance, you know, prima facie, of racial profiling?

MR. ROVER: A very good question. The answer is no.

MR. CHERTOFF: Also, just to make it clear for the record, because there's some confusion, we'll talk about an appearance. In fact, in the law that governs issues of discrimination, is it fair to say that it is really standard legal practice that in any case involving allegations of discrimination involving a broad class of people, first you begin with statistics and at a certain point those statistics raise what they call kind of a prima facie case or a case that is at least presumptively one of discrimination and then you either have to rebut that or explain it away by looking at the underlying circumstances?

MR. ROVER: I'm not an employment lawyer, but obviously what you say makes sense in that it gives you an early picture of what --

MR. CHERTOFF: So that --

MR. ROVER: -- may be occurring, not that it's definitely occurring, but what could possibly be occurring.

MR. CHERTOFF: So that although statistics, although it is correct to say that statistics do not conclusively prove that there's a problem, it is also fair to say in the law that it is well recognized when you have unbalanced statistics it is cause to go to the next level of analysis and it is enough to trigger a more intense scrutiny of the underlying practices?

MR. ROVER: Again, not -- I'll accept your representation regarding what the law says, but I would imagine that the law does say that, I just do not do employment law. But I would imagine that that's the case.

MR. CHERTOFF: I'm asking Mr. Fahy. Do you disagree with the way I'm characterizing in general the way these cases are done?

MR. FAHY: No. With employment law cases, race cases like that, yes, absolutely, sir.

MR. CHERTOFF: All right. So you have these discussions with Mr. Waugh and I think you've indicated to us there was no direction to you or to Sergeant Gilbert to go do any underlying analysis, correct?

MR. ROVER: That's correct.

MR. CHERTOFF: And there was also a recognition that the numbers on their face with consent to search were a cause for concern, correct?

MR. ROVER: Yes.

MR. CHERTOFF: In this period of time did Sergeant Gilbert also convey to you that he had done an analysis with respect to the Soto case, the Gloucester County case, where he had looked at the search statistics as it related to the troopers who were involved in that case?

MR. ROVER: I don't recall him doing that. I just do not have a recollection of that. I don't recall that.

MR. CHERTOFF: He may have done it, he may not have done it?

MR. ROVER: He may have done a little bit. It's possible that I got a bit of that, but as far as a lot of detail, I think I would remember a lot of detail. But he may have said a little bit more than I specifically recall.

MR. CHERTOFF: Did he indicate to you, again in general, Sergeant Gilbert in these conversations in let's say between February and April of '96, that in his view or the view of the State Police, these consent-to-search figures put the State Police in substance in a bad spot?

MR. ROVER: Two words -- two phrases stick out when I recall my discussions with Tom -- Sergeant Gilbert and that is the appearance issue and concern.

That's what I recall.

MR. CHERTOFF: Do you remember talking to Captain Blaker? I don't know if was a Captain then, but Captain Blaker at the gas pump back at that period of time about this issue?

MR. ROVER: The gas pump?

MR. CHERTOFF: Yeah. You used to gas up your car at the same place that Captain Blaker did?

MR. ROVER: At times. I do not recall.

MR. CHERTOFF: Do you remember a conversation with Captain Blaker anywhere concerning this issue with respect to consent to searches?

MR. ROVER: I don't recall -- Captain Blaker? No.

MR. CHERTOFF: In general, when Sergeant Gilbert conveyed information to you, was it your regular practice to convey it up to Mr. Waugh?

MR. ROVER: Yes.

MR. CHERTOFF: Now, I'm going to come to that April 22nd memo in a second, but I just want to -- on these other documents, is it fair to say when you corresponded with the Civil Rights Division you would typically pass copies of that onto Mr. Waugh?

MR. ROVER: I believe early on I did, yes.

MR. CHERTOFF: And to your knowledge did he pass those up to Attorney General Verniero?

MR. ROVER: I didn't know at the time.

MR. CHERTOFF: Did you subsequently learn that?

MR. ROVER: Well, looking at the documents now it appears that he did.

MR. CHERTOFF: Now, I want to show you -- I'm sorry. I want to show you what has been marked as exhibit W-24. It's OAG825. It is a memo to Alexander Waugh from you dated March 3rd, 1997 and it's got a big strike down the center marked "Confidential."

MR. ROVER: Just wait one second.

MR. CHERTOFF: Okay.

(Pause)

MR. ROVER: I reviewed it, sir.

MR. CHERTOFF: Okay. Did you prepare this again as a summary of your conversation with someone from the Civil Rights Division to pass on to Alexander Waugh?

MR. ROVER: Yes.

MR. CHERTOFF: And in that letter is there a discussion about the issue of beginning a traffic violator survey and did you indicate that while there had been some general discussions on the issue, no specific decision had been made as of that point?

MR. ROVER: Yes.

MR. CHERTOFF: And did the Civil Rights Division lawyer indicate to you that he'd like to send a letter detailing the methodology which the Department of Justice would want to have -- be interested in in evaluating State Police enforcement data?

MR. ROVER: Yes.

MR. CHERTOFF: Was this the notion of picking certain days historically, a sample of certain days and analyzing those?

MR. ROVER: With respect to the dates?

MR. CHERTOFF: Yeah.

MR. ROVER: Yes.

MR. CHERTOFF: So they're two separate issues. One was you indicated at this point you had told the Department of Justice you still didn't have a clear sense of what you wanted to do with the violator survey, correct?

MR. ROVER: That's correct.

MR. CHERTOFF: And at the same time you indicated to them that because of the burdensomeness of doing a complete review of '95 and '96, you wanted to restrict the review to 30 sample days?

MR. ROVER: I didn't -- I didn't say that.

MR. CHERTOFF: Who said that?

MR. ROVER: I guess Alex told me that -- I can't remember who made that decision. I think there were a number of decisions made to cut back on the scope or the number of dates. And then I think Mr. Posner came back to me and proposed a particular number and I went back to Alex and I think he said that that number would be okay.

MR. CHERTOFF: So at any point in time in 1997 do you know whether there was any decision made to proceed with a violator survey?

MR. ROVER: I don't know of any decision that was made to pursue a violator survey.

MR. CHERTOFF: Now, Mr. Fahy, did you actually -- you didn't totally fade out of the issue of racial profiling in 1997, did you?

MR. FAHY: Pretty much I did. Occasionally if there was a meeting on something George got, they might call me up and ask my opinion. To give you an example like on these 30 days, I could have told George well, that's what we did in the prior litigation that I had. The two experts would come to 30 randomly-selected days. So you may want to talk to Justice about, you know, coming to an agreement, because otherwise you're dealing with a humongous volume of material. So if the experts agree on random days, that's fine.

MR. CHERTOFF: Did you continue to work on the Soto brief in 1997?

MR. FAHY: It was assigned to the Appellate Section, Jerry Simms. I helped with the statement of facts.

MR. CHERTOFF: So you did continue to work on it.

MR. FAHY: On the brief, yes.

MR. CHERTOFF: And did you actually analyze or make comments about the legal portion of it?

MR. FAHY: I reviewed it.

MR. CHERTOFF: Did you analyze and make comments about the legal portion of it, the legal arguments?

MR. FAHY: I might have. I don't -- it looked pretty good to me from what Mr. Simms had written.

MR. CHERTOFF: Did you have discussion with Mr. Waugh about the brief?

MR. FAHY: It was discussed all over the Department.

MR. CHERTOFF: Did you discuss it with Mr. Verniero?

MR. FAHY: I knew he read it and okayed sending it out. I don't recall a specific discussion.

MR. CHERTOFF: Did you have discussion with him about or a communication with him about whether the brief should be sent to DOJ in Washington?

MR. FAHY: I think we said that we would send them a copy.

MR. CHERTOFF: Let me show you F-22 for identification. It's a memo to Peter Verniero from you dated March 10th, 1997. That talks about the Appellate brief. Do you have that?

MR. FAHY: Yes.

MR. CHERTOFF: On the bottom in handwriting is the Attorney General responded, "John Fahy. Looks okay to me. After we file we may want to send a copy to DOJ in Washington."

MR. FAHY: Yes.

MR. CHERTOFF: Signed "Peter." Do you know what that refers to or why that would be?

MR. FAHY: I would think that he wanted to send a copy of the brief to Washington.

MR. CHERTOFF: For what purpose?

MR. FAHY: Well, to continue the discussions that he had about what our arguments were in the case.

MR. CHERTOFF: Was that in order to suggest to the Department of Justice that they ought to view the Soto decision as flawed and therefore that that ought to affect the way they went forward with their review?

MR. FAHY: I would think that would be part of it.

MR. CHERTOFF: Do you know if it was sent down to Washington?

MR. FAHY: I can't recall. I don't know that I sent it but...

MR. CHERTOFF: Now, I want to go back to you, Mr. Rover.

Do you know whether the Attorney General personally got involved in reviewing the actual specific dates for the survey or the sample that were requested by the Civil Rights Division?

MR. ROVER: Whether the Attorney General personally was involved?

MR. CHERTOFF: Yes.

MR. ROVER: I'm sure that I brought that information to the attention of Alex Waugh and I have no idea whether he talked to the Attorney General or not.

MR. CHERTOFF: Were you asked to review the suggested dates by the Civil Rights Division in order to comment and pass it up the line to Mr. Waugh?

MR. ROVER: I believe I was -- I think the Department of Justice said that they picked them at random and one of the issues was a common sense thought was what if there were, you know, 20 Fridays out of the 30? In other words, we wanted to see if they were distributed somewhat evenly. And in that respect I think I looked at what days of the week they were.

MR. CHERTOFF: Now again, I want to be chronological. We're going to come up to April 22nd. That's when you finally prepare the memo that's the kind of outcome of your discussions with Mr. Waugh about, among other things, the consent-to-search data, right?

MR. ROVER: Correct.

MR. CHERTOFF: But also in this period you were dealing with the issue of turning documents or potentially turning documents over to the government, correct?

MR. ROVER: That's correct.

MR. CHERTOFF: In this period of time in early 1997, did you run across a document that was an audit or a survey of the statistics of arrests at the Perryville station in Hunterdon County?

MR. ROVER: I believe, and I think I've testified, I believe sometime in the early part of '97 that came into my possession.

MR. CHERTOFF: And would you describe, summarize for us what that showed?

MR. ROVER: Offhand, I don't know if you have the document --

MR. CHERTOFF: Let me see if I can show it to you. Is it -- maybe G-5, which I think is already there. Maybe in front of Mr. Fahy.

SENATOR ROBERTSON: Is there another --

MR. CHERTOFF: I think it's April 24th, '96 from Detective Gilbert to Lieutenant Colonel Littles regarding preliminary statistical data, Hunterdon County, Perryville station. It's GC1399.

MR. ROVER: G-5, 001399?

MR. CHERTOFF: Yeah.

MR. ROVER: Okay. Yes.

MR. CHERTOFF: And did you -- this came into your possession. How did it come into your possession?

MR. ROVER: I can't recall. I think I testified that either Sergeant Gilbert or Jack Fahy gave it to me. I can't recall.

MR. CHERTOFF: And this list, if you look at the documents received before starting on the third page, this gives a breakdown of the ethnic background of people who were arrested during the year period that's covered from '94 to '95, correct?

MR. ROVER: Yes, it does.

MR. CHERTOFF: And it indicates, for example, that approximately -- my math isn't that great, maybe 40 percent of them are minority, is that correct? Sixty-eight out of -- 68 as opposed to 103 non-minorities. Actually, it's a little --

MR. ROVER: Which page are you on?

MR. CHERTOFF: I withdraw that. I'm looking at Page GC1401.

MR. ROVER: Right.

MR. CHERTOFF: It actually indicates that of the breakdown of people arrested in that period is 64 black, 27 Hispanic and approximately 78 white. That's the page marked GC1401. Do you see that?

MR. ROVER: Yes, I do. The race says -- oh, okay. This says 66 black, 103 white, two Asian.

MR. CHERTOFF: But then there's a subcategory for Hispanic so if you break it out --

MR. ROVER: Okay. So you're adding them in, okay. Yes, I see that.

MR. CHERTOFF: You were trying to determine whether this should be turned over, correct, to the Department of Justice?

MR. ROVER: I asked Alex whether it would -- should be turned over.

MR. CHERTOFF: And what did he say to you?

MR. ROVER: My recollection is he told me that it shouldn't be turned over and that it doesn't relate to the Turnpike.

MR. CHERTOFF: He said it should not be turned over.

MR. ROVER: That's my recollection.

MR. CHERTOFF: Now, when he says it doesn't relate to the Turnpike, in fairness I-78 is -- I mean I think everybody knows this but, for the record, I-78 is a different highway than the Turnpike.

MR. ROVER: Yes, it is.

MR. CHERTOFF: But you clearly brought this to his attention?

MR. ROVER: Yes. When I got possession of it, which I don't know what part of --

MR. CHERTOFF: Was there any discussion that you had about it besides what you've related?

MR. ROVER: I believe when it came into my possession it was as simple as Alex, you know, what should I do with this? And again, not to minimize my involvement, but I really was not up to speed on all this and I was looking for guidance as to what -- how it should be encompassed in the DOJ review.

MR. CHERTOFF: Now, let's go to this April 22nd memo. I'm going to show you W-27. It's OAG865. It's got a cover page of -- it says -- it looks like notepaper from Alexander Waugh and it's handwritten, dated 4-23-97 to PV and then the next page is a draft memo to Alex Waugh and Jack Fahy by George Rover and it's dated April 22nd, 1997.

MR. ROVER: I have that memo.

MR. CHERTOFF: Now, first of all, why did you address a copy of this to Mr. Fahy?

MR. ROVER: It would have had to have been at the request of Alex.

MR. CHERTOFF: Mr. Fahy, did you get this document?

MR. FAHY: I'd have to look at it, sir.

I would have assumed that I got this if my name is on it.

MR. CHERTOFF: Did you ever read it?

MR. FAHY: It looks very unfamiliar to me now.

MR. CHERTOFF: All right. Mr. Rover, this is a product of your discussions with Mr. Waugh, correct?

MR. ROVER: That's correct.

MR. CHERTOFF: And I want to focus you to Page 6. In the second full paragraph it says, "A second unrelated issue involves NJSP consent-to-search data." Right?

MR. ROVER: Yes, it does.

MR. CHERTOFF: Now again, to put this in context, this was the issue that had been raised to you by Sergeant Gilbert when he told you about the comparison he had made between Maryland and New Jersey, right?

MR. ROVER: Yes.

MR. CHERTOFF: And you understood when Sergeant Gilbert raised it that he considered it important because, in fact, he checked with you twice to make sure you had conveyed that to Mr. Waugh.

MR. ROVER: That's correct.

MR. CHERTOFF: In fact, what happened is he gave it to you. He told you to tell Alexander Waugh and then he asked you again whether you had done it.

MR. ROVER: That's correct.

MR. CHERTOFF: And you confirmed it to him.

MR. ROVER: That's correct.

MR. CHERTOFF: So you knew this was an important issue at least to Sergeant Gilbert because he had asked about it twice.

MR. ROVER: That's correct.

MR. CHERTOFF: Now, let's go through -- and again, you can't tell us why Mr. Waugh never actually asked for the underlying figures?

MR. ROVER: No, I can't.

MR. CHERTOFF: Now, let's go through the portion of the memo here, starting at Page 6. You indicate here that you're anticipating that USDOJ, while expressing interest in State Police traffic stop data is more interested in consent-to-search data. And you then indicate at the end of the paragraph you believe this information does not relate to the issue being examined by the USDOJ since it addresses post-stop law enforcement activity. Now, am I correct that what you're basically saying here is you anticipated DOJ would be asking for the consent-to-search data even though strictly speaking it was outside the scope of what they originally said they were interested in coming out of the Soto case?

MR. ROVER: I can only go by early contacts with the person from the Department of Justice and initially they asked I think in February for warnings and ticket summaries and it was generally limited to what appeared to be initial stop information. Early on. And I believe that that's where my focus was.

MR. CHERTOFF: And then you go on to say, "Why then do I believe that USDOJ's interested in this data? I anticipate that USDOJ will attempt to follow the same course of action pursued by plaintiffs in the Maryland case. The use of consent-to-search statistics is evidence of selective prosecution. In the Maryland action the plaintiffs successfully argued that the percentage of minorities subjected to consent searches supported a finding that the Maryland State Police engaged in selective prosecution." Now, this is, of course, what you had been told by Sergeant Gilbert, correct?

MR. ROVER: That's correct.

MR. CHERTOFF: And you say at the end of the paragraph, "What's very troubling is that the basis for the entry of the consent order was the fact that the Maryland State Police requested consent to searches from what the plaintiffs claim was a high percentage of minorities." And again, you got that from Sergeant Gilbert, correct?

MR. ROVER: Yes.

MR. CHERTOFF: Now, the next paragraph you say this. You say, "It's my opinion that these figures are irrelevant to the inquiry of whether law enforcement officers are engaging in selective prosecution. This information has nothing to do with the reason why a motorist is stopped initially, which is the basis of the USDOJ inquiry." Now, it is obviously self-evidently clear that consent-to-search activity is irrelevant to why people were stopped because it only happens after people are stopped. So that's pretty self-evident, right?

MR. ROVER: Yes. I think I could have expressed it a little bit better than I did though.

MR. CHERTOFF: But why was it your opinion that consent-to-search information is irrelevant in general to the question of selective prosecution?

MR. ROVER: As I just said, I think you can't read the first sentence without reading the second. And the sentences should be -- it should have been one sentence in essence saying it's irrelevant to initial stop information because it's post-stop. Certainly law enforcement officers can engage in selective prosecution in the post-stop context.

MR. CHERTOFF: So you would agree with me now that although consent-to-search data is irrelevant to why people get stopped, it can still be very relevant in a selective enforcement investigation?

MR. ROVER: It could be relevant, yes.

MR. CHERTOFF: Now, when you passed this on to Mr. Waugh, did he ever focus on that particular issue with you? Did you ever have discussions about that concept about whether it was relevant or not?

MR. ROVER: No, I did not. Not that I recall, I should say.

MR. CHERTOFF: Did he ever get back to you on that particular point about what the Attorney General's view was on that issue?

MR. ROVER: Not that I recall.

MR. CHERTOFF: Now, you then go on to say finally on the last page. "At the very least, we should state to USDOJ that if it wants to use this data as the indicator of State Police activity, that the USDOJ must be required to examine in each case the factual circumstances that resulted in the officer requesting the consent to search."

Now, is that consistent with what we said earlier? The numbers might be very suggestive, to make it conclusive you have to actually analyze the individual facts.

MR. ROVER: That's correct.

MR. CHERTOFF: At any point in time after you sent this memo, did anybody ever come back to you through Mr. Waugh or anybody else and say, tell the State Police we want them to pull the files on the consent to searches and we want to take a look at the underlying facts to see if there really is a problem?

MR. ROVER: No.

MR. CHERTOFF: Do you know if this memo was passed on to anybody else?

MR. ROVER: I now know that it was passed on to the Attorney General.

MR. CHERTOFF: Did there come a time within about a month after you did the memo that you were called to a meeting to discuss this issue at the Attorney General's Office?

MR. ROVER: This and other issues, yes.

MR. CHERTOFF: And that meeting was scheduled for May 20th, 1997, correct?

MR. ROVER: That's correct.

MR. CHERTOFF: Did you get --

MR. ROVER: Could I add just one point on the memo?

MR. CHERTOFF: Sure.

MR. ROVER: I just want to make it clear -- two points. First, I want to make it clear, on Page 8 I put in the memo "I am not," and I underlined the word "not" suggesting that we refused to provide the documents and I think it's important that we take notice of that. It's not like we're refusing to turn them over. There was never any discussion about that.

And the second aspect of it is the view -- the view here was since our position is that the consent-to-search statistics in and of themselves were not dispositive, do we talk to Justice ahead of time to try and let them know that that's kind of our position? Or do we wait until they raise it? And that's generally what this memo was discussing.

MR. CHERTOFF: And is that actually what you anticipated coming up at this meeting, that there was going to be -- well, there was an understanding that if the Department of Justice wanted this stuff, they were going to be able to get it, right?

MR. ROVER: Certainly.

MR. CHERTOFF: Was a discussion that you anticipated coming out of this memo about a way to convince the Justice Department either not to look at the consent-to-search data at all or to look at it only insofar as it might shed light on the stop data, but to try to deflect them away from using consent to search as a mode of analysis?

MR. ROVER: Well, I think since the State Police certainly did not want -- or the State of New Jersey did not want to enter into a consent order, and since the State Police did not believe they were engaging in unconstitutional conduct, I would imagine that if we could persuade the Justice Department to evaluate it in a way we felt was more probative, it would work -- it would be the position we would like them to take, although they could just say no, we're not going to do that.

MR. CHERTOFF: So that essentially sets the table for the May 20th meeting. Now, how did you learn about the May 20th meeting?

MR. ROVER: I don't know how I learned about the meeting. I know in discussions with Alex I indicated that, you know, we wanted to have a meeting and get people together on this, on this and other issues.

MR. CHERTOFF: And did there come a time you got an agenda about the meeting?

MR. ROVER: Yes, I did.

MR. CHERTOFF: Now, we're going to show you

-- we have multiple copies of the agenda marked W-29. It's GC2210, 973 and 974. And they're all marked and typed Department of Law and Public Safety, Office of the Attorney General, Interoffice Memorandum. Okay. Now, you recognize the typed agenda?

MR. ROVER: Yes, I do.

MR. CHERTOFF: Who prepared it?

MR. ROVER: I think Alex prepared it. I may have looked at it, a draft of it, but I think Alex prepared it.

MR. CHERTOFF: On the last of the documents, OAG974 it has some handwriting in it other than Alex Waugh's signature. Is that your handwriting?

MR. ROVER: Yes, it is.

MR. CHERTOFF: And does that reflect notes you took at the meeting of certain things?

MR. ROVER: I suspect -- I believe I might have written this before I went to the meeting, on my copy of the agenda.

MR. CHERTOFF: Did you also know going into the meeting that the Department of Justice had renewed its request for, among other things, consent-to-search forms relating to the 30 days that they were sampling from the Moorestown and Cranbury stations?

MR. ROVER: Yes. I believe a memo was sent to Colonel Williams on the 15th or something of March.

MR. CHERTOFF: So you knew going into the meeting that the consent-to-search issue was not going to go away because the Department of Justice actually renewed its request for it?

MR. ROVER: I think that's high-lighting it. I think no one thought that the Department of Justice was not going to pursue that. I think the renewed request was, we have the sample dates, you know, let's start thinking about pulling stuff together. But it wasn't a renewed request regarding the consent to searches. It was understood that Justice did want those.

MR. CHERTOFF: Now, who was at the meeting at the Attorney General's Office on May 20th that you remember?

MR. ROVER: Attorney General Verniero, Executive Assistant Attorney General Waugh, Jack Fahy, myself, Colonel Williams, Captain -- I think it's Captain Blaker and Sergeant Gilbert.

MR. CHERTOFF: And directing your attention to the portion of the agenda, this production of consent-to-search documents. That's the portion that relates to the Maryland case and the New Jersey case issues we've talked about, right?

MR. ROVER: Yes.

MR. CHERTOFF: And this correlates with the second part of your memo, right?

MR. ROVER: Yes, it does.

MR. CHERTOFF: Who did most of the talking at the meeting?

MR. ROVER: I don't know who did most of the talking. I know or I believe that the conversation began with Sergeant Gilbert I think because he knew the most about the case. And after that I don't know who else talked.

MR. CHERTOFF: What do you recall Sergeant Gilbert saying about the issue of the Maryland case and consent-to-search documents?

MR. ROVER: I can't remember specifically. I would imagine that he gave -- he did -- in essence what he did in my phone call which is he described the background of the case generally and talked about that the numbers in New Jersey correlated with that or in the same ball park which is a phrase Tom used. And that it was an issue of concern with the State Police.

MR. CHERTOFF: Did anybody else in the State Police echo that concern?

MR. ROVER: I can't recall. I'd be guessing. I would imagine they did but I'd be guessing.

MR. CHERTOFF: Now, was there a discussion at this portion of the meeting about your observation in the memo that if you're going to look at consent-to-search data to be conclusive, you have to look at the underlying files?

MR. ROVER: I don't recall that, but when I left this meeting I was fairly -- my recollection is when I left the meeting all of the issues were covered.

I can't specifically recall who said what about what.

MR. CHERTOFF: Was there some discussion about the fact that if you're going to look at consent-to-search data and you want to be conclusive, you really should look at the underlying files.

MR. ROVER: Again, I'm not trying to play games. I don't have a specific recollection, but given my memo and given this agenda, I would imagine that there was a discussion of that issue. It would just seem like it would have to be.

MR. CHERTOFF: Was there a discussion about the fact that -- or about whether it would be possible to get the Department of Justice to agree to use the consent-to-search forms only insofar as it might reflect on the initial stop, without getting into the consent-to-search issue as a separate basis for evaluating racial profiling?

MR. ROVER: I can't remember specifically, but considering the fact that subsequently when we turned to consent to searches over in November that was generally the position we took. I would imagine that that was discussed at this meeting.

MR. CHERTOFF: Was there a discussion about the fact that it was consent-to-search documents that had led to the Maryland and to the consent decree and whether it was possible or foreseeable that because of the comparability of the New Jersey statistics, the New Jersey Office of the Attorney General might have to agree to a consent decree? Did that concern come up?

MR. ROVER: Yeah, I would say that concern came up. I have a general recollection of that.

MR. CHERTOFF: And what was the response to that concern and who made that?

MR. ROVER: A particular response to that concern I don't recall. Specifically to that -- in other words, when that statement was made or that discussion occurred, I don't know if there was a particular response. I'm sure there was a discussion that the State would prefer not to enter a consent decree.

MR. CHERTOFF: Well, how was that put and who stated it?

MR. ROVER: I do recall the Attorney General, and I think I caught the tail-end of a remark saying, you know, we are not going to enter into a consent order.

MR. CHERTOFF: Was there a discussion at all about possible communication with the Department of Justice in Washington about something of Janet Reno or anything of that that you remember?

MR. ROVER: I've honestly looked at the transcripts of other persons who have testified in preparation for my testimony today and I just don't recall that. I just don't recall.

MR. CHERTOFF: At any point in the meeting do you remember anybody turning to Colonel Williams and saying point-blank, is there racial profiling?

MR. ROVER: I don't remember that.

MR. CHERTOFF: Did anybody say at the meeting

-- was there any discussion in the meeting of putting aside what position would be taken with the Civil Rights Division in the litigation and negotiation? Was there any discussion in the meeting about taking a look at either the stop data or the consent-to-search data and doing whatever would be necessary to actually make a determination from a management standpoint about whether there's a problem?

MR. ROVER: I have no recollection of that.

MR. CHERTOFF: As of this point in time, just so we have the table set, you have the Soto case up in the Appellate Division, right?

MR. ROVER: Yes.

MR. CHERTOFF: You have the Civil Rights Division in Washington knocking on your door, so to speak, correct?

MR. ROVER: Yes.

MR. CHERTOFF: So it's fair to say this is a front-burner issue?

MR. ROVER: Yes.

MR. CHERTOFF: And as far as you knew, it commanded the attention certainly of the Executive Assistant Attorney General and the Superintendent of the State Police?

MR. ROVER: Yes.

MR. CHERTOFF: There was debate about whether you could -- what kind of inferences you could draw from the statistics, right?

MR. ROVER: Yes. I think it was expressed in my memo, yes.

MR. CHERTOFF: At this meeting or any other meeting you remember attending in 1997, was there ever a discussion of how do we go about finding out if we have a real problem by doing whatever it takes in terms of statistical analysis or looking at files or doing interviews? How do we go about doing that? Was that discussed in this meeting or any other meeting you attended in '97?

MR. ROVER: That was not discussed. I would remember that because I would think they would have asked me to maybe assist in doing that.

MR. CHERTOFF: And nobody ever did?

MR. ROVER: No, sir.

MR. CHERTOFF: Now, Mr. Fahy, you were at this same meeting, right?

MR. FAHY: Yes, sir.

MR. CHERTOFF: Is your recollection consistent with what Mr. Rover has told us?

MR. FAHY: Basically. Again, I don't recall specifics. I remember that the Attorney General was not inclined to sign a consent decree. I don't recall specifics about numbers of consent to searches, but it was on the agenda, something may have been said about that. Anything else? Generally I would say I don't recall -- I don't recall the Colonel saying something to the Superintendent -- saying something to the Attorney General that was related in his testimony.

MR. CHERTOFF: I'm sorry, what don't you remember?

MR. FAHY: Wasn't there something that you asked me whether the Superintendent --

MR. CHERTOFF: I think I asked you whether the Superintendent was asked point-blank is there racial profiling?

MR. FAHY: I can't say that I recall that at this time.

MR. CHERTOFF: To close up the loop on this, there came a point in time back in November, later in November '97 that you finally did produce or indicate you were going to produce these consent-to-search documents to DOJ, right?

MR. ROVER: That's correct.

MR. CHERTOFF: And is that consistent with the view in this meeting the position you all took was that it was being turned over, not because the post-stop activity was relevant, but because in the documents, the consent-to-search forms, there's usually some kind of a statement about why someone was stopped in the first place?

MR. ROVER: Are you referring to a letter that --

MR. CHERTOFF: Yeah. It's a letter -- it's R-20. It's a letter of November 5th to Mark Posner from you with DOJ 5464 on the bottom.

(Pause)

MR. CHERTOFF: Do you see that?

MR. ROVER: One moment, please.

MR. CHERTOFF: Okay.

(Pause)

MR. ROVER: I've reviewed the letter.

MR. CHERTOFF: So am I correct -- first of all, you didn't produce -- you just produced the consent-to-search forms, right?

MR. ROVER: That's all that Justice requested.

MR. CHERTOFF: You didn't produce any actual underlying data or analysis of the forms, right?

MR. ROVER: No, sir.

MR. CHERTOFF: And consistent with what you had said occurred at the meeting on May 20th, the position taken was that the forms were being produced, not because consent-to-search was relevant, but because the forms might have some information on it relating to the initial stop, is that the position you took?

MR. ROVER: Yes. I believe the last sentence takes that position.

MR. CHERTOFF: Did you become aware again later in 1997 that there was increasing information becoming available through the State Police concerning statistics as it related to stops and searches and arrests?

MR. ROVER: The only other -- the only other information that jumps to mind is a 1996 Moorestown audit that came to my attention I think in July.

MR. CHERTOFF: Before we come to that, I want to ask you this. Was Sergeant Gilbert regularly keeping you informed about information that has been gathered by the State Police concerning ongoing review or ongoing monitoring of stops and searches in Moorestown and Cranbury?

MR. ROVER: My recollection during this time period is I obviously was interacting with Sergeant Gilbert in getting the documents necessary to satisfy the DOJ request. I don't recall him telling me that there were ongoing inquiries at that time.

MR. CHERTOFF: Are you disputing that he kept you informed or are you just saying you don't remember one way or the other?

MR. ROVER: In our conversations he could have mentioned something. I just don't recall him saying that. And if there were any -- if there was anything of significant detail, I think I would have remembered, but if it was -- it's possible if it was general information -- you know, it's possible, yes.

MR. CHERTOFF: Now, anything again, anything significant or material you passed up to Mr. Waugh?

MR. ROVER: That's correct.

MR. CHERTOFF: I want to be quite clear. Did you ever make a decision to hold to yourself any information you got from Sergeant Gilbert or anybody else relating to this matter and not pass it up to Mr. Waugh?

MR. ROVER: No.

MR. CHERTOFF: Are you absolutely confident that it was your regular practice and habit to convey any material information with respect to this matter to your superior, the Executive Assistant Attorney General?

MR. ROVER: I feel pretty confident that I would talk with Alex on anything substantive.

MR. CHERTOFF: Now, you mentioned there's a Moorestown audit from 1996 that came into your possession in July 1997. Let me show you -- let me show you W-30 for identification. It's OAG975. It's got a cover sheet to Peter Verniero from Alexander Waugh dated July 29, 1997.

Okay. Putting aside the cover page, do you remember the documents underneath it?

MR. ROVER: Yes.

MR. CHERTOFF: Okay. How did you get these documents? How did they come into your possession in July 1997?

MR. ROVER: I believe I got them from Alex.

MR. CHERTOFF: That would be Mr. Waugh?

MR. ROVER: Yes.

MR. CHERTOFF: Do you know how he came into possession of them?

MR. ROVER: No.

MR. CHERTOFF: What did he say to you about them?

MR. ROVER: I can't recall a specific -- I don't have a specific recollection of him talking about the substance of the document. The issue that presented itself is what are we going to do with respect to the DOJ inquiry?

MR. CHERTOFF: And that presented itself because you felt these were relevant to what had been promised to the Department of Justice?

MR. ROVER: Well, the Department of Justice had not asked for an audit or analysis at this time, but clearly this is an analysis of a portion of the Turnpike and it certainly raised an issue I think between both of us that it may be relevant.

MR. CHERTOFF: And did you believe it was relevant? Was your opinion is it seemed like they were relevant?

MR. ROVER: You couldn't say that they weren't relevant. I didn't know if there were any other policy considerations that would override that. But it would almost be impossible to say they're not relevant.

MR. CHERTOFF: I mean in the original sample information request, the federal government asked for all analyses, assessments, studies or reports undertaken by the State Police from 1990 to the present relating to composition of, you know, groups of motorists with traffic law violations or things of that sort. Was that covered by that?

MR. ROVER: When I obtained possession of that document, I guess it's a blank information request, in speaking about it with Alex, it was described to me as a template of what -- or a guideline of what Justice may be asking for and that they would be calling us to set forth what they were actually looking for. And I think at the end of the -- at the end of January began the discussions with Mr. Posner from the Justice Department where he would make specific requests for particular documents.

MR. CHERTOFF: As the person who was actually talking directly to the Department of Justice in Washington on behalf of the State, was it your opinion that it seemed that these documents in this exhibit were relevant?

MR. ROVER: Yes.

MR. CHERTOFF: So when you talked about this with Mr. Waugh, what did he tell you to do?

MR. ROVER: My recollection is that he told me to hold onto it and that he would get back to me.

MR. CHERTOFF: And after a couple weeks went by, did you approach him again?

MR. ROVER: Yes, I did.

MR. CHERTOFF: And what did you ask him?

MR. ROVER: I believe I asked him -- I don't recall specifically, but I believe I asked him, you know, what's up with the audit report?

MR. CHERTOFF: And what did he say?

MR. ROVER: My recollection is that he didn't have a decision but that I should hold on to it but I should let him know if Justice asked for it.

MR. CHERTOFF: And did you ever actually get a specific -- well, let me come back to that later.

So you held onto it for the rest of 1997?

MR. ROVER: Yes, I took his answer as saying, the second time, as don't produce it, but if they ask for it, then let me know.

MR. CHERTOFF: And they didn't specifically ask for it in '97?

MR. ROVER: Not until December of 1998.

MR. CHERTOFF: We'll get there in a second. But when you said he didn't have it -- when he told you the second time you went to him that he didn't have the decision yet, did you understand to what he was referring to who was making the decision?

MR. ROVER: There was nothing he said to me that led me to believe anything in particular, but I assumed it would have been a discussion with the Attorney General. But that is an assumption.

MR. CHERTOFF: Did he indicate to you that he was making the decision himself?

MR. ROVER: No.

MR. CHERTOFF: I mean was what he said, I haven't made a decision yet or I don't have a decision yet?

MR. ROVER: I can't recall. I just can't recall the exact phrasing. It could have been as simple as he just didn't have a chance to get to it himself or with somebody else in a meeting. I just can't recall.

MR. CHERTOFF: Now, you say it came up again in December 1998?

MR. ROVER: Yes.

MR. CHERTOFF: How did this come up in December 1998?

MR. ROVER: I received a phone call from Justice I believe in the early or the middle part of the month asking if they could speak to some active state troopers. And I told Justice that I would get back to them. And I believe a day or two later I received another call from Justice and they asked me if we had any audits or statistical analysis of anything on the southern part of the Turnpike and could I check to see if any of those documents existed. And I said I would get back to them.

MR. CHERTOFF: Now, after that did you attend a meeting with Colonel Williams and two Lieutenant Colonels from the State Police?

MR. ROVER: I have no recollection of that meeting.

MR. CHERTOFF: But you do have a recollection of checking with someone about whether -- well, let me step back.

This was finally that request hitting the nail on the head asking for the audit, right?

MR. ROVER: That's correct.

MR. CHERTOFF: Now by then Alexander Waugh is now Judge Waugh and he's gone, right?

MR. ROVER: Yes.

MR. CHERTOFF: Who did you go to to find out what you should do?

MR. ROVER: Dave Hespe, the First Assistant Attorney General.

MR. CHERTOFF: And did you call him up first?

MR. ROVER: Oh, yes, I called him first.

MR. CHERTOFF: What did you tell him?

MR. ROVER: I believe I told him I had two issues that I needed to be resolved and I can't remember if I said I just have two issues or if I said one involves this and one involves that.

MR. CHERTOFF: And did you set up an appointment to go over and see him?

MR. ROVER: Yes, I did.

MR. CHERTOFF: And who did you meet with when you saw him?

MR. ROVER: I went to a meeting in Dave Hespe's office with Al Ramey and Jack Fahy.

MR. CHERTOFF: And what was discussed at the meeting?

MR. ROVER: The first issue was whether or not the Department of Justice could speak to these active state troopers.

MR. CHERTOFF: And with respect to this request for an audit, what was discussed?

MR. ROVER: I believe I went into the meeting and said, you know, here it is, Justice has asked for this -- made a request for a document that this falls clearly within and what do you want me to do?

MR. CHERTOFF: Did you bring the memo?

MR. ROVER: Did I bring the document?

MR. CHERTOFF: Yeah, the document.

MR. ROVER: Oh, yes.

MR. CHERTOFF: Okay. And what was the response to the people in the room?

MR. ROVER: I know First Assistant Attorney General Hespe told me that they were working on something right now that they might be able to release at some time in the future and that don't turn it over, get back to Justice and say we're looking and let me know if they ask again.

MR. CHERTOFF: And did anybody else say anything else?

MR. ROVER: I don't believe -- the other people in the room were silent, but I can't recall what was said.

MR. CHERTOFF: And did you carry out Mr. Hespe's instructions?

MR. ROVER: Yes, I did.

MR. CHERTOFF: And did you tell that to the Department of Justice?

MR. ROVER: I told the Department of Justice that I've passed their request through the channels and when I got a response I would get back to them.

MR. CHERTOFF: And what -- did they follow up at all? Did the Department of Justice follow up at all?

MR. ROVER: Not before my file was transferred, no.

MR. CHERTOFF: Your file was eventually transferred in February of '99?

MR. ROVER: That's correct.

MR. CHERTOFF: I want to make sure that we're clear on this. You said Mr. Hespe told you to tell the Department of Justice that we're looking for it and, you know, basically to say we'll get back to you when we find it or something?

MR. ROVER: I don't know --

MR. CHERTOFF: I want to know exactly what Mr. Hespe told you you should say to --

MR. ROVER: Okay. I'm trying to remember. There were two things he said. One was that we're working on something now, but he didn't tell me that to tell Justice. He told me personally, "We're working on something now that we may be able to share with them at some time in the future."

With respect to me, he asked me to go back as if it was a pending request, I guess would be an accurate characterization.

MR. CHERTOFF: In other words, to go back and tell Justice you were looking to see if there was anything that would satisfy them?

MR. ROVER: That's my recollection.

MR. CHERTOFF: But actually you weren't looking because you at least had one thing that would satisfy them.

MR. ROVER: Yes.

MR. CHERTOFF: So I'd guess you'd say that answer is a little bit I guess you'd say cute maybe, is that right?

MR. ROVER: Say that again?

MR. CHERTOFF: It would be fair to describe the answer that you were told to give as kind of a cute answer or maybe a little bit misleading?

MR. ROVER: I don't want to use the word "misleading."

MR. CHERTOFF: I'll withdraw the question.

You people can form your own impression.

And so you didn't hear anything further about that until February of 1999, correct? Or through February of 1999.

MR. ROVER: Correct.

MR. CHERTOFF: Now, there comes a point in time in February of 19 -- one other thing before we move on to February of 1999.

I'm going to show you exhibit G-25, which is a document to Colonel Williams from Sergeant Gilbert through Lieutenant Blaker on analysis of reports from Moorestown and Cranbury on the 30 sample dates. It's

GC2172.

(Pause)

MR. CHERTOFF: Do you have that?

MR. ROVER: Yes, I do.

MR. CHERTOFF: Did you know whether the content of this, forget the actual memo, do you know whether the content of this was conveyed to you by Sergeant Gilbert?

MR. ROVER: I don't have any recollection of Sergeant Gilbert during this time period of giving me this information and I think this is related to an answer I gave earlier. During this time period I was interacting with Sergeant Gilbert regarding the production of documents. I just -- I don't recall him saying that he had performed an analysis of the sample dates picked out by the Department of Justice.

MR. CHERTOFF: So you just don't remember one way or the other?

MR. ROVER: I don't.

MR. CHERTOFF: Now, in February of 1999, did you come to learn that there was an announcement of the State Police Review Team?

MR. ROVER: If it was that time --

MR. CHERTOFF: It was February 10th is when it was announced by the Attorney General that there would be a State Police Review Team led by Mr. Zoubek.

MR. ROVER: I believe so, yes.

MR. CHERTOFF: And then Mr. Zoubek contacted you shortly thereafter?

MR. ROVER: Yes.

MR. CHERTOFF: What did he ask you for?

MR. ROVER: He asked me for the DOJ file. My personal file related to the Department of Justice.

MR. CHERTOFF: Did he tell you why he wanted that?

MR. ROVER: Say that again?

MR. CHERTOFF: Did he tell you why he wanted that?

MR. ROVER: I think he said that he was going to handle the interaction with the Department of Justice.

MR. CHERTOFF: Did you give him your file?

MR. ROVER: Yes, I did.

MR. CHERTOFF: Did you prepare a cover memo for the file?

MR. ROVER: A transition memo, yes.

MR. CHERTOFF: Okay. Now, I'm going to show Z-14, OAG5433, a memo to Paul Zoubek from you dated February 26, 1999, which is a three-page document. And I want to turn to the last page. It says, "These," and I think he meant to say "there," "are numerous documents that I have not produced to DOJ and they include the following." And then you have a list of documents and then also said, "These are other documents not produced to DOJ which I have kept in a separate file." Now, as we go down this list, the July 5th, 1996 IAB motor vehicle stop audit of Moorestown station, Lieutenant Gilbert, is that a reference to that audit that you had gone to Mr. Waugh about and Mr. Hespe about whether you should turn it over to the Department of Justice?

MR. ROVER: Yes.

MR. CHERTOFF: And then as we go down to six, seven and eight, is the reference to Hunterdon County statistics, is that April 24th memo, that's the memo, the Perryville, Hunterdon County statistic memo I showed you a short while ago dated April 24th, 1996, right?

MR. ROVER: That's correct.

MR. CHERTOFF: And Gloucester County data base arrest data, what is that that you withheld from DOJ?

MR. ROVER: With respect to that document, I don't have a real clear recollection, but I think it was a data base of arrest data. I don't know when or from whom I got it.

MR. CHERTOFF: Would you have gotten it from Sergeant Gilbert?

MR. ROVER: I may have.

MR. CHERTOFF: Now, in deciding not to produce documents to DOJ, who decided that these documents shouldn't be provided?

MR. ROVER: Well, with respect to one, six, seven and eight, I believe Alex Waugh.

MR. CHERTOFF: And you had conversations about it with each of those -- with respect to each of those documents?

MR. ROVER: Yes.

MR. CHERTOFF: Did you ever make a unilateral decision to withhold a document from DOJ?

MR. ROVER: Well, I don't say I withheld documents from DOJ, I responded to their requests

and --

MR. CHERTOFF: Let me rephrase the question.

Did you ever make a unilateral decision on any document that was even a moderately close call not to produce something to DOJ?

MR. ROVER: No. I think if it was a moderately close call, I would reach out for someone and say here this is, what do you think?

MR. CHERTOFF: Now, all these documents here, these are documents you specifically listed for Mr. Zoubek because you believed that they fell within the scope of what might arguably be called for, right?

MR. ROVER: Well, I wanted to be very up-front. I mean maybe they didn't, but I wanted to make sure that, you know, no one had the perception that I was hiding anything, I wanted to be up-front in my transition memo.

MR. CHERTOFF: And these were all documents, as you indicated, that the decision not to produce you consulted with Mr. Waugh about?

MR. ROVER: Not all of them.

MR. CHERTOFF: I'm sorry; one, six, seven and eight.

MR. ROVER: Yes.

MR. CHERTOFF: Okay. What about two, three, four and five, do you know whether you had spoken to Mr. Waugh about those?

MR. ROVER: With respect to two, my recollection is that I had recently received from Sergeant Gilbert some additional training materials and in addition to that, the Department of Justice had generally asked for specific training materials. I don't recall them asking for like just give me all your training materials. So I gave them in-service materials. So a combination that these documents had I believe come in -- I don't know if it was in the last two or three weeks, coupled with whether or not Justice had actually asked for those particular documents, these documents fell in that group.

MR. CHERTOFF: What about three, four and five?

MR. ROVER: With respect to five, I don't have a recollection of why -- I don't even recall the document. I have a recollection of why I didn't produce that, I don't know if it just recently came in, I just don't know.

With respect to four, I had recently received a request from the Department of Justice asking if we had any other data relating to the 30 sample dates and I can't recall exactly, I think he said do you have other stop notation pads or anything of that import. I believe I called Sergeant Gilbert and he said no, we don't have those. And it ended up saying -- he said that we have negative OPR, which I guess are probable cause searches. And I said I believe they are produced in with the investigation and arrest reports. And he advised me that no, they were really a separate document. And he said that he had already given them to me in the past and I believe that he was correct that I, in fact, did have those and I would have -- they should have been produced. And that was not a decision that Alex told me not to do. It was, I would say, a mistake on my part.

MR. CHERTOFF: Let me -- just two more things to cover before my questions are done.

I'm going to ask that a copy of G-33 be put before you. This is a notebook which Sergeant Gilbert testified about yesterday that he turned over to Mr. Zoubek. Were you around when that notebook got turned over? It was a blue notebook.

MR. ROVER: Yes. I was at a meeting over in the Division of Criminal Justice when that was turned over.

MR. CHERTOFF: That was March 15th? About.

MR. ROVER: I know there's a date, so I'll take your -- I'll accept your representation on that.

MR. CHERTOFF: Did Mr. Zoubek react to this notebook at all after he got it?

MR. ROVER: I've obviously been asked that question. I don't have a recollection of his reaction. My recollection is the meeting happened and it was over in five minutes.

MR. CHERTOFF: Did he ever talk to you about it?

MR. ROVER: The particular meeting?

MR. CHERTOFF: No, the notebook -- whether you had seen any of the documents in the notebook previously.

MR. ROVER: No. He didn't talk to me about the notebook as a whole. I believe he talked to me about a particular document sometime later in 1999.

MR. CHERTOFF: Which document was that?

MR. ROVER: I believe it was a document relating to the Maryland case.

MR. CHERTOFF: Was it an undated piece of paper with Maryland consent search data?

MR. ROVER: I can't recall if he showed it to me or we talked about it on the telephone, but I believe it was an early 1997 document relating to the Maryland case and consent searches.

MR. CHERTOFF: What was the discussion about that?

MR. ROVER: I believe that he talked to me about the memo and said, "Did you ever receive this"? And my answer was, I have no recollection of having ever received that document. And he -- I think he had a general discussion about what about the consent-to-search issue? And I believe I said to him that there was a meeting at sometime in May of 1997 where a number of people assembled to discuss the Maryland case and consent to searches.

MR. CHERTOFF: And did you indicate to him that there had been discussion about the comparison between the Maryland numbers and the New Jersey numbers in that meeting?

MR. ROVER: I can't remember specifically. I would imagine, you know, that I just didn't say that there was a meeting. I would imagine I told him a little something.

MR. CHERTOFF: Now, if you look at this blue notebook. If you look at the very first page after the cover, there's a report of Lieutenant F. Hinkle dated 3-29-96 regarding internal audit of summonses having to do with Perryville and Washington, correct? It's the very first sheet after the cover.

MR. ROVER: Yes, I see it.

MR. CHERTOFF: Okay. Now, that, in fact, is what's referred to in your memo of February 29th, 1999 as something that you had but you hadn't produced to DOJ, right?

MR. ROVER: That's correct.

MR. CHERTOFF: So that was clearly something that had been provided to you prior to February of 1999, correct?

MR. ROVER: That's correct.

MR. CHERTOFF: And do you know whether you got this one from Mr. Waugh or from Sergeant Gilbert?

MR. ROVER: I believe I got it from Sergeant Gilbert and talked about it with Alex Waugh.

MR. CHERTOFF: And if you go a little further on, there's a document dated 9-24-96 from Lieutenant Hinkle to Captain Touw, patrol issues concerns at Moorestown station, a sheet of paper. Do you see that?

MR. ROVER: How far down did you go?

MR. CHERTOFF: Maybe about eight to ten sheets down. Patrol issues concerns at Moorestown station.

MR. ROVER: Yes.

MR. CHERTOFF: Okay. Is that part of the document that you got from Mr. Waugh on July 29, 1997 that you list as item number one as documents not produced?

(Pause)

MR. ROVER: Yes.

MR. CHERTOFF: Now, let me ask you this. In connection with -- actually, let me turn to you, Mr. Fahy, just for a minute.

You heard the testimony by Mr. Rover about the meeting with Mr. Hespe in approximately December of 1998. Do you recall that meeting?

MR. FAHY: Yes, sir.

MR. CHERTOFF: Is it your memory consistent or inconsistent with what Mr. Rover has told us transpired at that meeting?

MR. FAHY: It's generally consistent. I think -- I got called out of the blue and I think I asked a question or two with well, are they asking for this? Is it relevant? Because I hadn't kept up so much with the requests from Justice. But generally, yeah. Because they were going to look into it.

MR. CHERTOFF: Now, let me ask you one last question, Mr. Rover.

After Mr. Zoubek took over dealing with the Department of Justice, how much further interaction did you have with the Department of Justice?

MR. ROVER: Subsequent to the turnover of the file?

MR. CHERTOFF: Yeah.

MR. ROVER: I don't believe I had any.

MR. CHERTOFF: And what was your actual function of the State Police Review Team? I mean were you involved in review related to racial profiling?

MR. ROVER: No, I was not on the Review Team.

MR. CHERTOFF: Were you available to answer questions?

MR. ROVER: What I recall is that I was asked to do two assignments. One, to review the experience of the Maryland State Police regarding the Maryland case. And two, to deal with the Pittsburgh Police Department regarding their consent experience, so to speak.

MR. CHERTOFF: Now, Mr. Fahy, let me ask you. Did Mr. Zoubek ever ask you about this May 28th meeting in 1999?

MR. FAHY: Not that I recall.

MR. CHERTOFF: So he never asked you whether you attended the meeting on May 20th and what was said?

MR. FAHY: Not that I -- well, I didn't participate in the Review Team.

MR. CHERTOFF: If you had been asked, you would have confirmed the May 20th meeting and the subject of the discussion, correct?

MR. FAHY: If I had some records to refresh my recollection. I don't know out of the blue off the top of my head but, sure, if they gave me something and it showed I was there, why not?

MR. CHERTOFF: Did the Attorney General ever ask you, Mr. Fahy or Mr. Rover, about your recollections about whether there was a May 20th meeting?

MR. FAHY: I haven't spoken to him.

MR. ROVER: I haven't either.

MR. CHERTOFF: In 1999 he didn't discuss that -- he didn't ask you whether you remember --

MR. ROVER: Oh, no.

MR. CHERTOFF: And that's true for you, too, Mr. Fahy?

MR. FAHY: I really haven't spoken to him since the meetings back in '96 or seven.

MR. CHERTOFF: Now, I want to direct your --

did you, Mr. Rover, or you, Mr. Fahy, participate at all in the drafting of the interim report on racial profiling?

MR. FAHY: No.

MR. ROVER: No.

MR. CHERTOFF: I want to direct your attention -- did you read it after it came out?

You can say no, you're not going to get punished, I mean.

MR. ROVER: I didn't.

MR. FAHY: I glanced at it. I kind of wondered why it was such big news. I mean we had always taken the position that there could be some racial profiling in the State Police and --

MR. CHERTOFF: You never thought it was an illusion, you always thought it was a real issue?

MR. FAHY: With regard to some troopers, yes.

MR. CHERTOFF: All right. Well, let me ask you, Mr. Rover, I want to focus your attention on a draft version of this that was issued on April 7th, 1999, but in fairness it was later deleted or substantially reworked. It's Z-19, OAG2619. The April 7th draft. It's actually Page 2. And the paragraph reads as follows: "We feel constrained to comment that some of the statistical information we rely upon, including particularly revealing data concerning consent searches, were only recently disclosed by the State Police to the Office of the Attorney General. Certain internal studies and audits prepared at the request of the Superintendent, were not made known to the Deputy Attorneys General who were representing the State in the Soto litigation. This circumstance has seriously compromised the State's litigation posture and also has needlessly delayed initiating appropriate remedies and reforms."

Now, the sentence that says "Certain internal studies and audits prepared a the request of the Superintendent, were not made known to the Deputy Attorneys General who were representing the State in the Soto litigation." Mr. Rover, do you know to what that refers?

MR. ROVER: Certain internal studies and audits?

MR. CHERTOFF: That were not made known to you. It's stated here that certain internal studies and audits were not made known to the Deputy Attorneys General who were representing the State in the Soto litigation. Do you have any knowledge that that's true? Is that your position? Do you think things were not made known to you?

MR. ROVER: Well, I wasn't a DAG in the Soto litigation.

MR. CHERTOFF: So this doesn't refer to you.

MR. ROVER: I had nothing to -- I reviewed the Soto brief on the appeal, but I wasn't involved in the Soto litigation.

MR. CHERTOFF: And you never made the accusation that the State Police withheld documents from you, right?

MR. ROVER: Oh, no.

MR. CHERTOFF: And is it your position to your knowledge that they did withhold documents from you?

MR. ROVER: I'm not aware of everything that was subsequently turned over, but certainly I had some documents that they turned over to me. I don't know the universe of documents that were out there as to -- I can't make that decision or I can give an opinion on that.

MR. CHERTOFF: Mr. Fahy, do you know whether you're referred to as someone who was denied -- or documents -- or documents were not made known to you that you requested?

MR. FAHY: I don't know if that refers to me. I can tell you what did happen. I had a request from Mr. Zoubek to produce an interoffice communications I had back and forth with State Police, and I did that. And then he came down one day and he had some reports and he said do you recall these being provided to you by the State Police. I said, no. They're not in my file. And it really didn't go beyond that. Light probing as to -- I mean it was just brief.

MR. CHERTOFF: Well, what reports did he show you that you said you didn't have in your files?

MR. FAHY: I can't recall offhand, sir. It could have been -- it could have been one or two of these.

MR. CHERTOFF: Could it have been the July the -- could it have been the Moorestown report that's attached to the July 27th, 1997 memo to the Attorney General?

MR. FAHY: Could have. I can't remember.

MR. CHERTOFF: Was it the Perryville audit? The document that's in front of you?

MR. FAHY: I can't remember now, sir. It lasted about five minutes. And I just took a flip through and said I didn't get anything of this kind of detail. That doesn't mean, like I said earlier, there weren't some discussion.

But I just didn't have in my files anything of that detail. And I would assume that if it had been given to me, they would be in my files. There was no reason to hide them.

MR. CHERTOFF: Well, let me ask you this. I mean -- and tell me if you -- this paragraph, as it's written, admittedly a draft, levels what amounts to a series accusation that the State Police withheld documents in a way that serious compromised the State's litigation posture. Essentially it's saying that because of a deliberate withholding of information, there was harm to the State of New Jersey in its handling of this matter.

Now, did you -- were you ever actually -- since you were handling this sort of litigation, did anybody ever ask you to express an opinion as to whether the State Police did harm the litigation posture of the State in Soto?

MR. FAHY: No. And I don't think I would have ever had enough information to make that claim, sir. That's -- that's a pretty strong statement, and I knew nothing about anyone withholding stuff from me intentionally.

MR. CHERTOFF: Okay. I have no more questions.

SENATOR GORMLEY: We're going to take about a half hour break. And then the Committee members will ask the witnesses questions.

(Recess)

SENATOR GORMLEY: We'll reconvene the hearing with one final question from Mr. Chertoff.

MR. CHERTOFF: Mr. Rover, I just want to direct your attention to that July 29th, 1997 memo, cover page which has the attached memo that you -- regarding Moorestown, that you were told to delay or withhold from producing until further instructions by Mr. Hespe, do you have that? It's marked W-30 on the cover page. Do you have that?

MR. ROVER: Yes, I do.

MR. CHERTOFF: Okay. The last page, does that list -- the last page of the document, does that list an analysis of consent searches for 1995, including percentages of minority and non-minority consent searches?

MR. ROVER: Are you asking does it --

MR. CHERTOFF: Yeah.

MR. ROVER: Does it -- yes, it has data relating to consent searches, 1995.

MR. CHERTOFF: And it indicates that in 1995, 62 percent of the consent searches at Cranbury were minority and 38 percent were non-minority.

MR. ROVER: Yes.

MR. CHERTOFF: And this is what you were told to forebear from producing, right?

MR. ROVER: Yes.

MR. CHERTOFF: Nothing further.

SENATOR GORMLEY: Jo?

MS. GLADING: I just have questions in a couple of areas that haven't been covered. I wonder if you can give Mr. Fahy those two documents, both of them. But before I get to that, when you mentioned before, Mr. Fahy, that when you were part of this Committee that was chaired by Colonel Littles that you advised them that they should get an expert to advise them on statistical matters, is that right?

MR. FAHY: No, I don't --

MS. GLADING: Um?

MR. FAHY: I don't recall that I said it at that time.

It's my opinion that the State Police were going to be doing extensive studies, they should have experts. I can't say that I said it at that meeting.

MS. GLADING: So, you didn't advise them to get an expert?

MR. FAHY: I can't recall saying that.

MS. GLADING: At the time of -- you -- I think you testified earlier that you were not familiar with the consent search issue in Maryland specifically, is that correct?

MR. FAHY: No, that's not correct either. I went with Tommy Gilbert to Maryland at the request of an attorney from Maryland to come down and let him know what we were doing in New Jersey.

MS. GLADING: Did you testify that you were not familiar with the consent search study that was done in Maryland?

MR. FAHY: I didn't take any paperwork from that meeting that day. I learned later on that a different State Police official got it for Tommy Gilbert over the internet, I think, in October. But that was from reading the transcript.

MS. GLADING: Okay. Are you familiar with statistical studies that were done by Dr. Lamberth (phonetic)?

MR. FAHY: In Maryland?

MS. GLADING: In Maryland.

MR. FAHY: I never saw them, no.

MS. GLADING: Dr. Lamberth was an expert in the Soto case, wasn't he?

MR. FAHY: He was an expert. He wasn't the lead expert for the defense. They had another expert from Pittsburgh.

MS. GLADING: On the issue of the other suppression cases that were pending around the State in -- immediately following Soto and the months subsequent to that, and your meeting with Prosecutor Ransavage, there was a transition report. And I think you were asked about this at your deposition, transition report written in the summer of '96 when there was a transition between Attorney General Poritz and Attorney General Verniero, do you recall being asked about that document during your deposition?

MR. FAHY: There were a few transition reports with different attorney generals. So, I'm sure that's one of them, yes.

MS. GLADING: Okay. We have a highly redacted version of that transition report, we just have a couple of paragraphs from it actually. And it discusses the Gloucester County case and the loss of the case in Gloucester and that it was being appealed and the length of the hearing. And it indicates, "Due to the protracted nature of the case, the State was provided with additional time to review and evaluate the transcripts covering the 75-day period."

"A number of similar motions to suppress have been brought in pending matters in several counties. Discussions are underway with the Public Defender about these matters."

That's the issue you testified to earlier, isn't it?

MR. FAHY: Yes. Well, over the years, there were motions brought in many counties. And they just didn't progress, the defendants did not prevail on the colorable basis test.

MS. GLADING: Right, that's not what I'm asking. You testified earlier that General Poritz wanted discussions to be held at the Public Defender's Offices so that a lot of money wasn't being spent to litigate these cases. If there was a colorable basis, you would look at troopers' backgrounds, you would share discovery, you would deal with these cases in a different way, is that right?

MR. FAHY: Generally, yes. That's -- she had Jim Ciancia chair that meeting. And she also had me deal with Director Farley. And there's a memo in the records telling him it was going to be his job to express to the prosecutors that they had to bear the cost of this, yes.

MS. GLADING: So, in this transition report -- and it is written in July of '96 or sometime thereabouts, and it references discussions underway with the Public Defender about these matters, that's what it's referring to, right?

MR. FAHY: I didn't ever see the document you have probably. The way it happens is each person in the Department who has a significant issue is told to write a memo on what they're dealing with. And somehow, somewhere somebody puts it together in one report.

MS. GLADING: Could you take a look at the two documents that have been given to you? One is a May 21st, 1998 memo from you to General Verniero and it attaches a draft statement, apparently for his use after the -- his meeting with the representatives of the Black Ministers Council.

MR. FAHY: Yes, I'm familiar with this document.

MS. GLADING: Okay. It's F-24. And then I have also given you the actual statement that was released, which is SJC-4.

MR. FAHY: That, I don't know that I ever saw before. But I did see F-24, I wrote that.

MS. GLADING: Okay. If you could look at the top of page GC-2364.

MR. FAHY: Yes?

MS. GLADING:  There's a sentence that reads -- it's discussing all of the institutional efforts that have been taken -- undertaken to address the continuing allegation of racial profiling against the State Police. That's what this document is, right? Is that correct?

MR. FAHY: I'm sure it's -- that's covered in here.

MS. GLADING: The document is intended to be a statement about all of the institutional steps that have been taken to address allegations of racial profiling, right?

MR. FAHY: I would think so because the outline addresses that also.

MS. GLADING: Okay. And in that page I directed you to, there's a sentence that -- there's a paragraph that reads, "A committee of officers and deputy attorney generals was formed to analyze the issue and make recommendations for improvements." And it's discussing -- and apparently the sentence before that -- sorry, it says, "I also apprized the ministers of an effort instituted approximately two years ago to ensure that the policy against racial profiling was being effectively implemented."

And then it says, "A committee of officers and deputy attorney generals was formed to analyze the issue and make recommendations for improvements."

Is that referenced to the Littles Committee?

MR. FAHY: Yes.

MS. GLADING: Okay.

MR. FAHY: That's what I was referring to.

MS. GLADING: And at the end of that paragraph, there is a reference to, "We will reinvigorate this Committee with the goal of making further progress."

This is a Committee that had not met, at this point, for a year and a half, right?

MR. FAHY: Like I said, I only went to meetings in the spring of '96. I don't know what the State Police did after that. I know they had a meeting in October, but I can't tell you that.

MS. GLADING: Okay.

MR. FAHY: I don't know what they did.

MS. GLADING: This is a Committee in which your participation ended effectively sometime in the summer of '96, right?

MR. FAHY: Yes.

MS. GLADING: Why would -- do you know if there were any steps taken to reinvigorate the existence of this Committee?

MR. FAHY: There doesn't say that there were steps taken.

MS. GLADING: No, you're --

MR. FAHY: I'm --

MS. GLADING: What you wrote says, "We will reinvigorate this Committee with the goal of making further progress."

Were any steps like that taken?

MR. FAHY: Oh, I -- none that I know of. I was just -- what's attached here is also a outline to Attorney General Verniero, listing past actions and new initiatives. And one suggestion that I had was to reinvigorate that Committee.

MS. GLADING: Okay.

MR. FAHY: So, I'm doing a draft at the same time I'm doing the letter to the ministers.

MS. GLADING: Okay. If you could look at the May 27th, 1998 statement, what's marked SJC-4. If you could just scan that and tell me whether or not that suggestion was adopted.

(Pause)

MR. FAHY: Do you know if it's in here?

MS. GLADING: It's not, no.

MR. FAHY: Well, I don't know if it was adopted at a time or not. He didn't put it in the letter.

MS. GLADING: Okay.

MR. FAHY: You'll have to ask Peter Verniero.

MS. GLADING: And the deletion was made. Do you know who made that deletion? Deleted that from the statement?

MR. FAHY: I have no idea.

MS. GLADING: And at the bottom of GC-2364, there's a reference to, "Besides training, ongoing efforts are also being made to ensure that supervisors within the State Police have sufficient information to monitor the stopping practices and any resulting enforcement action taken by road troopers."

In that sentence, were you referring to the inspection audits that were underway at that point?

MR. FAHY: No, they were talking about specialized training, in-service training for supervising officers in the State Police to ensure that when they were supervising, they understood that they had to deal with this issue also.

MS. GLADING: Yeah. Actually it says, "Ongoing efforts are also being made to ensure that supervisor within the State Police have sufficient information to monitor the stopping practices and any resulting enforcement action."

So, is that a reference to inspection audits or gathering of data or information?

MR. FAHY: I'm not sure at this time.

MS. GLADING: No?

MR. FAHY: I mean I may have called someone at the State Police and asked them what's going on still with the efforts we talked about in the Committee. I don't recall now.

MS. GLADING: The Committee? The Committee that hadn't met for a year and a half, you mean?

MR. FAHY: Well, just because a Committee didn't meet, it didn't mean that Internal Affairs wasn't going to follow through on some things and training wasn't going to follow through.

MS. GLADING: Mr. Rover, I just have a couple of questions for you.

The -- can you describe for me how the exchange of information -- once you began sending -- gathering information for D.O.J., how the exchange of information took place between you and Sergeant Gilbert?

MR. ROVER: My recollection is that we had these sample dates. And early on, the representative from Justice, I believe, pointed out a particular type of document. I don't know if it was the radio logs or patrol charts that -- in other words, kind of work on these first and see if you can get them for me. And I think Tom was working on everything at the same time, but certain ones, at times, I would prioritize because Mr. Posner call me.

MS. GLADING: So, Tom was out gathering this information and giving it to you as he gathered it, is that correct?

MR. ROVER: I believe so. I mean I don't -- it didn't -- I know I asked Tom not to hold it all and give it to me in a big pile because Mr. Posner told me just start getting this stuff.

MS. GLADING: Okay. Mr. Gilbert -- Mr. Gilbert testified -- I asked him when he finished getting the information together for you, and he said, "Probably in the area of July/August of '97, I think that we were well underway."

And then he says, "But I would say that I think by the early fall of '97, I think we were in pretty good shape as far as getting most of the documents in."

Because he had been out at the barracks collecting the documents, right?

MR. ROVER: Yes, he was.

MS. GLADING: Okay. Is that your recollection also?

MR. ROVER: It's hard for me to say. I mean I would imagine by October, November, a lot of the documents relating to the sample dates were secured. I don't think they all were. But --

MS. GLADING: Okay.

MR. ROVER: -- I think that they were.

MS. GLADING: You think you had most of them by October or November, as he said there? Or by early fall he said.

MR. ROVER: I think I had quite a few of them, yes.

MS. GLADING: Okay. You don't have any reason to believe that Tom Gilbert would have collected documents and held them back from you, right?

MR. ROVER: Tom? No.

MS. GLADING: Before I ask you about how you then handed those documents over to D.O.J., I have a couple of quick questions on consent to search forms.

You testified earlier that you felt very strongly in April that the factual circumstances needed to be considered when consent to searches were looked at, is that right?

MR. ROVER: I think that's the point set forth in my April memo.

MS. GLADING: Okay. So, in April or May, you've written that in the memo and you also know at some point in time around now that the New Jersey numbers are in the ballpark of the Maryland numbers, is that right?

MR. ROVER: That's correct.

MS. GLADING: Okay. The July 10th memo that Sergeant Gilbert -- in which he provided an analysis -- in which he conducted an analysis of the 30 sample days talks about 38 files that were examined for consent to search. So, apparently there were 38 consents to search on those 30 random days, is that your understanding?

MR. ROVER: That makes sense. I just don't know.

MS. GLADING:  Okay. Did you ever conduct any analysis of the consent to search forms that he had given you?

MR. ROVER: No, I did not.

MS. GLADING: Did you ever look at the factual circumstances of the consent to searches?

MR. ROVER: No, I did not.

MS. GLADING: It was 38 incidents, according to his analysis. So, that would have -- would not have taken long, right?

MR. ROVER: I think it would have been manageable.

MS. GLADING: Um-hum, 15, 20 minutes to look at the 38 forms?

MR. ROVER: Well, I don't think it would have been that manageable. But, you know, it's very doable. I think you'd have to spend a little bit more time and compare them to each other. And I certainly wouldn't have had the expertise to do that. But, no, I did not.

MS. GLADING: And since he had written in July -- on July 10th of '97 his analysis of the consent to search forms, you testified earlier that you didn't believe that he held anything back from you. It's likely that you received the consent to search forms about that time, right?

MR. ROVER: I can't -- I've obviously thought about that question. My recollection is -- and I can't specifically say when Tom sent them over to me. My recollection is is that at some point in October, D.O.J. asked for the consent to searches like particularized them.

Now, there was an outstanding request for all six categories of documents, but D.O.J. was kind of prioritizing them as we went down the line. And that request came in, I believe, sometime in October.

That precipitated me having to reach out to Alex Waugh and say, Justice now wants these.

MS. GLADING: Right, because we talked about that earlier.

MR. ROVER: Yes.

MS. GLADING: But my question is this. If a consent to search form is based on Gilbert's testimony or in Division headquarters, they're the easiest documents of all these documents to gather. He could walk down the hall and get them --

MR. ROVER: Okay.

MS. GLADING: -- and do an analysis. And we know he did an analysis by July 10th of '97.

MR. ROVER: Right.

MS. GLADING: And you testified earlier that as he collected these documents, he was handing them over to you.

So, are you suggesting that he sat on those documents?

MR. ROVER: No, I'm not. I'm not suggesting that. I'm just -- I don't have a recollection.

What I do have a recollection of is that at some point, I believe in October, there was discussions about the other categories of documents.

MS. GLADING: Let's talk about that for a second. What were the other categories of documents that --

MR. ROVER: Radio logs, patrol charts, tickets, warnings.

MS. GLADING: Um-hum.

MR. ROVER: I think investigation and arrest reports.

MS. GLADING: And you testified earlier, I think, that you sent a consent to search forms in November to D.O.J.

MR. ROVER: That's correct.

MS. GLADING: We weren't able to find any transmittal document and you seem to always include a transmittal document when you sent documents to D.O.J. Do you know why there wouldn't have been a transmittal document for that?

MR. ROVER: My recollection is that I think the November 5th letter, which went through the chain of review through Alex, and I learned through the Attorney General, was the document that I used to send a letter, to send the consent to searches down. Although I recognize it doesn't say attachments on it.

I can only surmise that because it was going to this review process, it didn't have that formal transmittal. I mean they went. The documents went.

MS. GLADING: Okay. Let's talk about the other documents. On June 17th, 1997, you sent the radio logs for three dates in 19 -- three 1995 dates for Moorestown Station. And that seems to begin the production of documents to D.O.J., aside from the sample documents they had been asking to look at previously. That -- is that your recollection?

MR. ROVER: That's my recollection.

MS. GLADING: And then two days later you send them two more days of radio logs for -- for dates in '96.

A day later, you send them some additional radio logs for 26 dates.

And this document production that -- continues over the next eight months. You send -- in July, you send radio logs for a couple of dates.

On July 7th, you send them for five more days for Moorestown, for three in '96, the radio logs.

You send the D.O.J. one day of radio logs on July 22nd.

On July 29th, you send them three days of investigation arrest reports.

On August 7th, you send them three days of investigation and arrest reports.

A pretty maddening pace, and it continues for months. Is that the pace at which Tom Gilbert was giving you these documents?

MR. ROVER: I can't recall if he always gave them to me at that pace. I mean I know there are times where documents came in and I might get to a few of them, but they wouldn't sit there for a month.

MS. GLADING: So, if Tom Gilbert testified that he got you all the documents, or basically all of them, by early fall. And you said it was around October, November you had most of them, is that -- that was your testimony, right?

MR. ROVER: I believe it was.

MS. GLADING: In 1997, right?

MR. ROVER: Correct.

MS. GLADING: The in November -- on November 14th, you said a couple of days worth of patrol charts. On November 21st -- on November --

FEMALE SPEAKER: Tenth.

MS. GLADING: On November 10th, you sent patrol charts for additional days for Moorestown.

On November 24th, you send them tickets and warnings for Cranbury for three different dates and stop data for two days. And this continues well into 1998.

Can you explain why, if you had most of the documents, why you -- I'm looking at January, January 5th you send them tickets and warnings for two days. January 6th, you send them tickets and warnings for two days.

January 7th, you send them tickets for two days. January 8th, you send them warnings and tickets for two days.

Can you explain why the documents were provided to D.O.J. in this fashion?

MR. ROVER: My recollection is that by the end of December, the majority of the documents relating to the thirty days had gone to D.O.J.

I know there were other circumstances, and I -- I -- listen, I can't account for all of them. I mean in some cases, I might not have gotten to them when they came in. I might have gotten to part of a pile. You know, I'm certainly not saying Tom Gilbert was sitting on any documents.

There were other situations where documents -- I got calls from Mr. Posner saying, hey, I thought I had all the radio logs, you know, it seems like I'm missing these. Maybe you sent them, but I need them.

I just don't know. And I agree -- I understand your question.

MS. GLADING: It looks as though you were sitting there with boxes of documents in your office and you're kind of putting a couple into an envelope every couple of days and sending it down to D.O.J., from the way the transmittal letters read.

MR. ROVER: I understand that. I don't -- I did not have a practice of just like pulling out like four of them and saying, oh, I got 30 other ones there.

(Pause)

MS. GLADING: At some point in time, did Mr. Waugh say something to you that you interpreted as instructions to drag your feet in the way in which you provided documents to D.O.J.?

MR. ROVER: Alex Waugh, I believe, it was before the May 20th meeting, but I'm not sure, used the phrase, take your time but be responsive.

MS. GLADING: He testified that he later learned that you had interpreted that to be instructions to drag your feet and that it was inartfully worded by him. Did --

MR. ROVER: I've read his -- I've read his transcript. I had a couple of conversations with him. I think he said that I may have initially misinterpreted.

What I understood -- how I understood this to work, my instructions, was D.O.J. is going to set the pace on when they wanted documents and what documents. And I was supposed to respond to their pace.

And so if -- and according to my instructions, if they weren't asking for something or pushing for it, I wouldn't initiate.

MS. GLADING: Okay. Well, by December 12th of 1996, the State knew what they were asking for.

By January, they knew that they were going to limit it to the southern end of the Turnpike.

By May, the State knew that D.O.J. was going to look at 30 sample dates and there were discussions about those dates that you were a part of.

MR. ROVER: Right.

MS. GLADING: And by June, you finished sending them sample documents and now you're going to send them the real thing.

MR. ROVER: Right.

MS. GLADING: So, you knew the pace at which D.O.J. had requested it. They had an outstanding request for all those documents that you named before, right?

MR. ROVER: Yes. Yes, they did. In, I guess, the middle of May.

MS. GLADING: Okay. So, if your instructions were to respond to D.O.J. in the fashion in which they made requests, they had made their requests.

MR. ROVER: That's correct.

MS. GLADING: Okay. You said earlier that you think you misinterpreted something that Alex Waugh said, is that correct?

MR. ROVER: I read Alex's testimony and I think we had a couple conversations on what my instructions were. Maybe he thought I misinterpreted. I never saw it as pure delay, but I did see it as not initiating.

MS. GLADING: Not initiating.

MR. ROVER: Yes.

MS. GLADING: But we've clarified, as I just did a minute ago, that there was really no need for the State to initiate. It had an outstanding and considerably large document request that was clarified and resolved by June of 1996, right?

MR. ROVER: Yes.

MS. GLADING: Okay. So, the D.O.J. didn't have to initiate anything at that point, it was up to the State to respond, right?

MR. ROVER: Yes, it was up to the State to respond.

MS. GLADING: Thanks. I don't have anything else. Thanks.

SENATOR GORMLEY: Senator Robertson? You have to put the mike on.

SENATOR ROBERTSON: Yeah, I have it now. Thank you, Mr. Chairman.

Mr. Fahy, you had testified that you've been involved in the Attorney General's Office for 22 years, I believe?

MR. FAHY: Twenty-one.

SENATOR ROBERTSON: Twenty-one years. And that between the years of 1989 and 1996, you had become involved in the issue of racial profiling, is that correct?

MR. FAHY: Yes, sir.

SENATOR ROBERTSON: Now, during that period of time, I'll just go quickly through this just to put it on the record, and this is, by no means, exhaustive, although it gives a flavor for how important an issue this was.

In 1989, for instance, WOR-TV up in New York had done a series on potential racial profiling by the State Police.

MR. FAHY: I'm aware of it.

SENATOR ROBERTSON: You recall that? The New Jersey Law Journal called for an investigation based on the WOR-TV series.

In 1990, Colonel Dintino had come on board, issued a statement saying he'd rather see a drop in drug related statistics than to have troopers violate the rights of the driving public, do you remember discussions of that sort?

MR. FAHY: I remember that, sir.

SENATOR ROBERTSON: In 1991, first we had State versus Kennedy, that was first talking about the defendant's use of statistical surveys as establishing a colorable basis for their claims, you recall that?

MR. FAHY: Yes.

SENATOR ROBERTSON: State versus Kennedy. Of course, in 1991, we had State versus Durant, and I believe you testified a little bit about that important case.

In 1993, Attorney General DelTufo issued a second Attorney General statewide narcotics action plan which, in some cases, is thought by some people to operate at cross purposes with racial profiling.

MR. FAHY: I had nothing to do with that.

SENATOR ROBERTSON: But you're aware, in general, of how important an issue it was. In 1993, the NAACP filed charges of discrimination with the EEOC against the State Police concerning hiring and promotional practices.

MR. FAHY: I've heard in the office that it happened.

SENATOR ROBERTSON: Okay. Taking a look at all of this and, of course, in 1994 during the course of trial in the Soto case, you had mentioned before you had a former State Trooper, an African American, testified that he as trained to actually look for motorists --

MR. FAHY: Two of them did.

SENATOR ROBERTSON: Two of them did. All right. So, you were very, very aware of the fact that this was a very, very important issue.

MR. FAHY: It was important to me.

SENATOR ROBERTSON: Well, it was important to you directly. But wouldn't you conclude from all of the discussion of it in the newspapers, on TV, on the streets, in the motoring public and elsewhere that it was an important issue, not just to those who worked for the State of New Jersey, but to everybody in the State?

MR. FAHY: I don't know. I mean I didn't see the Legislature have hearings then, so --

SENATOR ROBERTSON: Is it your testimony that you were not aware of the fact this is an important issue to the people of the State?

MR. FAHY: It is an important issue. It's a very important issue as far as I'm concerned.

SENATOR ROBERTSON: I'm not asking you for a rhetorical answer.

MR. FAHY: No, but --

SENATOR ROBERTSON: I'm actually asking you for a factual answer.

MR. FAHY: You said --

SENATOR ROBERTSON: Are you aware of the fact -- are you aware of the fact that this is an important issue to the people of the State of New Jersey?

MR. FAHY: I would assume it is, sir.

SENATOR ROBERTSON: Okay. You mentioned before that you were aware -- you were made aware verbally of statistics that suggested that some of the New Jersey State Police numbers were similar to some of the numbers in Maryland, correct?

MR. FAHY: I didn't know what our numbers on consent to searches were. I later found out that they were in the ballpark. But I don't have as good a recollection of the meeting that maybe Alex and George have.

SENATOR ROBERTSON: But generally --

MR. FAHY: I'm just sorry, I don't.

SENATOR ROBERTSON: But generally speaking, you were being kept apprized or briefed in some way, shape or form verbally by Sergeant Gilbert, correct?

MR. FAHY: I was being kept advised that our numbers were running about the same --

SENATOR ROBERTSON: Okay.

MR. FAHY: -- in South Jersey, yes.

SENATOR ROBERTSON: All right. But you had not seen the natural study of those numbers, correct?

MR. FAHY: I didn't see the thing in writing, no.

SENATOR ROBERTSON: Okay. Where did you think he got those numbers from?

MR. FAHY: Well, like I said earlier, I thought that they would be looking at the radio logs and patrol charts the same way we had to send tons of them to experts in the Soto case. I thought the State Police were probably looking at them and estimating, to the best of their ability, since they had an increased number of documents that had race reported on them now that they're running about the same.

SENATOR ROBERTSON: Now, you just put your finger on something that may be important. You're talking about the amount of documents that you sent over in the Soto case. That's because the defendants there were permitted by Court Rule to discover those documents, correct?

MR. FAHY: Sir, we entered -- we entered a consent decree, not so much me. I advised, after -- after Curtis Kennedy, the office decided that if someone made a colorable basis showing, we would cooperate. And I advised Gloucester County from what I saw that the Public Defender gave in Gloucester, they met that test. And that we should provide them what they wanted.

And at that time, it was to gather a statistical database which involved radio logs, patrol charts, tickets.

Unfortunately, as you know from the case, two-thirds of them didn't have any racial identifiers on them.

SENATOR ROBERTSON: Okay. And during the course of the case, the prosecution team was critical of the methodologies being used by the experts hired by the defendants, correct?

MR. FAHY: Not -- not so much on the creation of the database, sir. The database, we all understood, was a problem. That for the defense and for the State, we would have preferred a database for the 100 percent identified.

The criticism was largely related to the violator survey, which you needed to compare to the database. Because even our experts said their population survey running about 15 percent, minority population driving on the Turnpike, was within a reasonable range. He wasn't -- our expert said well, you can say it's -- it's ten -- it's maybe ten percent to 25 percent. But 15 wasn't a bad number as far as population.

But we're criticizing the traffic survey, yes.

SENATOR ROBERTSON: Well, if you never inquired further into the methodologies being used for the numbers you were being apprized of by Sergeant Gilbert, how do you know that the methodology there as either advantageous to the State or to the Department, or at all valid?

MR. FAHY: I think you're mixing apples and oranges. Mr. Gilbert was gathering the database of known activity. We didn't criticize the defense.

As a matter of fact, our experts and their experts were working together. And it's amazing how close they came up in that -- in that study. It was like just arithmetically, we were off a few cases. But they came very close, the defense and the State, as to the number of stops they could identify and how many they could racially identify.

So, our experts, both the State and defense, had an idea like that.

And when Sergeant Gilbert's getting increased numbers, it has to do with that kind of database that you would gather. Maybe not for the time period of three years, like we did in Soto, but for the few months that he was looking at it maybe.

What we criticized was the second part of the equation where the Courts say --

SENATOR ROBERTSON: What was the baseline?

MR. FAHY: Yes. Establishing the baseline, yes, sir.

SENATOR ROBERTSON: Now, with respect to the consent search data, you indicated that it hadn't really occurred to you that a -- that a thorough analysis of that would be useful in yielding material that would be helpful.

MR. FAHY: Maybe it would be useful if -- but you have to understand the sphere I'm operating in. I'm litigating for six years trying to get a study that really identifies the stop information. And maybe it would be useful to some court or to someone, but we haven't gotten to the -- in my view, we didn't get square one on the -- a decent study on the stop data.

SENATOR ROBERTSON: And why was that?

MR. FAHY: Well, they were -- until Colonel Williams, in 1996, strongly advised State Troopers, based upon my recommendations to him that this was a problem in Soto, experts for the State and defense said it was a problem, two-thirds missing data limits statistical experts in making conclusions, they can try to extrapolate.

But when I advised Colonel Williams of that, he issued a read and initial order telling the troopers this is a problem and we need to have better information regarding rates.

SENATOR ROBERTSON: Well, we're talking about the baseline study now.

MR. FAHY: Yes.

SENATOR ROBERTSON: The thing that you originally --

MR. FAHY: Yes.

SENATOR ROBERTSON: -- requested in 1993, you said you didn't get very far with that, correct?

MR. FAHY: No, that was a -- that was a violator survey, which is different than -- in this equation, you measure the documents of known activity versus an estimate of who is similarly situated and available to be stopped or most likely to be stopped.

Now, some people offer that anyone going over 55 is available to be stopped and that's sufficient enough. I've heard that argument.

Others would argue, well, that doesn't really reflect what the troopers are doing. You need a more complex study.

And that's why we were going to experts to say, well, what would that entail? Do we measure people --

SENATOR ROBERTSON: Well, in fact, we had the same discussion during the racial profiling hearings that we had in 1999. I had the exact same discussion with Mr. Zoubek sitting here one morning taking a look at their data.

MR. FAHY: Okay.

SENATOR ROBERTSON: Very apparent that the consent search data had to be applied against something and all of the details had to be applied against some baseline.

MR. FAHY: Well, the case law tells you that, whether it's an employment law or --

SENATOR ROBERTSON: And my --

MR. FAHY: -- or selective enforcement.

SENATOR ROBERTSON: Right. And my -- my question to you is having made the recommendation to develop a violator's survey or an adequate baseline that would help you in court, or help everybody in understanding the situation, why then wasn't it done?

MR. FAHY: I got cut off a few times this morning when I tried to talk about that. It was a complex issue. We went to see experts. We sincerely, I thought, when we were working with Justice, might come up with a study that could be done.

I want to say one thing: Several Attorney Generals thought about doing a violator survey. But when we came back from the experts, it wasn't clear that anyone gave us some definitive study that could be done.

And I don't think an Attorney General -- I'm talking generally. The Attorney Generals wanted to go down the road of every time one of these motions was filed doing a study that doesn't have the imprimatur or some statistician saying this will really answer the question. And doing one where? On Route 80. On the Turnpike? On the Parkway?

It looked like the technology really hadn't been agreed upon by the statisticians. I don't know that it has been to this day.

But I do understand most recently there's new technology with regard to radar guns that can also take photographs of the occupants of vehicles. And there's been some talk about utilizing that as the first type of study you can do, at least a speed study.

SENATOR ROBERTSON: Well, even separate and apart from the baseline question, going back to the consent search data, for instance supposing you were dealing with a trooper who's the arresting officer in a case that's before a court. Whose statistics don't appear to be that abusive, or don't appear to be that troublesome when, you know, the rest of the barracks might be, let's just say, as an example. Wouldn't it pay to do a substantive analysis of the consent search data in order to come to some realization such as that?

MR. FAHY: I'm not opposed to doing a study on consent to search data, sir. I'm just saying we didn't get to the simple study, a speed study versus actual reality, what took place. And it's fairly easy.

If we talk to the experts and try to get into the reasons -- if you want to do an arrest study or if you want to do a consent to search study, it's much more complicated, the variables.

SENATOR ROBERTSON: Your --

MR. FAHY: I'm not saying there aren't certain numbers that can't alert you that there may be a problem.

SENATOR ROBERTSON: But you weren't prosecuting speeding tickets. You were prosecuting serious crimes involving drug possession and so forth.

So, my point being this, it's not just a question of the stop data. It's a question of the consent to search data.

Have you ever been stopped for a search?

MR. FAHY: Sir -- fortunately, no.

SENATOR ROBERTSON: Have you ever been stopped for speeding?

MR. FAHY: Yes.

SENATOR ROBERTSON: Okay. When was that?

MR. FAHY: Do I have to answer?

(Laughter)

SENATOR ROBERTSON: And --

MR. FAHY: It's a complex issue, sir. In any --

SENATOR ROBERTSON: No, but -- no, I'm serious when I ask this. Because, you know, we've been spending a lot of time here talking about who knew what when, and we're getting a little bit away from -- and I understand why those are important questions. We're getting a little bit away from the issue of racial profiling and the issue of what happens out on the street, the extent to which innocent citizens may be subjected to intrusive searches. And sometimes on the basis perhaps of their ethnicity.

MR. FAHY: It happens --

SENATOR ROBERTSON: So, that's one of the reasons -- that's one of the reasons I'm asking you if you've ever been stopped. The answer is yes.

I've take it you have never been searched, however.

MR. FAHY: No.

SENATOR ROBERTSON: You have never asked to be searched?

MR. FAHY: No.

SENATOR ROBERTSON: And you're familiar with what is done when a search takes place, correct?

MR. FAHY: Well, generally. I've never -- believe me, I know that I'm not a police officer --

SENATOR ROBERTSON: Well --

MR. FAHY: -- I'm a lawyer.

SENATOR ROBERTSON: Right. Right. But notwithstanding, lawyers are able to make observations of real life --

MR. FAHY: Well, I've never been one of those lawyers that wanted to ride along with the cops. I'm an office lawyer, trial lawyer.

SENATOR ROBERTSON: Well, I'm looking at it from the point of view of the motorist. You can understand that it's a reason -- it's a -- it's a significant intrusion to have your person and your car searched, correct?

MR. FAHY: I would think so.

SENATOR ROBERTSON: That being the case, it didn't occur to you that it was a good idea to take a look at consent search data to find out if some groups are being asked to have their cars searched more than others?

MR. FAHY: Well, in theory, sir, I think that there's a lot of studies that can be done. But I don't know anywhere in the country where they have been done. In theory, maybe this Committee can appropriate money to do a study like that. I think it's a wonderful issue to investigate.

But it hasn't been done in this jurisdiction or any other. I'm fairly familiar with the cases and the issues and I don't know of any jurisdiction that's done violative surveys in a simpler area, such as stopping, let alone getting into consent to searches and arrests.

And I just want to point out one thing. I'm not just taking this out of a vacuum. In the Gloucester County case, the judge said he would not consider arrest information.

And in the -- in the Middlesex County case, they didn't say they would get into arrest information. They accept it for what it's worth because they have nothing to compare it to. And the Public Defenders didn't do the study, and so we didn't do a study.

Now, I know of none in the country. But is it a good idea? I would think so if this is a big issue, a national issue now.

I'm just saying from the experts I talked to, this is a big issue. It's going to be costly, many variables, sure. It could be done, I guess.

SENATOR ROBERTSON: All right. Let me move on to something else.

With respect to the review of documents by the interim report team, focusing your attention to 1999, there was an interim report being prepared. You indicated that you were shown certain documents and asked whether or not you had ever seen them before, do you recall that?

MR. FAHY: Yeah, in about a five-minute stop by the office type of deal.

SENATOR ROBERTSON: Okay. And who was it that stopped by your office?

MR. FAHY: Paul Zoubek came by and he said did you see these documents? And I said, no.

SENATOR ROBERTSON: Did it ever occur to you at that point, or subsequently, that that stop and your response would be used or cited as the basis of a good faith belief that the State Police had withheld documents?

MR. FAHY: I certainly didn't intend it for that purpose, sir.

SENATOR ROBERTSON: Would you think that that conclusion is a fair one to the State Police?

MR. FAHY: Not on what I provided to them. I don't know what else they looked at. I wasn't part of the review team. But not -- not based upon my limited comment, no.

SENATOR ROBERTSON: That's all I have, Mr. Chairman.

Oh, I have one quick question for Mr. Rover, I'm sorry.

SENATOR GORMLEY: You have a quick question?

SENATOR ROBERTSON: With respect to -- with respect to memos that you wrote, what were your instructions, if any, as to whom to copy or whom not to copy on those memos?

MR. ROVER: No instructions. I mean -- I didn't have any instructions. I think most of the memos I wrote went to Alex. And there was no instruction to or not to copy anyone. Like on my options memo, I addressed it to Jack also, that was at Alex's request, rather than just send it to Alex.

SENATOR ROBERTSON: That's all I have.

SENATOR GORMLEY: Senator Kosco?

SENATOR KOSCO: Thank you, Mr. Chairman.

Mr. Fahy, just -- I get the impression through these hearings that the A.G.'s office was more concerned about representing the State and to prove that racial profile wasn't happening than to come to the conclusion that, yeah, it probably is happening and what are we going to do to eliminate it. Am I getting the wrong impression here?

MR. FAHY: Not totally. It's half and half, sir.

I say -- and I'm proud to say the fact that nowhere in no court did I, representing any administration, go in and say that racial profiling does not take place in the State. That's too broad a statement.

What we were saying was that it is not an official sanction practice. That to the best of our knowledge, actions being taken through the revision of S.O.P.'s and training and if there is evidence that a particular trooper or group of troopers is presenting -- is conducting this activity that actions can be taken.

But the information that is presented in the Soto or Charles Ellis Jones cases or Kennedy didn't establish that in our mind. I know the -- and we had -- we had a win in Warren County. We had a win as to the issue of pattern and practice of the troop as a whole in Middlesex. And then we lost a case in Gloucester County.

So, that was -- that was something that had to be addressed further after Gloucester County.

SENATOR KOSCO: We more or less established that we did have some type of a pattern of racial profiling. And in your opinion, who do you think should have initiated the remedy for this? Where should this remedy have come from?

We've been asking questions here and we've been asking a specific question: Has anyone ever come to you and said here's a problem, this is what we should do about it? Who should have initiated that?

MR. FAHY: Well, we understood that it was an issue and a problem right back to the time we worked --

SENATOR KOSCO: Yeah, but who should have initiated a fix?

MR. FAHY: I think people tried to initiate a fix. I think Colonel Dintino did. I think Bob DelTufo did. I think Carl Williams did.

And we can be critiqued as to how much was done, but efforts were made. And maybe they weren't good enough, but they're as much as I've seen anywhere else in the country. And if you want to criticize us, we did the best we could.

SENATOR KOSCO: In reviewing all the documents, most of the -- most of the documents do not CC the Attorney General. They CC the assistant, the CC other people, supervising deputies, but none of the documents specifically carbon copy the Attorney General's Office direct.

MR. FAHY: I don't -- there's a hundred --

SENATOR KOSCO: Is there -- is there a policy that everything goes through a channel before it gets to the Attorney General?

MR. FAHY: Well, generally there's a chain of command in the office. And if you walk through a boss, you send it through your boss, yes. Maybe not as strict as the military, but pretty much so.

Now, if you're working on a particular project, there's a memo or two that I sent directly to Peter Verniero. That's because I got a call from his office that he wanted something. Like what was that information you had on the violator survey. So, he's my boss. I would go -- I would send that to him.

But generally, when I was in Legal Affairs, I would go to the Legal Affairs Director. If I'm in Criminal Justice, I work through the Criminal Justice Director.

It's not as strict as the military, but there's definitely a chain of command, sir.

SENATOR KOSCO: Thank you.

Mr. Rover, you -- you've outlined here sort of specifically that you were told to respond only, don't ask questions. You didn't make decisions. No freelancing. You talked directly to Mr. Waugh. Is this -- is this the -- these are the facts, right? That's exactly what you were told?

MR. ROVER: Yes, sir.

SENATOR KOSCO: I have the letter here that -- from April 22nd, 1997 from you to Mr. Waugh. And in this letter, you make a whole bunch of recommendations or suggestions and throughout the letter it's I suggest, I suggest, I suggest, I propose. And -- so, which is it?

MR. ROVER: I --

SENATOR KOSCO: Did you not have the ability or the authority to make suggestions to him or did you just respond only to the -- or did you ask to send down to the State? To the Federal Government?

MR. ROVER: The answer to that, Senator, is prior to writing that memo, I talked about that memo with Alex. That's the options memo.

So, he knew. And he asked me to prepare that memo.

SENATOR KOSCO: So, you did have the opportunity make suggestions and recommendations?

MR. ROVER: I did talk to Alex. But I wasn't to initiate anything independently. But I -- on that memo, for example, I spoke with Alex and he -- we talked about those two issues. And he asked me to prepare what he called an options memo. So, in that respect, yes.

SENATOR KOSCO: Thank you.

SENATOR GORMLEY: Okay. Senator Lynch?

SENATOR LYNCH: Mr. Fahy, Mr. Rover, have either of you discussed your testimony or view documents with others on the witness list or superiors in your respective spheres in the last three weeks?

MR. FAHY: Well, Debbie Stone works in my office. And we've both talked a little bit about coming over here. I don't think I talked to George in the last three weeks.

SENATOR LYNCH: Anyone else?

MR. FAHY: Not of substance. I asked Paul Zoubek the other day how'd it go. And he said it was a long day for him like it was for me.

SENATOR LYNCH: But you didn't review documents with anyone?

MR. FAHY: Oh, I did, with my -- with the lawyers from the Department.

SENATOR LYNCH: Right, other than the assigned lawyers?

MR. FAHY: No, sir.

SENATOR LYNCH: And you, Mr. Rover?

MR. ROVER: The same --

SENATOR LYNCH: You had any phone calls in the last two weeks from current superiors or previous superiors or anything like that?

MR. ROVER: No. No.

SENATOR LYNCH: Okay. Mr. Fahy, why didn't you attend the Littles Committee meeting in October of '96, do you know?

MR. FAHY: I have no idea, sir. I -- I wouldn't try to attribute any bad motive on the part of the State Police for my not being there.

SENATOR LYNCH: Okay. So, you weren't noticed?

MR. FAHY: I might have been. I have a lot of course cases, too --

SENATOR LYNCH: Okay.

MR. FAHY: -- besides profiling. So, I could have been in court.

SENATOR LYNCH: And in the earlier meetings, the three meetings or so that you attended in the spring and early summer of 1996 of the Littles Committee, was there a discussion as to how information would flow and whether there'd be any memoranda about the meetings and whose responsibility it would be to go forward in respective spheres?

MR. FAHY: No. I knew that obviously people would go forward in the areas they worked in because the Colonel had assigned people from Internal Affairs and training and -- so, I -- it's probably logical who would go forward in certain areas.

But with regard to reporting, I never even knew Tommy Gilbert took down notes and minutes.

SENATOR LYNCH: Did you make any notes?

MR. FAHY: I may have made a legal pad a note or two, but --

SENATOR LYNCH: But you didn't keep a file or folder --

MR. FAHY: No.

SENATOR LYNCH: -- regarding your participation in the Littles Committee meetings?

MR. FAHY: I may have. I think -- I think my attorney said that you found out about the agendas because I had them in my folder.

SENATOR LYNCH: But you didn't keep your own personal notes?

MR. FAHY: And I didn't keep them the way that I do a lot of other folders, like a litigation folder. It was much more informal, just threw in whatever I got.

SENATOR LYNCH: You made a statement earlier that sometime during the course of 1996 that there was a -- you were somewhat happy because there was an increase in the percentage of reporting on call logs of race of the driver and you also indicated there was an increase on the patrol charts.

MR. FAHY: That's -- I viewed that as a very good thing.

SENATOR LYNCH: But isn't it a fact that there was never any indication the patrol charts of race until the latter part of 1998?

MR. FAHY: Well, I may get a little -- I may be a little confused about the S.O.P. F-3 and the Colonel's directive. I think there was internal debate in the State Police about what records it would change.

I know over the course of the years, I had suggested maybe putting race on tickets. I was frustrated and the Court was frustrated that we couldn't get this information. And I think in the beginning, they decided that the trooper would call it in and the dispatcher would mark it down. And if there was a change later on, maybe that did happen. But I wasn't intimately involved in making those decisions or talking to them about it.

SENATOR LYNCH: But insofar as having race identified on the patrol charts itself filled out by the stopping trooper, you don't -- you're not familiar with when that was finally put on the charts?

MR. FAHY: By '98 -- if you're representing it happened in '98, that was so far out of giving legal advice to the State Police on any issue --

SENATOR LYNCH: But you indicated earlier in your testimony that you were happy that that was starting to happen in large percentages in 1996.

MR. FAHY: Yeah, but I may have misunderstood. Where it was coming from, whether it was coming from radio charts or patrol logs, I, frankly, didn't care as long as we had it somewhere.

SENATOR LYNCH: When it comes to alerting you to a problem involving high percentages of minorities and consent searches, you don't need a traffic survey or a violator's survey in order to get a warning that there may -- that there's an alert of a problem going on out there, do you?

MR. FAHY: No, not to get -- not to get an alert. To resolve the issue --

SENATOR LYNCH: I'll get to that.

MR. FAHY: -- you do -- under the case law, you do, sir.

SENATOR LYNCH: I'll get to that. In terms of determining that there is obviously some problem out there, if you're getting -- if you're getting 90 percent numbers back on minority consent to search, you know you've got a problem.

MR. FAHY: That may raise a flag, sir.

SENATOR LYNCH: And 90 percent, as well?

MR. FAHY: Yeah, I don't -- I don't know where you would draw the line or where a court would but --

SENATOR LYNCH: Right.

MR. FAHY: -- the higher the number, obviously --

SENATOR LYNCH: You're talking now about how you would litigate it.

MR. FAHY: Not how I would litigate it.

SENATOR LYNCH: Well, if you were going to do a scientific analysis of consent to search percentages of minorities versus non-minorities and so forth, you would be actually doing that to somehow explain away or attempt to explain away why you're getting 80 percent and 90 percent minority consent to search, wouldn't you?

MR. FAHY: Not necessarily, sir. I mean the issue of where the numbers should be --

SENATOR LYNCH: What could you --

MR. FAHY: -- is very complex.

SENATOR LYNCH: What could you find on the other side of that equation to be helpful?

MR. FAHY: Well, the other side of that equation, sir, is for a long time. And I explained this to Mr. Chertoff, the State Police have been publishing reports, the State Police Annual Reports every year as long as I know, the Uniform Crime Reports. And the arrest rates are like -- I think -- the Colonel may be better to answer this, 46, 47 percent. That's reported in the newspapers.

To me, as a person, is that troubling? Raises a flag? Yeah, a little -- in my -- if I was a minority, I would probably would even be more sensitive to it. But what's been done about it?

SENATOR LYNCH: But you would be --

MR. FAHY: And is it the right number? I have no idea.

SENATOR LYNCH: Aren't you more concerned -- isn't the most dramatic action taken out there a search?

MR. FAHY: No. I think the most dramatic action is an arrest or somebody getting shot.

SENATOR LYNCH: In terms of stopping versus searching, which is more significant?

MR. FAHY: Oh, obviously search.

SENATOR LYNCH: Okay.

MR. FAHY: Searching is much more intrusive.

SENATOR LYNCH: So, if you're yielding raw data high percentages of minorities and consent to search, that's significant, isn't it?

MR. FAHY: Yeah, I would think so.

SENATOR LYNCH: In the -- and you were in the December 24, '96 meeting and the May 20 whatever it was with Peter Verniero that -- in which there was some discussion about the Department of Justice inquiry?

MR. FAHY: Yes, sir.

SENATOR LYNCH: And in both cases, you indicated that the then Attorney General was concerned about this being described as an investigation, correct?

MR. FAHY: He didn't want to call them investigations, sir.

SENATOR LYNCH: And it was suggested earlier on --

MR. FAHY: And he didn't want to sign a consent decree either.

SENATOR LYNCH: And it was suggested earlier that he was faced in May of 1997 with not only the ramifications of what was going on in the Soto appeal, but also the Justice Department inquiry and that -- so, there were significant issues, I think, was the term, that were on the table.

MR. FAHY: I don't understand the question. If you --

SENATOR LYNCH: Let me ask you this. Besides the fact that you had this Department of Justice inquiry going on in May of 1997, which whether you call it an investigation or not is irrelevant to me --

MR. FAHY: Right, it was going on.

SENATOR LYNCH: And you have the Soto appeal, the interim appeal coming to a -- coming to a head --

MR. FAHY: Yeah, the brief was filed in the spring, I think, of '97.

SENATOR LYNCH: In the Attorney General's quest to have this not described as an investigation, did you sense at all that this had something to do, as well, with the fact that you had a gubernatorial election going on?

MR. FAHY: He didn't use those words, sir. He didn't say anything like that to me. But, you know, you'll have to ask him.

SENATOR LYNCH: And you, again, made no notes of your participation in the December 24, '96 meeting with the Attorney General as well as the May meeting with the Attorney General -- May, '97?

MR. FAHY: I don't think my practice, sir, is to bring a legal note pad. But if -- and maybe I can jot down a word or two. But I don't have a direct assignment, then that note pad may just have had the page ripped off and thrown away.

Obviously if I have a direct assignment that I need the notes for later, I'll save it until the assignment's done.

SENATOR LYNCH: Mr. Rover, in December, '96, January, '97, you're approached by Alex Waugh to take on this responsibility of acting as a go between in retrieving information for the Department of Justice?

MR. ROVER: Yes.

SENATOR LYNCH: And at that time, you were at the ABC?

MR. ROVER: Yes, I was the DAG Three in the --

SENATOR LYNCH: Did you find that unusual that they would be calling upon you in your role at the ABC to become the, in effect, conduit and intermediary between State Police and the Department of Law or Criminal Justice and the U.S. Department of Justice?

MR. ROVER: Yeah, I found it unusual. At the time, I was flattered. And now I'm not.

SENATOR LYNCH: In retrospect --

(Laughter)

SENATOR LYNCH: In retrospect, do you have a clear understanding of why you would be put in that position today?

MR. ROVER: Now? No. I don't know if it was Alex's choice. I had worked with him before --

SENATOR LYNCH: Well, didn't it become clear to you somewhere along the line that they wanted to have someone responsible for the interaction with the Department of Justice and the State Police and the retrieval of documents outside of the high echelon of the Attorney General's Office, as well as outside of Criminal Justice?

MR. ROVER: I can't answer that. There was nothing said to me that that was the reason. I don't know if it was -- if that was a reason or if it was because Alex wanted to rely on it. I don't know, sir.

I mean I understand your question and you're scratching your head. I understand that.

MR. FAHY: Senator, an important event happened during that time period. Legal Affairs, which was the staff that had been reviewing this under Peter Perretti, Bob DelTufo, Debbie Poritz had been disbanded.

So, you understand, there weren't -- the staff wasn't on the floor anymore that had been handling this issue.

Where they would look otherwise, the Division of Law --

SENATOR LYNCH: First of all, Mr. Fahy, I didn't ask you the question

But secondly, now that you're on it, aren't there scores of people serving in the Division of Criminal Justice --

MR. FAHY: Yes, sir.

SENATOR LYNCH: -- who could have been assigned this task?

MR. FAHY: Yes, sir. I'm just saying the staff that had been working on it --

SENATOR LYNCH: You answered the question.

MR. FAHY: -- was disbanded.

SENATOR LYNCH: How often, Mr. Rover, did you start to communicate with Tommy Gilbert from January through December of 1997?

MR. ROVER: It's hard for me to answer. I would imagine in January, February, a little bit more frequently. And then I think it got infrequently. And then it became a little bit more frequently towards --

SENATOR LYNCH: And more frequently --

MR. ROVER: -- somewhere --

SENATOR LYNCH: -- might be -- mean he was contacting you two or three times a week?

MR. ROVER: Maybe not that often, but at least once a week.

SENATOR LYNCH: Um-hum. And that was usually information exchange?

MR. ROVER: In most cases, yes.

SENATOR LYNCH: And he would alert you to what he was doing?

MR. ROVER: A lot of times it was me contacting him saying maybe I got a phone call that, hey, can you speed-up patrol charts for this particular day or something.

And there were times he called me. I -- it's hard for me to recall.

SENATOR LYNCH: For instance, when the 30 random dates were selected and finally agreed upon after some debate, did Tommy Gilbert give you any indication at that moment in time or that point in time how long it would take him to retrieve this information for those 30 random dates?

MR. ROVER: I don't think he -- I don't think he had an idea initially.

SENATOR LYNCH: And was he communicating with you then on a weekly basis as to what he was retrieving with regard to those 30 random dates?

MR. ROVER: I don't recall. I think there may have been a time period early on where I didn't hear from him as often, maybe the first month or two while he was putting stuff together. And then maybe hear from him more towards the end.

SENATOR LYNCH: And when did Alex Waugh leave?

MR. ROVER: I think December -- December of '97 or January of '98.

SENATOR LYNCH: And from that moment forward, did you -- you began reporting to -- through the same chain of command to Hespe?

MR. ROVER: Yes.

SENATOR LYNCH: How often did you talk to Hespe about the ongoing with the Department of Justice?

MR. ROVER: I can't recall talking to him until December of '98.

SENATOR LYNCH: Until December of '98? From January -- did he go there in January of '98?

MR. ROVER: I don't know -- whenever he came there. I can't remember having much contact with anybody through '98.

SENATOR LYNCH: I thought that you felt it your responsibility originally to communicate pretty much everything you found out to Alex.

MR. ROVER: Yes, I did. But there was --

SENATOR LYNCH: You didn't feel the same responsibility once Hespe got there?

MR. ROVER: No, that's not true. There were really no questions emanating out of the Department of Justice. I think the -- I got the impression they were waiting -- it seemed from the questions I was getting from Justice that they were waiting for the appeal.

SENATOR LYNCH: Well, actually you were -- you -- previous to Alex leaving, you had been taking his lead as to how to send the information into the Department of Justice, did you not?

MR. ROVER: (No verbal response.)

SENATOR LYNCH: And you continued after that to have a flow of information from you to the Department of Justice in the early months of 1998, did you not?

MR. ROVER: Yes, I did.

SENATOR LYNCH: And did you get Hespe's permission to do that?

MR. ROVER: I may have had a discussion or two with Dave Hespe. But what I'm saying is a lot of the issues regarding what were the random dates, something like the option memo, they weren't coming up anymore.

SENATOR LYNCH: But information was flowing from you to the Department of Justice.

MR. ROVER: Some information was flowing.

SENATOR LYNCH: Weren't you memoing Hespe on that?

MR. ROVER: No, I wasn't.

SENATOR LYNCH: Nothing?

MR. ROVER: No, I wasn't.

SENATOR LYNCH: And no oral communication either?

MR. ROVER: I can't -- I can't recall any oral communication.

SENATOR LYNCH: So, now you're freelancing?

MR. ROVER: No, sir, that's not correct.

SENATOR LYNCH: Well, who are you reporting to?

MR. ROVER: I'm reporting to Dave Hespe. But there were no issues that came up.

SENATOR LYNCH: Your -- you -- you have a constant flow of documents to the Department of Justice in the early part of 1998, that's not an issue?

MR. ROVER: In early 1998, I may have spoken to Dave Hespe and let him know that there are some additional documents going out and there may be in the couple of times during 1998, but not much.

SENATOR LYNCH: Don't you think he'd be interested in seeing what those documents were and are?

MR. ROVER: (No verbal response.)

SENATOR LYNCH: For instance, don't you think he'd like to see all the results of the -- of the random audit and the stop data and other issues that you were forwarding along to the Department of Justice?

MR. ROVER: I wasn't forwarding that information to the Department of Justice.

SENATOR LYNCH: My track shows that in August of '98, you informed the Department of Justice that the State Police vehicles should be outfitted with video cameras by 1/1/99.

MR. ROVER: Correct.

SENATOR LYNCH: Where'd you get that information from?

MR. ROVER: I would imagine Sergeant Gilbert.

SENATOR LYNCH: Did you think that was significant enough to report to Hespe?

MR. ROVER: I may have said something to Dave Hespe then, I don't recall. I --

SENATOR LYNCH: But nothing in your file and no memos?

MR. ROVER: No, sir.

SENATOR LYNCH: And you sent the Department of Justice on December 8th, '98 interoffice communication on patrol charts, same race and sex?

MR. ROVER: December?

SENATOR LYNCH: December 8th, 1998?

MR. ROVER: I may have spoken to Dave Hespe about some of those matters. I don't recall.

SENATOR LYNCH: Well, first, did you recall sending that in December?

MR. ROVER: If you have a document in front of you, Senator, then, yes.

SENATOR LYNCH: But you have no memo to Hespe, nor do you have any current recollection of talking to Hespe about it?

MR. ROVER: No, I don't.

SENATOR LYNCH: So, from January of 1998 into the second week in December, 1998, you have no recordation or no recall of any interaction with Hespe, who you were reporting to?

MR. ROVER: I don't think there were any memos going to Dave Hespe.

SENATOR LYNCH: Was there any interaction between you and Hespe regarding the amount -- items that you were forwarding along to the Department of Justice and with the pace of retrieval of information, et cetera?

MR. ROVER: I believe there was some discussions. I don't think there was anything significant.

SENATOR LYNCH: Did anyone superior to you ever suggest to you from the time you had engaged here in the early part of January of 1997 that they weren't interested in written documentation of material?

MR. ROVER: That they weren't interested in?

SENATOR LYNCH: Written documentation of material from you.

MR. ROVER: No. In other words, don't send me something? I just want to make sure I --

SENATOR LYNCH: Without saying that in so many words.

MR. ROVER: Okay. No. No one ever said in any kind of words, you know, make sure you don't copy me on that or --

SENATOR LYNCH: So, what documentation of the issues that Tommy Gilbert was retrieving for you, for instance, the -- the 30-day random audit, what -- what documentation did you forward to your superior on that in 1997 or 1998?

MR. ROVER: In talking with Alex, I would just tell him documents were going out with respect to the sample dates. But I did not have -- I didn't have a checkoff sheet for him to know --

SENATOR LYNCH: Would you tell him what was in those documents?

MR. ROVER: They were patrol charts. I think he knew the categories of documents.

SENATOR LYNCH: Would you tell him the significance of them in terms of percentage of minorities and so forth?

MR. ROVER: I did not do a statistical breakdown.

SENATOR LYNCH: And did he ask for it?

MR. ROVER: No, he did not.

SENATOR LYNCH: And did he ask for you to send them the memos?

MR. ROVER: Say that again, sir?

SENATOR LYNCH: Did he ask for you to send him copies of the memos you were sending down or the correspondence you were sending down to the Department of Justice?

MR. ROVER: I think early on, he was copied on the initial ones. And then I believe he didn't want to be copied anymore.

SENATOR LYNCH: You remember that particularly that he made it clear to you that he didn't want to be copied anymore?

MR. ROVER: I don't -- I didn't put any significance -- I think he saw them as a -- as a transmittal memo.

SENATOR LYNCH: Um-hum.

MR. ROVER: I did -- let's put it this way, I didn't just stop copying him.

SENATOR LYNCH: How about an -- would he want an information flow that he would have a copy of as to what you're actually providing the Department of Justice? Since you had been put into this position as an intermediary?

MR. ROVER: He didn't ask for that, sir.

SENATOR LYNCH: Thank you.

SENATOR GORMLEY: Senator Matheussen?

SENATOR MATHEUSSEN: Mr. Rover, I know it's been a long afternoon, I won't be too long.

But I have -- I'd like to take you back, if I could, to February 26th, that was the day of your deposition, your questioning.

MR. ROVER: Oh, okay.

SENATOR MATHEUSSEN: Your questioning by this Committee.

MR. ROVER:  Okay.

SENATOR MATHEUSSEN: By Mr. Chertoff. Okay. During that period of time -- actually Senator Gormley took over in one section of the questioning, and I'll just readd it -- read it briefly for you and then perhaps I'd like you to comment on it. It says, Senator Gormley now. "Okay. And you saw your role as focusing with him on the information he was providing as information interfaced with the Justice Department's review."

Now, he's talking about Detective Gilbert.

Your answer, "Yes, sir."

Senator Gormley, "Okay. During this period of time, let's say January 1st, the first few months of 1997, as a result of that relationship with Sergeant Gilbert, you were having conversations with Sergeant Gilbert."

Your answer, "That's correct."

Senator Gormley, "Okay. During that period of time, Sergeant Gilbert relayed to you, based upon the reviews that he had done, that he had concern regarding the vulnerability of New Jersey, once the information related to New Jersey, in terms of the reviews that he's done was compared to Maryland's. Did he express concern saying, given the statistics that I have and given the statistics of what caused the action in Maryland, we have a problem?"

Your answer, "No. I will tell you --"

Senator Gormley, "He never said that?"

The witness, you, "What Tom Gilbert said to me was that at some point that our consent numbers are in the ballpark with Maryland and there is an appearance there, end quote. Now, maybe I'm just saying that, what you said differently. But there's an appearance there that I want you to make sure you tell Alex, Alex Waugh."

Senator Gormley, "Okay. Well, now because I don't want to put words in your mouth, it sounded like a problem to him, didn't it?"

Your answer, "No."

Senator Gormley, "It didn't sound like a problem?"

Your answer, "I didn't perceive it that way, sir. I did not. Well, hold it, when I say a problem here we go, maybe I'm not disagreeing with you. The appearance that our numbers were in the same ballpark as Maryland, that appearance concerned him."

Senator Gormley, "Let me ask the question. Do you think it was an appearance or fact? I mean I'm curious because he's gone, done a survey, and put raw data together. There is a question of appearance. But when there's an appearance, that's when you go out and you garner facts. Didn't he go out and garner facts and present them to you?"

Your answer, "No, he did not. He told me on two occasions, the first time he said, George, here's the Maryland case, our numbers are not in the same ballpark -- are in the same ballpark. I said -- he goes, could you make sure you let Alex Waugh know. I said, Tom, I'll do that. This is the first, I'm like, hearing about this. I don't even --"

Senator Gormley, "Did he go over the numbers with you?"

Your answer, "No, he did not then."

Senator Gormley, "Can I ask a question? Did he ask for the numbers -- did you ask for the numbers?"

Your answer, "No, I did not."

Senator Gormley asked you, and I ask you again, why didn't you ask him for the numbers?

MR. ROVER: I didn't ask for the numbers because -- and I think, Mr. Chertoff -- we touched on this a bit before. Early on, particularly in that time, I think I was only working on this about a month. And my focus was on responding to a particular request from the Department of Justice.

And I think at that time, it was for tickets and warnings.

When Tom gave me this information, I passed it along to Alex, but I didn't independently say, you know, give me information. It didn't register with me. And I think it -- it goes to the whole idea of freelancing meaning, George, report to me. And I was never asked to go back and say, Sergeant Gilbert, you know, give me those numbers.

SENATOR MATHEUSSEN: You went through the same questioning again and there was a second period of time when he came to you with some extra numbers. And at that time, he also asked you about a week later, he came to you and said there's some more information I have. And, by the way, did you tell Alex. And you responded, yes, I did.

At that time, Senator Gormley asked you again, "Did you ask him for the numbers? Did you ask him for the data?"

And you said, "No, I did not."

He also said, "Well, did Alex ask you to ask him for the numbers?"

And you said, "No, he did not."

Why -- I -- I can't imagine you can answer for Alex, I'll ask him this question when he gets here, but why didn't either one of you ask him for this data?

MR. ROVER: I can't answer for Alex and, again, for me, you know, looking back, I don't know. But it didn't register with me at that time. My focus was responding to particular requests from D.O.J. And it wasn't the big picture --

SENATOR MATHEUSSEN: Was it --

MR. ROVER: -- the big picture for me.

SENATOR MATHEUSSEN: Was it the big picture?

MR. ROVER: No, it wasn't.

SENATOR MATHEUSSEN: It was not?

MR. ROVER: It --

SENATOR MATHEUSSEN: Senator --

MR. ROVER: It is, but it wasn't for me.

SENATOR MATHEUSSEN: Senator Gormley asked you if you recognized it to be a problem. And you and he discussed the definition of a problem.

Let met ask it in a different way. Did you think what Sergeant Gilbert was giving to you, in terms of verbal information, the statistics that he had to back it up with, did you think that was significant information? If not a problem, did you think it was significant? That is consent searches and the numbers on them?

MR. ROVER: I don't remember statistics because the phrase he used was in the ballpark.

SENATOR MATHEUSSEN: Okay.

MR. ROVER: The words that I did use, though, were appearance and concern. And I think the word concern might fall into the category that you're talking about with significant. That the State Police was concerned.

SENATOR MATHEUSSEN: But were you concerned?

MR. ROVER: I think -- personally, yes, I think I was concerned. The numbers -- first -- from a lawyer's standpoint, you have one case where a result comes out in one way, and you have another case where the facts are leading the same way and you can perceive that the case will come out the same way in the second jurisdiction. So, yes.

And that would be why I would have made sure that I told Alex Waugh on two occasions.

SENATOR MATHEUSSEN: Let's talk on that level for a moment, if we could.

Aside from the social implications of racial profiling, the fact of the matter is, thinking like an attorney now, the fact of the matter is we had a very significant decision. As a matter of fact, it was so significant it was the first time it actually had ever occurred.

A judge found in favor of the defense when it came to the issue of racial profiling, did he not, in the Soto case?

MR. ROVER: Yes.

SENATOR MATHEUSSEN: Okay. Wouldn't that, to some degree, put the State's cases in other similar situations in jeopardy?

MR. ROVER: (No verbal response.)

SENATOR MATHEUSSEN: The decision that was rendered by Judge Francis in Gloucester County, couldn't that have put other cases of similar nature in jeopardy? As an attorney now.

MR. ROVER: I guess.

SENATOR MATHEUSSEN: Okay.

MR. ROVER: Yes. I think that's a fair statement.

SENATOR MATHEUSSEN: Did that pause -- did that give you some pause or some concern as an attorney that this could give us some problems?

MR. ROVER: My answer to that is that at time it didn't. And maybe part of it was I probably hadn't even looked at the Soto -- didn't know much about the Soto case at that point in time. I mean I'm not making an excuse. It just -- it didn't register with me.

Also I, you know, never practiced any criminal law. So -- but I understand, it's a fair point.

SENATOR MATHEUSSEN: Okay. Did you perceive your relationship with Sergeant Gilbert as being one of you're his supervisor in some respects?

MR. ROVER: No.

SENATOR MATHEUSSEN: Did you feel as though your relationship with Sergeant Gilbert gave you the opportunity to ask him to do certain things?

MR. ROVER: I never got --

SENATOR MATHEUSSEN: And he would have complied with.

MR. ROVER: I never got the sense that if I asked Sergeant Gilbert to do something he wouldn't do it.

SENATOR MATHEUSSEN: Did you get a sense that Sergeant Gilbert had some information that he shared with you verbally but there was certainly something to back that up with?

MR. ROVER: It didn't register then, but you -- it would be logical.

SENATOR MATHEUSSEN: It would be logical, okay. Did you think that Sergeant Gilbert should be in charge of an issue so significant that the State of New Jersey had just lost a case in Gloucester County on -- for the first time a judge recognizing racial profiling and throwing out our evidence. Did you think that was an issue that Sergeant Gilbert should be alone, left unattended, left unsupervised to decide what he should do with that documentation? Or did you think you should enter into it as a conduit between the Attorney General's Office and State Police?

MR. ROVER: I guess I have a couple thoughts. One is if it went up his chain of command, that would be one area.

And second of all, I don't thin it should have fallen on Tom Gilbert.

SENATOR MATHEUSSEN: Okay. Did you have discussions between yourself and your supervisor, Mr. Waugh, about these conversations with Tom Gilbert -- Sergeant Gilbert?

MR. ROVER: Yes, I -- I had two conversations. And then I had discussions about the options memo.

SENATOR MATHEUSSEN: And during those conversations, he never once asked you to go back to Gilbert and get that documentation?

MR. ROVER: No, because if he did, I would have.

SENATOR MATHEUSSEN: You would have. Did you have any discussions in that same respect with Paul Zoubek about what Sergeant Gilbert had told you?

MR. ROVER: Could you -- I want to make sure I understand the question.

SENATOR MATHEUSSEN: In January, beginning of 1997, did you have a similar discussion with Paul Zoubek, the same kind of discussion that you had with --

MR. ROVER: I don't even think I -- I don't -- I don't even know if I knew him then.

SENATOR MATHEUSSEN: Okay, fine. And Attorney General Verniero?

MR. ROVER: Oh, on.

SENATOR MATHEUSSEN: Definitely, no. Okay.

Let me go to a report that was issued -- and I think Mr. Chertoff read for you the opening -- opening phrases from what was the draft of the interim report to the Governor on racial profiling. It was prepared by General Verniero and First Assistant Attorney General Paul Zoubek.

And the opening comments that apparently were somewhat left out, but were left in the context of the report, I'll read them again. "We feel constrained to comment that some of the statistical information we rely upon, including particularly revealing data concerning consent searches were only recently disclosed by the State Police to the Office of the Attorney General."

"Certain internal studies and audits prepared at the request of the superintendent were not made known to the Deputy Attorney's General who were representing the State in the Soto litigation. The circumstances has seriously compromised the State's litigation posture and also has needlessly delayed initiating appropriate remedies and reforms."

Are you aware of that statement?

MR. ROVER: I see it in front of me, yes.

SENATOR MATHEUSSEN: Were you aware of it when it was put out in the interim report in April of 1999?

MR. ROVER: No.

SENATOR MATHEUSSEN: Do you think that's a fair statement to make in 1999 after what you knew in 1997?

MR. ROVER: This was a draft? I mean I just want to be careful.

SENATOR MATHEUSSEN: It was a draft. But later on, that same language or language similar to it were put in the final document. And there's also a subsequent hearing on it.

MR. ROVER: I think maybe I can answer your question.

SENATOR MATHEUSSEN: Please do.

MR. ROVER: Given that there was a May 20 meeting, in particular, in 1997, I think you could say that there was a discussion about statistical information and consent to searches.

SENATOR MATHEUSSEN: Do you think it would be fair if the State Police felt as though at that point in time that, hey, look, we had given you the information, you, the Attorney General's Office, not necessarily you, in particular, but you the Attorney General's Office. And now all of the sudden a report's coming out saying we didn't hand it over? Do you think that's a reason for them to be concerned or to be perhaps upset?

MR. ROVER: I would think that they might be upset, yes.

SENATOR MATHEUSSEN: At a public hearing held on April 26th by this Committee, April 26th, 1999 under questioning it was asked -- this question was actually posed by me, I'm now questioning First Assistant Attorney General Zoubek. I say, "But I'll go back to the beginning questions presented by the Chairman, Senator Gormley, which disturbed me when I read this report," meaning the interim report, the final version, "on Page 23 indicating that you had started compiling information in mid-March as a review team, but noticed that the information that you had been receiving, and I quote," quote now, "Some of which had not been previously been provided to the Office of the Attorney General, the Division of Criminal Justice," end quote. And I asked him then, "Who did not provide the information either to the A.G.'s Office or to the Division of Criminal Justice?"

I really never got an answer as to who it was. Eventually it said that the superintendent did not.

Again, knowing what you knew in 1997, do you think that's a fair evaluation of the relationship between the Attorney General's Office and State Police with regard to the information concerning consent searches that Sergeant Gilbert had been working on.

MR. ROVER: You ask hard questions.

SENATOR MATHEUSSEN: These are hard issues.

MR. ROVER: You have to give me a little leeway. In -- given the fact that there was a May 20 meeting in a certain -- to a certain extent, I think you could say that that was unfair. But I don't know if there was other information that, in fact, didn't come over here until March. So, I --

SENATOR MATHEUSSEN: Okay. Now, you said before in your testimony that there was a universe of information, you're not sure -- either it was you or Mr. Fahy who said that, but there was a universe of information, you're not exactly sure. But I'm only concentrating now on consent searches and the data that was compiled by Sergeant Gilbert.

MR. ROVER: Okay, I don't understand the question. Help me.

SENATOR MATHEUSSEN: I just -- there is no question.

MR. ROVER: Okay.

SENATOR MATHEUSSEN: The -- finally, you had said before -- I think it was either Senator Robertson or Senator Lynch who asked you, and you commented that you said that New Jersey was willing to accept the Department of Justice's pace when it came to providing them information. Why were we willing to accept the pace of the Department of Justice? Why weren't -- why not set our own pace? Why weren't we looking into profiling and trying to find out answers for ourselves? Why weren't we looking for an outside agency to do that for us?

MR. ROVER: I can only say that they were the instructions given to me.

SENATOR MATHEUSSEN: By whom?

MR. ROVER: Alex Waugh.

SENATOR MATHEUSSEN: Did you ask him why?

MR. ROVER: No, I did not.

SENATOR MATHEUSSEN: Did you know if he made those instructions himself or did he get those instructions from someone else?

MR. ROVER: I don't know, sir.

SENATOR MATHEUSSEN: Just as an aside, not now sitting where you are now, but do you think if we really wanted to solve the problem of profiling that we would have gone by the pace of the Department of Justice or we would have set our own pace?

MR. ROVER: Do I have to answer that?

SENATOR MATHEUSSEN: I think you did. Thank you. Thank you.

MR. FURNARI: I'll just take it. Thank you.

Mr. Rover, before you were given this assignment, did I understand you correctly that you had never ever been involved in a criminal case?

MR. ROVER: Let me make sure it's accurate, but I'm almost certain -- I certainly have never, to my recollection, tried a criminal case. I never worked in a -- did a trial in the Division of Criminal Justice.

In Legal Affairs, I didn't do criminal litigation.

MR. FURNARI: Did you ever --

MR. ROVER: I did most policy matters.

MR. FURNARI: Did you ever do a motion to suppress?

MR. ROVER: I don't believe I've ever done a motion to suppress.

MR. FURNARI: Did you ever litigate a case where there was issues of probably cause --

MR. ROVER: No.

MR. FURNARI: -- search?

MR. ROVER: No.

MR. FURNARI: And so you're over at this job at the ABC -- what's -- could you tell me what that means?

MR. ROVER: The Alcohol Beverage Control.

MR. FURNARI: And what are the -- what are the issues that they deal with at that office?

MR. ROVER: Drinking. I mean licenses --

MR. FURNARI: And --

MR. ROVER: -- things of that -- more administrative law.

MR. FURNARI: And then they gave you the authority to be the person to be dealing with the Department of Justice, the State of New Jersey's representative, Department of Justice, on the issue of racial profiling?

MR. ROVER: (No verbal response.)

MR. FURNARI: That's correct. I mean I know that's rhetorical.

It's -- you know, it's hard for us, I go -- I agree with Senator Kosco's analysis before that it's hard to see that the Attorney General's Office was concerning itself with the issue other than the legal stance of defending the State of New Jersey of any potential actions, rather than trying to get to the heart of the matter.

I want to say this, too. When we juxtapose it with the State Police, who seem to be reacting differently, discovering there's a problem, investigating the problem, doing research and coming up with data, making recommendations as to how one might attempt to resolve that, even though I'm not saying that the State Police are recognizing that racial profiling is going on, they're recognizing something's wrong with those statistics and looking for answers.

But Mr. -- Mr. Fahy, you litigated the Soto case, right?

MR. FAHY: Yes, sir.

MR. FURNARI: Now, if the defense attorneys in that case -- and they didn't -- but if they had the data that you were privy to that came from Sergeant Gilbert, would that have made their case better or worse?

MR. FAHY: That's just speculative, I don't know. Because the judge -- the reason the judge ruled that arrest data was not going to be admitted, and the Judge may have ruled the consent to search data was not going to be admitted, the judge was focusing on stop data. And that's --

MR. FURNARI: But that's -- I mean you're starting to get to the legalese issues of what this court may have done.

I'm just telling you when you start off your memo about the merits of your case through the Superior -- I imagine you do that --

MR. FAHY: I'm sure the defense would have tried to make something out of it, if that's what you mean.

MR. FURNARI: But it also --

MR. FAHY: But I don't know how it would have been received by the Court because they tried that in other cases putting arrest data in and courts have different reactions. The Courts would say that's apples and oranges, stop data versus arrest data.

MR. FURNARI: Yeah, but by the time we get to Sergeant Gilbert's data on consent searches, and you've seen those numbers, it certainly -- I think you're the one who said it, it raises a flag, right?

MR. FAHY: I've only seen them recently, though, sir. Yeah, we think high numbers and consent to searches, the defense would want to know.

I'm not saying strictly in the terms of Brady material, whether the State would have an obligation, clearly exculpatory. But if you want to get into issues of whether there would have been an obligation to turn it over or not in a litigation sense, no.

But I'm sure they would have wanted to have it, defense attorneys.

MR. FURNARI: Well, let's just ask -- let's go into that a little bit, and I don't want to bore everyone here with too much legalese, but even in the Brady sense, you mean you think that -- that that would be okay? Would have been okay for the State of New Jersey or the attorney who actually was trying the Soto case to have this data available to him and not produce it to the defense? It wouldn't be exculpatory?

MR. FAHY: That's a very tough question, sir. And, you know, being -- I don't know if you're a lawyer, but I -- to say -- if there were statistics in a case from 1987, '88, '89 dealing with stops and then you get more information from a decade later on consent to searches, whether you have an absolute discovery obligation under 313 of the Discovery Rule or under Brady, that's a tough call and I don't know what the final answer would be.

MR. FURNARI: And --

MR. FAHY: I'm glad I didn't have to make it.

MR. FURNARI: That's all I have.

SENATOR GORMLEY: Senator Zane?

SENATOR ZANE: Mr. Rover, did the -- whatever was going on from the Department of Justice, ever shift from a review to an investigation?

MR. ROVER: Not to my knowledge.

SENATOR ZANE: You testified earlier that -- for example, you had a Moorestown audit that you had in 1997. And I believe that your testimony essentially was that you had correspondence from the -- as well as apparently -- contact, as well, from the Department of Justice, and that particular document you held until 1998 before that was turned over, correct?

MR. ROVER: Yes, I had a conversation with Alex Waugh about that document.

SENATOR ZANE: And he's the one that told you to hold that.

MR. ROVER: Correct.

SENATOR ZANE: Did you personally believe that that document was well within the ambit of what the Department of Justice was requesting to conduct their review?

MR. ROVER: I thought it was relevant.

SENATOR ZANE: So, the answer is yes?

MR. ROVER: Again, I -- I think -- I thought it was relevant, yes.

SENATOR ZANE: Do you believe that the directive from Mr. Waugh to not give that information to the Department of Justice was lawful?

MR. ROVER: I want to be careful. What do you mean not lawful?

SENATOR ZANE: Do you feel it was -- do you feel it was legal in light of what they were asking for?

MR. ROVER: Well --

SENATOR ZANE: Do you feel that he was within the law to not provide that document to the United States Department of Justice?

MR. ROVER: I guess the answer to that would be yes. There was no legal obligation to provide anything. You know, I think this was a voluntary process, so to speak.

SENATOR ZANE: There was a --

MR. ROVER: And --

SENATOR ZANE: I'm sorry, go ahead, finish.

MR. ROVER: And I think coupled with the fact that the Department of Justice hadn't asked for that.

SENATOR ZANE: In light of your determination that it was relevant, do you think that it was moral not to give that document to the Federal Government, in light of what they had requested, especially in light of the fact that your position was to provide that information to the Federal Government, was it not?

MR. ROVER: I just don't understand moral, though.

SENATOR ZANE: You don't understand moral? Right from wrong.

MR. ROVER: I think it depends on how you interpret the relationship between us and the Department of Justice. And if our -- if the view of that relationship was we will cooperate with respect to documents that the Department of Justice asks for.

SENATOR ZANE: So, you play the game that if they don't ask for it, we're not going to give it?

MR. ROVER: I didn't -- I was -- they were my instructions.

SENATOR ZANE: If they don't ask for it, don't give it?

MR. ROVER: Basically, yes.

SENATOR ZANE: But they weren't aware you were playing that game, were they, the Department of Justice?

MR. ROVER: I can't answer. I don't know. I mean they had an opportunity to ask for documents.

SENATOR ZANE: How would they know what to ask for?

MR. ROVER: (No verbal response.)

SENATOR ZANE: I mean somebody testified they wanted to talk to some troopers and they were presented or persuaded not to, am I correct?

MR. ROVER: Oh, no, they were given permission.

SENATOR ZANE: Then I misunderstood that.

MR. ROVER: I'm sorry. They were --

SENATOR ZANE: My mistake.

MR. ROVER: They were given permission to do that.

SENATOR ZANE: Back to my same question, how would they know these documents existed or these reports existed?

MR. ROVER: I don't know, sir.

SENATOR ZANE: Do you have the document near you or available to you that constituted their requested for documents? Or their request for information, their being the United States Department of Justice.

MR. ROVER: They had a -- a blank form of request.

SENATOR ZANE: And you made a determination what -- that this document was a relevant document, consistent with that form?

MR. ROVER: Not necessarily consistent with that form, but just in general with what they were -- appeared to be looking at.

SENATOR ZANE: You indicated before that you did not practice any criminal law, correct?

MR. ROVER: That's correct.

SENATOR ZANE: Did it, at any point, occur to you this might be obstruction of justice?

MR. ROVER: No, sir.

SENATOR ZANE: Never entered your mind?

MR. ROVER: No, sir.

SENATOR ZANE: Never had a discussion with any superiors that this might be obstruction of justice, not providing requests and information to the United States Department of Justice?

MR. ROVER: I was following instructions from my superior and --

SENATOR ZANE: Well, there were a lot of Germans in the Second World War following instructions, but that didn't get them off the seat.

Did it occur to you that this might be -- I'm not saying it is -- that this might be obstructing justice?

MR. ROVER: I think I would have felt differently about it if we had a legal obligation to produce the documents, sir.

SENATOR ZANE: Therefore, it did not occur to you that this might be obstructing justice?

MR. ROVER: No, it didn't.

SENATOR ZANE: Did you have any opinion at all as to whether or not the directive not to provide the information, such as the Moorestown audit for 1997, was coming from anyone else other than your immediate supervisor?

MR. ROVER: I had no information.

SENATOR ZANE: Do you have any reason to believe that that would have been clear at some higher level than his level?

MR. ROVER: I know you won't like the answer, but it's not really -- it's a question that I think someone else should be answering.

SENATOR ZANE: Yeah, I understand that. And I -- and if you don't know, if you have no idea --

MR. ROVER: Okay, I don't. I --

SENATOR ZANE: You have no sense as to whether or not that decision would have been made at Waugh's level?

MR. ROVER: I really don't.

SENATOR ZANE: Okay. Senator Lynch asked you a question about freelancing with documents that were going to the Department of Justice, do you recall that question?

MR. ROVER: Generally, yes.

SENATOR ZANE: You did not like the term freelancing, correct?

MR. ROVER: That's correct.

SENATOR ZANE: Okay. But nevertheless, the fact remains that you were deciding for quite some period of time what documents when, totally on your own, were you not?

MR. ROVER: With respect to this stop and patrol charts and radio logs, yes.

SENATOR ZANE: And for what period of time were you doing that, making those decisions on your own? Was it months? Was it a week?

MR. ROVER: There was a general understanding of what documents were going to the Department of Justice. So, these categories of documents, they said, were fine to go.

SENATOR ZANE: Who's they that said that?

MR. ROVER: Alex Waugh.

SENATOR ZANE: But he wasn't there any longer, was he? And you now had a new supervisor, didn't you, David Hespe?

MR. ROVER: Yes, I did.

SENATOR ZANE: Was he telling you what documents to send or not send?

MR. ROVER: (No verbal response.)

SENATOR ZANE: I think you already testified he wasn't.

MR. ROVER: I don't recall specific conversations with him. The documents that generally went out in '98 were training materials.

SENATOR ZANE: Are you --

MR. ROVER: And then -- and --

SENATOR ZANE: I'm sorry.

MR. ROVER: And then another document, I think, that went out in December was information about the law enforcement summit that he asked -- that David Hespe asked me to send to Justice.

SENATOR ZANE: You presented a lengthy memo to Paul Zoubek in -- on February the 26th, 1999 regarding documents that had not been provided, am I correct?

MR. ROVER: That's correct, sir.

SENATOR ZANE: The caption under your -- under your name, it says, "To Paul Zoubek," and his position. Afterwards it says, from "George N. Rover, Assistant Attorney General, Division of Gaming Enforcement," is that what you were assigned to at that time?

MR. ROVER: Yes, sir.

SENATOR ZANE: So, you were assigned to Gaming Enforcement, but you were handling this, is that correct?

MR. ROVER: Yes. And prior to that, I was in the ABC.

SENATOR ZANE: I understand that. Could you explain why you were in Gaming Enforcement and you were handling this matter?

MR. ROVER: I changed jobs from the ABC.

SENATOR ZANE: Well, I understand. But what you were doing, was it Gaming Enforcement?

MR. ROVER: I'm sorry?

SENATOR ZANE: What you were doing now, was this Gaming Enforcement? Or were you, at the time you wrote this memo, no longer doing things regarding the racial profiling issue, and were you then off to Gaming Enforcement?

MR. ROVER: I was working in Gaming Enforcement at that time that I wrote that.

SENATOR ZANE: What would the Division have been that you would have been with when you were working on the issues of racial profiling and required you to provide --

MR. ROVER: The Division of ABC.

SENATOR ZANE: So, you were with ABC when you were providing the information --

MR. ROVER: Yes, sir.

SENATOR ZANE: -- to the Department of Justice. And the items that are on the letter -- you're familiar with the document, am I correct?

MR. ROVER: Yes, sir.

SENATOR ZANE: The items that are on that, I guess a three-page document, the decision not to forward these documents that you were revealing to Paul Zoubek, who made the decision not to forward all of these documents?

MR. ROVER: I think I went down the list. I think there were four or five that Alex did.

SENATOR ZANE: And then the rest you?

MR. ROVER: And there was a couple -- I think I testified that some of the other documents, I believe, had come in recently from State Police on some of the training materials.

SENATOR ZANE: Did you ever ask -- I mean you're a lawyer, you're an educated man. Did you ever ask either of your supervisors why you weren't provided that information?

MR. ROVER: I think on -- I have two answers to that. Some of the information had recently come in in one -- in certain situations.

In another situation, certain of the information was not asked for. And then in one situation, I think I admitted with the probable -- negative OPR's or whatever they're called, that Justice had just asked whether there were any other documents for those particular dates.

And I had spoken to Tom Gilbert, he said that I had them. And I had thought that they went with the investigation and arrest reports.

SENATOR ZANE: You attended a meeting, I believe, on May the 20th, 1997 with Attorney General Verniero and others, am I correct?

MR. ROVER: That's correct.

SENATOR ZANE: Where was the meeting held?

MR. ROVER: It was in the Attorney General's Office.

SENATOR ZANE: And was there a briefing of the Attorney General at that time on racial profiling?

MR. ROVER: What I recall is that a number of the items, if not all the items on the agenda, I felt, after the meeting were touched upon, if not covered.

SENATOR ZANE: Well, did somebody have to say to him, General, this is what's going on. We want to apprize you of the situation of racial profiling here in New Jersey?

MR. ROVER: I can't recall a lot of what happened at that meeting, sir.

SENATOR ZANE: He participated in the meeting, did he not?

MR. ROVER: Yes, he did.

SENATOR ZANE: Spoke at the meeting.

MR. ROVER: Yes, he did.

SENATOR ZANE: This isn't the meeting where we had the agenda, is it? The agenda that we talk about, is this the same meeting?

MR. ROVER: Yes, it is.

SENATOR ZANE: This is the meeting where he said he wouldn't enter into a consent order, am I correct?

MR. ROVER: Yes, it is.

SENATOR ZANE: Do you feel that he was briefed and familiar with the issue of racial profiling at the time of that meeting, based upon your observations of his participation and comments at that meeting?

MR. ROVER: I believe he had an understanding of the issues.

SENATOR ZANE: It didn't seem foreign to him, is that correct?

MR. ROVER: That's correct.

SENATOR ZANE: How long did that meeting last?

MR. ROVER: (No verbal response.)

SENATOR ZANE: If you recall.

MR. ROVER: It wasn't 15 minutes. But I don't think it was an hour and a half. That's about the best I can do.

SENATOR ZANE: So, when he made the comment that he would not enter into a consent order, consistent with what had happened in Maryland, you had no doubt that he understood the problem before he made a statement like that, is that correct?

MR. ROVER: I thought it was a strong statement.

SENATOR ZANE: Now I'd like you to answer my question.

MR. ROVER: Could you --

SENATOR ZANE: Yeah. You had a feeling -- did you have a feeling that in light of his response regarding a consent order, that he made that statement with a good understanding of the problem, sufficient enough to make an answer or a comment that he wouldn't enter into a consent order, is that correct?

MR. ROVER: Here's the spot you put me in and -- sometimes people say things to puff or whatever the word people use. I mean I had been in meetings. And, again, I'm not -- I'm not trying to characterize what he said, but sometimes I've been in meetings and I've said, they're not getting this over my dead body, you know. I know he made the statement. But for me to make the jump that you want me to make, I'm just a little hesitant. I -- you know, I testified that he made the statement. I just don't know if I can read into it all you want me to read into it.

SENATOR ZANE: Well, were there terms of the consent order discussed?

MR. ROVER: Oh, no.

SENATOR ZANE: So, it was just a concept?

MR. ROVER: I would say that would be accurate.

SENATOR ZANE: I'm sorry?

MR. ROVER: I would say that would be accurate.

SENATOR ZANE: And you already testified that you felt that he had sufficient knowledge that he understood what was going on with racial profiling, correct?

MR. ROVER: The issue did not seem foreign to him.

SENATOR ZANE: Okay. Thank you.

SENATOR GORMLEY: Senator Girgenti?

SENATOR ZANE: Um, I want to --

SENATOR GORMLEY: Oh, I'm sorry.

SENATOR ZANE: I want to talk to --

SENATOR GORMLEY: Oh, I'm sorry.

SENATOR ZANE: Just one second.

Mr. Fahy, you're currently in the Grand Jury section of the Attorney General's Office?

MR. FAHY: Yes, sir.

SENATOR ZANE: Did I understand you earlier in your testimony in answer to the questions to Mr. Chertoff that you made a comment to the Attorney General in regard to some information he was requesting, oh, you found me. Do you recall making that comment?

MR. FAHY: Yes, I don't know if it was those exact words, sir, but when -- just before Legal Affairs broke-up, when Debbie Poritz decided to do away with Legal Affairs, I had been litigating heavily on nights and weekends for seven years. And I strongly requested of Alex Waugh that I be permitted to transfer and an opportunity came up in the Division of Criminal Justice.

Not because profiling wasn't an important issue, but after seven years of litigating it, it's nice to get some -- someone else to carry that load and some new ideas maybe.

So, that was on my request that I be transferred.

SENATOR ZANE: So, the answer is, yes, you made some statement similar to that to the Attorney General himself.

MR. FAHY: I don't know, something -- I can't remember exact words. Something like that, like, oh, back on the issue of racial profiling, I guess he found some people who were working on the issue.

SENATOR ZANE: What did he do, come out to see you wherever you were?

MR. FAHY: No, no. I think it -- the best recollection I have of ever meeting of Peter Verniero was in December of '96. And I think what prompted it was the Justice Department -- I think some information that our office received that there would be a Justice Department inquiry.

SENATOR ZANE: Would I be incorrect if I thought that you were somewhat suspect, especially early on, regarding the analysis done by Sergeant Gilbert? Not that he was fudging, but just -- you lacked confidence in it?

MR. FAHY: I didn't realize that it had gotten to that point where they would have had those kind of detailed numbers coming out. And I also -- if I thought that they were going to be doing analytical studies, I would have preferred that we retain a firm and help them with it.

SENATOR ZANE: Now, is that your way of answering my question yes, I lacked confidence? Is that what you just said?

MR. FAHY: (No verbal response.)

SENATOR ZANE: I mean you gave -- you gave me some other answer about something else. Did you understand my question?

MR. FAHY: (No verbal response.)

SENATOR ZANE: I'm asking you, did you understand it?

MR. FAHY: I think I did. And if I --

SENATOR ZANE: Well, would you answer it then if you did?

MR. FAHY: Please repeat it.

SENATOR ZANE: I said, did you lack confidence in the report or the documentation of Gilbert early on in this matter?

And you just answered that you would have preferred having somebody else, is that your way of saying yes, I lacked confidence in Sergeant Gilbert's documentation?

MR. FAHY: No, sir. But that's presuming I know what the information is. And I don't know what the information is except the general sense that he's looking at numbers.

If I saw documents --

SENATOR ZANE: You didn't ask him either, did you?

MR. FAHY: No, I didn't ask him for the document --

SENATOR ZANE: You didn't want --

MR. FAHY: -- at that time.

SENATOR ZANE: You didn't want to know from him?

MR. FAHY: At that time, sir, I was thinking that in the future, there might be some reports done. But, you know, you have to understand in the cycle that I'm dealing with, in the way I'm litigating it, I'm using experts who are picking 30 random days out of a year. We're not through a cycle yet. I don't know how many days he's looking at. Statistics don't mean anything unless it's covering a sufficient time period, they're relevant. And I'm sorry if -- that's what was conveyed to me by experts that I consulted and through the case law.

Coming up with the appropriate database to judge issues of similarly situated is not only a concept in statistics, but under the law. And I would have preferred to have someone other than Tom Gilbert do it if that's -- if they were seriously going to get involved in doing things like that.

That's the best I can answer. I'm not trying to be difficult, sir.

SENATOR ZANE: But you then set-up a meeting with the Maryland State Police here in New Jersey at the Moorestown barracks, isn't that correct?

MR. FAHY: That happened months before I knew about Tom Gilbert's statistics. And that was --

SENATOR ZANE: Just a second. Let me ask the question. But you took Tom Gilbert with you, didn't you?

MR. FAHY: Yes.

SENATOR ZANE: Well, why would you have taken him? He was a sergeant.

MR. FAHY: I took him because he was the lowest level person, I wasn't going to ask somebody higher up to go.

SENATOR ZANE: And did you -- what, did you take him to drive you there?

MR. FAHY: No, sir.

SENATOR ZANE: Well, why did you take him?

MR. FAHY: Because he was the lowest level person on the Committee. I guess I could have called a Captain or a Major, I just thought that he'd be the one who would come with me.

SENATOR ZANE: Tell me something, why was he on the Committee?

MR. FAHY: I have no idea why he was on the Committee.

SENATOR ZANE: How many meetings did you attend where he was present?

MR. FAHY: Three, months before, in May, June.

SENATOR ZANE: Did he participate in those meetings?

MR. FAHY: I don't recall him saying much. He may have been writing down notes.

SENATOR ZANE: So, you took him because he was the lowest level?

MR. FAHY: Yeah. And Val Littles also said if you need any assistance from the Committee for anything, you can call Tommy. But I didn't -- I didn't know that he'd be doing the studies or -- at that point.

SENATOR ZANE: You did not take him then because of his -- of the studies he had already done?

MR. FAHY: I didn't know he had done studies then.

SENATOR ZANE: When did you find out that he did?

MR. FAHY: Um, much later. Years later. There as -- and I don't know -- his studies, I wasn't really familiar -- when I look at stuff that Paul Zoubek showed me. There was a Sergeant Hinkle who did a study. There was another Gilbert, it wasn't -- there was a Commander Gilbert --

SENATOR ZANE: Lieutenant Gilbert.

MR. FAHY: But I didn't see those in '96.

SENATOR ZANE: You indicated in your testimony earlier that Alex Waugh said to you, and you even spoke about it, to prepare a brief for Verniero, do you recall saying that?

MR. FAHY: (No verbal response.)

SENATOR ZANE: About racial profiling.

MR. FAHY: I did that in December of '96, sir.

SENATOR ZANE: December of 1996. Was it a thorough analysis, in your opinion?

MR. FAHY: Sir, you can judge that. There are many of my memos in the file. I did the best I could.

SENATOR ZANE: I have my opinion. I'm asking yours. Was it a thorough analysis?

MR. FAHY: In my mind -- in my mind, it introduced Peter Verniero to the subject. I wasn't going to give him the whole education on selective enforcement law. I could have given him briefs that we had written on that.

SENATOR ZANE: Did you have an occasion to discuss with him your report?

MR. FAHY: (No verbal response.)

SENATOR ZANE: Him being Peter Verniero.

MR. FAHY: I'm sure I provided him with an oral summary of the litigation history. The fact that there as a Committee that had met. Things like that. But you -- I don't want to be difficult, but I can't remember what exactly was said in a meeting in 1996 five years later, sir.

SENATOR ZANE: Sir, I can remember about two years ago asking the Attorney General Peter Verniero questions and he couldn't remember them either.

In that briefing of Attorney General Verniero, was it only the two of them together when you briefed him from your report?

MR. FAHY: No. The Division of Law Director, Jaynee LaVecchia, now on the Supreme Court, was there. Alex P. Waugh was there. There may have been other people there.

SENATOR ZANE: Did he have any questions when you were finished briefing him?

MR. FAHY: I'm sure he had some questions.

SENATOR ZANE: Did he have any questions of you when you were finished briefing him?

MR. FAHY: Sure -- I'm sure that he asked a question or he commented. He talked at the meeting.

SENATOR ZANE: Did you allow him to ask you and did you answer every question he had?

MR. FAHY: Certainly. I had nothing to hide. He was my boss.

SENATOR ZANE: And did you feel, by the time you were finished, that he had a good understanding of racial profiling as it exists here in this State?

MR. FAHY: He had a history of the issue. How much the man -- I don't know if Mr. Verniero ever practiced criminal law either at that point. Whether a one short hour briefing meeting he can comprehend all of the issues and legal nuances of racial profiling, that's too much for me to have to answer.

SENATOR ZANE: Do you think you --

MR. FAHY: He had the litigation history. SENATOR ZANE: Do you think you need a law degree specializing in criminal law to understand one of your memos?

MR. FAHY: No.

SENATOR ZANE: Isn't that what you --

MR. FAHY: Well, it depends --

SENATOR ZANE: -- just suggested?

MR. FAHY: It depends on the memo. If it's a legal memo, yeah, it would help.

SENATOR ZANE: When did you do that briefing of the Attorney General?

MR. FAHY: Um, it was -- I think Mr. Chertoff said earlier it was December 9th versus December 12th. But somewhere in that time period, December 9th, 12th, 1996.

SENATOR ZANE: And you attended other meetings after that with Attorney General Verniero?

MR. FAHY: Not many.

SENATOR ZANE: But you attended other meeting, correct?

MR. FAHY: Yes.

SENATOR ZANE: Did the invite the Human Resource Division within the Attorney General's Office?

MR. FAHY: There was a Human -- what -- do you mean --

SENATOR ZANE: They have a Human Resource --

MR. FAHY: -- the Department of Personnel?

SENATOR ZANE: -- like Personnel within the Attorney General's Office?

MR. FAHY: Yes.

SENATOR ZANE: Do they have a sensitivity group?

MR. FAHY: Yes, we did a lot of work over the years on providing sensitivity training --

SENATOR ZANE: You never took it, did you?

MR. FAHY: Yes, sir, I did take it.

SENATOR ZANE: Amazing. The meetings you had with the Attorney General, did you, again, review racial profiling?

MR. FAHY: The meetings on the issue of racial profiling, I did discuss issues of racial profiling.

SENATOR ZANE: And did you get -- did you get -- what were those other meetings you're talking about with the Attorney General present?

MR. FAHY: They would have been a meeting in December 24th --

SENATOR ZANE: Of 1996?

MR. FAHY: 1996, in which -- I believe that was a meeting in which Attorney General Verniero called over Colonel Williams and advised him of what had taken place --

SENATOR ZANE: Excuse me one second. That meeting was also after you had briefed him --

MR. FAHY: Yes.

SENATOR ZANE: -- on racial profiling?

MR. FAHY: Yes.

SENATOR ZANE: Was his level of understanding of racial profiling in this State better at that point as a result of your briefing?

MR. FAHY: I can't get into his mind, sir, I --

SENATOR ZANE: Did you have an opinion?

MR. FAHY: No, I didn't have an opinion.

SENATOR ZANE: Do you feel that you were talking to someone who absolutely knew nothing at all about racial profiling?

MR. FAHY: No, I wouldn't say that either. I think -- I don't know what he knew before he got briefed, but he obviously was intelligent enough to hear what I said and I assume comprehend some of it. Ii mean --

SENATOR ZANE: You have indicated that information that you have, and others have testified to the same, is that notwithstanding whatever discussions have taken place, whatever programs have been suggested, that racial profiling today in New Jersey is essentially the same as it was before, is that correct? The statistics, the numbers still the same?

MR. FAHY: No, that's what I read in here. They're about the same in South Jersey.

SENATOR ZANE: Do you have an opinion as to what could be done or what should be done to change that, in light of your experience in dealing with the subject?

MR. FAHY: That's difficult. We thought in the nineties when we had the training that that would help.

We thought the S.O.P.'s would help. And maybe they have.

I think a real study should be done in South Jersey to say why are those numbers still 35 percent.

Consent to searches, I have to say, I never did any study on. Maybe you'd want to look at consent to searches and do a study on that.

And if you had sufficient evidence that a particular trooper was engaged in racial profiling, then I would say absolutely discipline the person.

But that's not so easy, sir, either because -- I also participate in State Police Discipline at times. To bring charges against a trooper because they have a stop rate of 35 percent, I don't -- I don't know what -- I don't think we could sustain that. That's my legal opinion. If you wanted to terminate somebody.

If we had absolute evidence in a report, admissions made by a trooper that they were engaging in racial profiling, absolutely charges should be brought against them. And maybe they should be indicted for official misconduct if that's the evidence.

But that was never -- that kind of detail was never presented to us.

SENATOR ZANE: If consent to search in this State became a thing of the past, what impact do you think it would have on racial profiling?

MR. FAHY: If they -- if State Police were not allowed to use consent to search?

SENATOR ZANE: Nobody was allowed to use it.

MR. FAHY: It may diminish it.

SENATOR ZANE: I have no further questions.

SENATOR GIRGENTI: I know the Chairman had called on me, so I'll just take up -- I have just a few questions that I have. Most of the stuff has been covered already.

But to Mr. Fahy, now you testified that you first discussed the profiling issue with Attorney General Verniero at the meeting regarding the D.O.J. inquiry, was that the first time that you had met with him and discussed it?

MR. FAHY: That's the first I recall. I mean he may have -- he -- he may have seen something in a briefing memo and called earlier. But I have no recollection of it until December of '96.

SENATOR GIRGENTI: And you said at the meeting, the Attorney General wanted to know if New Jersey's the worst state, you used that as -- in regards to racial profiling. Did you respond to that or was that just -- how was that --

MR. FAHY: That was kind of rhetorical on his part. I had no information about that.

SENATOR GIRGENTI: Did anyone else comment on it at the meeting or was that just a --

MR. FAHY: No.

SENATOR GIRGENTI: It was an aside really? It was --

MR. FAHY: It was like a rhetorical statement, like why are we being looked at. That's what I took it as.

SENATOR GIRGENTI: All right. In your deposition, I was looking through it, there was a great deal of -- a portion on training materials that you were involved with in terms of -- over the course of your involvement with the Soto case. You examined State Police training materials. Had you done any work on that in terms of examining them?

MR. FAHY: I think we all did it during the Soto case, sir. So, you can understand, an order was entered on the first day of the Soto case to provide some training materials. And I had to call the Academy at the State Police and we started -- everyone started getting them together, the defense, me, the judge.

SENATOR GIRGENTI: All right. Did any of those materials discuss and outline racial or ethnic profiles of potential violators in the training that was given out? Was that part of --

MR. FAHY: Do you have something to refresh my recollection? That's not ringing a bell right now.



SENATOR GIRGENTI: The deposition that was given -- all right. Mr. Chertoff was asking you, it says, "The purpose of this memorandum is to alert you to the release of some discovery in the case involving State Police, which has the potential for generating adverse publicity."

And then it says, "SDAG Jack Fahy is handling the case as it relates to this issue. There's been a request for diversity training materials which contain derogatory things about minorities, correct?"

MR. FAHY: Oh, I think what you're talking about.

SENATOR GIRGENTI: Okay.

MR. FAHY: During the course of the materials that were sent over, there was a very offensive outline of some training material. It referred to many minority groups, Irish -- all kinds of groups. And I immediately brought that to the attention of Deborah Poritz because I knew I had an obligation to turn it over in discovery.

And we had to review it and check with the State Police whether that was still in use. And the best recollection I have is we were told it hadn't been used for a long time and it was archaic.

SENATOR GIRGENTI: Okay. So, these materials were not -- they were not in use at the point in time when you were having this discussion?

MR. FAHY: As far as --

SENATOR GIRGENTI: Going back --

MR. FAHY: As far as I was led to believe, yes.

SENATOR GIRGENTI: Do you know -- do you have any idea when they ceased using them?

MR. FAHY: Not really. I don't recall now. I may have back then had --

SENATOR GIRGENTI: And were they brought out in the Soto case? Was that part of --

MR. FAHY: No, you know, I always wondered why they didn't use those materials in the Soto case, but they never came up as an exhibit.

SENATOR GIRGENTI: And did you examine the similar materials that were used in other states? Were we similar to other states?

MR. FAHY: I never looked at the materials in other states.

SENATOR GIRGENTI: Okay. And when you were part of the Littles -- the -- when you were part of the Littles Committee, Lieutenant Colonel Littles, you said you made three out of the four meetings?

MR. FAHY: Yeah, I made three of the four meetings. That's --

SENATOR GIRGENTI: Was that ever discussed in there in terms of training materials?

MR. FAHY: That particular document?

SENATOR GIRGENTI: No, any -- in training materials in general with the State Police?

MR. FAHY: Well, I think that's where they talked about -- when we came back after Soto, we wanted to have some positive reaction to the case. We may be in court again some day, and I viewed the Committee very positively.

So, with regard to training, they were saying what else can we do for training. Let's talk about having Ron Susswein, Search and Seizure Committee, and there was some talk about maybe we need better supervisor training to alert them to the issues.

SENATOR GIRGENTI: Has there been changes since that time?

MR. FAHY: Well, I know there was some courses that were --

SENATOR GIRGENTI: Implemented?

MR. FAHY: -- implemented, yes.

SENATOR GIRGENTI: Okay. And then just finally, you were the lead attorney on the Soto case, right? And you were involved in this, I guess, you said like around seven years?

MR. FAHY: Oh --

SENATOR GIRGENTI: Not just the Soto case, in racial profiling?

MR. FAHY: Yeah, from 1989 when the first motion came in and Jane Grall and I received it until the Soto case, I was the lead attorney on the litigation aspects of this issue.

SENATOR GIRGENTI: And why do -- don't you think as a resource that you were -- you would not have more input into this interim report?

MR. FAHY: You're asking the wrong person, sir.

SENATOR GIRGENTI: Were you ever -- were you ever approached?

MR. FAHY: I thought maybe they wanted new blood. Look at the issue a fresh way, I don't know.

SENATOR GIRGENTI: All right. And then just to -- DAG Rover, just one question to you.

Yesterday Detective Gilbert went through his whole process of his communication with you in terms of memos and so forth that was discussed before. Was it standard procedure for you not to take memos, for instance, on certain topics? I remember him saying that he would phone you and he would phone -- tell you the statistics over the phone. Were you supposed to -- do you have that kind of memory that you would memorize them or -- why would you not want that in document form?

MR. ROVER: As I said -- as I testified earlier, I did not ask for those documents. I wasn't asked to ask for those documents. But it was -- it was no policy or procedure.

SENATOR GIRGENTI: Wouldn't that --

MR. ROVER: There as no practices.

SENATOR GIRGENTI: Wouldn't that have made life easier for you to have --

MR. ROVER: Yeah.

SENATOR GIRGENTI: -- memos and documents?

MR. ROVER: Yeah.

SENATOR GIRGENTI: You know --

MR. ROVER: Yes.

SENATOR GIRGENTI: Because obviously at one point, he said he was giving you statistics over the phone and he said he felt that you knew them. But I don't think you could stand here and recite the statistics to us.

MR. ROVER: Yeah --

SENATOR GIRGENTI: So, how could you take that information and transfer it to someone else?

MR. ROVER: I couldn't. And if I had a memo, I could have transferred it.

SENATOR GIRGENTI: So, -- all right. Thank you very much.

SENATOR O'CONNOR: Well, just to follow-up on that, Mr. Rover, did you report to Mr. Waugh the information that had been reported to you by Detective Gilbert?

MR. ROVER: Yes. And --

SENATOR O'CONNOR: Was that something that you reported each and every time that he got to you with additional analysis --

MR. ROVER: What --

SENATOR O'CONNOR: -- and statistics?

MR. ROVER: What I recall him telling me, in particular the early discussions on the Maryland issue, yes.

SENATOR O'CONNOR: Well, what about the continuing reporting that Detective Gilbert made to you? Is that something that you report when you heard it to your immediate supervisor, Mr. Waugh?

MR. ROVER: My testimony has been I do not recall hearing Sergeant Gilbert give me that information. I think Mr. Chertoff asked me the question.

SENATOR O'CONNOR: What was your reaction then when you heard the allegation that the State Police had withheld certain information?

MR. ROVER: I didn't -- I really didn't pick that up. I don't know if it didn't get over to me. I was over on 140 East Front Street. I never really picked up on that whole issue.

SENATOR O'CONNOR: But you're -- I believe your testimony today was that he never withheld any information from you, Detective Gilbert.

MR. ROVER: Well, I assume he didn't. I think the question was would he withhold information. I said I assume that he wouldn't.

SENATOR O'CONNOR: All right. Up on this chart here are various dates that were written down yesterday during the course of testimony. And I believe only two of those dates are dates that the Attorney General was involved a meeting. But we know now that Mr. Fahy briefed the Attorney General on the racial profiling issue on either December 9th or December 12th, 1996.

So, would it be fair to say then there were at least three dates that the Attorney General was involved, either in meeting with either of you individuals or with a larger group?

MR. ROVER: Who are you --

SENATOR O'CONNOR: Mr. Rover.

MR. ROVER: Well, all I can testify to is May 20th personally.

SENATOR O'CONNOR: All right. Mr. Fahy, then you're familiar, since you testified to it, that there was a meeting on December 9th or 12th. And you also participated in the December 24th, 1996 meeting, correct?

MR. FAHY: Yes, sir.

SENATOR O'CONNOR: Now, the May 20th, Mr. Rover, 1997 meeting, that was a large meeting, correct?

MR. FAHY: Yes.

SENATOR O'CONNOR: No, I -- I asked Mr. Rover. But -- okay.

MR. FAHY: The Colonel was there, Detective Gilbert, Alex Waugh, myself, George Rover, yes.

SENATOR O'CONNOR: And these were essentially all the critical players at that time on the racial profiling issue, correct?

MR. FAHY: Pretty much.

SENATOR O'CONNOR: All the critical players both from the Attorney General's Office and the State Police.

MR. FAHY: I would say yes. I mean some members of the Committee could have come, but yeah.

SENATOR O'CONNOR: Okay. Mr. Fahy, you would characterize that as an important meeting, right?

MR. FAHY: Yeah, I -- I viewed it more as a meeting that they were kind of a pitch from the State Police. They didn't want the Attorney General to sign a consent decree. He said he wasn't signing on it.

SENATOR O'CONNOR: Okay. It was an important meeting --

MR. FAHY: Sure.

SENATOR O'CONNOR: -- though, to answer the question?

MR. FAHY: Sure.

SENATOR O'CONNOR: Mr. Rover, you agree with that?

MR. ROVER: I would say any meeting where you have the Attorney General, the Colonel and the Executive Assistant Attorney General, that's --

SENATOR O'CONNOR: And the meeting was -- okay, it was an important meeting you said.

MR. ROVER: Yes.

SENATOR O'CONNOR: The meeting was one that was preceded by the issuance of an agenda?

MR. ROVER: Who's the question to?

SENATOR O'CONNOR: Mr. Rover. I'm sorry.

MR. ROVER: I was hoping you wouldn't pick me.

(Laughter)

MR. ROVER: Yes.

SENATOR O'CONNOR: And, in fact, that was an agenda you had seen beforehand and written some notes on.

MR. ROVER: That's correct.

SENATOR O'CONNOR: And that was a meeting that followed the issuance of your memorandum that went to Mr. Waugh and you believe went to the Attorney General?

MR. FAHY: I have since learned it did go to the Attorney General.

SENATOR O'CONNOR: Would that not be almost like a summit type meeting? I mean that important with all these players there?

MR. ROVER: If you could just define what you mean by summit?

SENATOR O'CONNOR: Well, common parlance. Very important meeting.

MR. ROVER: If you could just select -- if you mean a very important meeting? Is that --

SENATOR O'CONNOR: Okay. Very important meeting.

MR. ROVER: Okay. I'm not trying to quibble, I just want to make sure I understand.

Again, just as a basic principle, when you have a meeting with the Attorney General, the Executive Assistant Attorney General and the Colonel, right off the bat, they don't have too many meetings like that that -- where the issues aren't important. Their time is very valuable.

And I would also think that given the existence of the April 22nd memo and some of the questions posed in there that it was a meeting -- an important meeting.

SENATOR O'CONNOR: I would agree with you. And what amazes me about this whole thing is that both of you have very, very limited recollection of what went on at that meeting. And I would think that a meeting of that importance, of that significance would be something that you would have a pretty clear recollection of what happened.

But having said that, Detective Gilbert and Captain Blaker both testified yesterday that at that meeting, Mr. Rover, you were the one that did most of the talking. Now, I know you disagree with that because I have your deposition and you were asked about that and, again, you said that that was not the case. Is that still your testimony today?

MR. ROVER: Well, I do not have a recollection of being -- of doing a lot of talking. I have testified that I did some talking that I can recall. And if someone said maybe you did a little more talking, I couldn't -- I wouldn't quarrel with that, particularly since I wrote the April memo.

However, counterbalancing that, when you have a meeting with the Executive Assistant, the Colonel and the Attorney General, someone at my level, in many cases, doesn't do a lot of talking.

I know -- that's the best I can do for you.

SENATOR O'CONNOR: Okay. I understand that. But I also understand that the Attorney General was to be briefed on this issue, among other agenda items that were there. So, I wouldn't expect that he would have been doing the talking.

MR. ROVER: Well --

SENATOR O'CONNOR: Is that --

MR. ROVER: I think generally, that might hold true. But there was a memo that laid out some of these issues. So, it wasn't a cold meeting for the Attorney General.

SENATOR O'CONNOR: Okay. But someone at that meeting did pick-up the ball and did brief the Attorney General on the racial profiling issue, correct?

MR. ROVER: Could you be specific when you say racial profiling issue? I -- my testimony -- I'm not -- you know, you have to understand, I want to be precise here. My testimony is -- my recollection is that when I left the meeting, I believe that the issues on the agenda, some more than others, had been covered.

SENATOR O'CONNOR: All right.

MR. ROVER: I don't know if that --

SENATOR O'CONNOR: All right.

MR. ROVER: Because in a lot of cases, I didn't have a specific recollection of a discussion about a particular area.

SENATOR O'CONNOR: Was there any -- any other issue that you addressed at that meeting, other than racial profiling, other than the -- strike that.

Did you, at that meeting, discuss the comparison to -- of the numbers to the Maryland numbers?

MR. ROVER: I don't have any recollection of that, but I -- I will not sit here and say I definitely didn't.

What my testimony was is that when someone testifies that I talked a lot, that doesn't necessarily ring --

SENATOR O'CONNOR: Well, did --

MR. ROVER: According to my recollection.

SENATOR O'CONNOR: Did Detective Gilbert address that issue at that meeting?

MR. ROVER: I think my recollection is is that Sergeant Gilbert started talking about the Maryland case, I think, because he knew the most about it.

SENATOR O'CONNOR: Did anyone else address that issue than Sergeant Gilbert?

MR. ROVER: I don't specifically recall, but I'm sure they did.

SENATOR O'CONNOR: And, Mr. Fahy, you testified earlier today that your recollection of that meeting coincided with Mr. Rover's.

MR. FAHY: Basically, yes.

SENATOR O'CONNOR: Okay. So, is it fair to say then that you two, who are members of the Attorney General's Office, have one recollection of what the meeting was generally versus what the recollection of Detective or Sergeant Gilbert and Captain Blaker was?

MR. FAHY: Not necessarily. And this is why I say that, I viewed the meeting as a meeting in which the State Police were trying to make some type of pitch to the Attorney General. And the Attorney General agreed that he did not want to sign a consent decree.

With regard to consent to search issues, it might have come up, but I don't know what he testified to yesterday, but in looking at Tommy Gilbert's prior deposition, Colonel Williams' prior deposition, the depositions of Alex P. Waugh, George Rover and myself, all of us said that there wasn't much discussion of numbers and figures. And I just don't know that that would be necessarily a disagreement among us.

SENATOR O'CONNOR: Okay. To quote Senator Zane then, quoting another person, do you have any doubt in your mind that as of May the 20th, 1997 the issue of racial profiling had crystalized in the Attorney General's mind?

MR. FAHY: Sir, I don't know what the word crystalized means. I know that he had to certainly be aware of the issue of racial profiling. We went to Washington, for God's sake.

SENATOR O'CONNOR: Okay. All right, you answered the question.

Thank you.

SENATOR GORMLEY: Senator Lynch?

SENATOR LYNCH: Just a couple questions I forgot.

MR. Rover, you were transferred to the Division of Gaming Enforcement in January, 1999?

MR. ROVER: That's correct.

SENATOR LYNCH: Did you ask for that transfer?

MR. ROVER: No.

SENATOR LYNCH: Was it a promotion?

MR. ROVER: Yes.

SENATOR LYNCH: And -- and I'm asking you a question about -- it's not designed to make you look bad in terms of your knowledge of the law because I have a great deal of empathy for the position you were put into to be a buffer and conduit for information flow to the Department of Justice, and at the same time to insulate information to the hierarchy of the Attorney General's Office, as well as the Division of Criminal Justice for potentially discovery issues and others.

But in that regard, as you -- you testified before, you had no background in criminal law or search issues or discrimination law issues.

MR. ROVER: That's correct.

SENATOR LYNCH: And yet here, you're having to deal with some of the terminology and definitions of information that you're looking to -- and categories of information you're looking to retrieve from the State Police to pass along to the Department of Justice, correct?

MR. ROVER: That's correct.

SENATOR LYNCH: And referring specifically to R-20 -- can I have someone provide that to the witness? Which -- we'll deliver you a copy. But it's a memo from you -- a letter from you dated November 5, 1997 to Mark Posner, Esquire, the Civil Rights Division of the U.S. Department of Justice.

MR. ROVER: I may have it here, sir. I do.

SENATOR LYNCH: You're now in this roll --

MR. ROVER: I have R-20. Is that --

SENATOR LYNCH: R-20. November 5, 1997.

MR. ROVER: Yes.

SENATOR LYNCH: You're now in this roll of November 5, 1997 as conduit, buffer, whatever you want to describe it, for some ten months, correct?

MR. ROVER: That's correct.

SENATOR LYNCH: And the purpose of this letter is what?

MR. ROVER: To transfer consent to search documents to the Department of Justice.

SENATOR LYNCH: Okay. And clearly, the second paragraph intends to set forth what you believe a consent to search is, correct?

MR. ROVER: Yes.

SENATOR LYNCH: Now, let me read it to you. "New Jersey consensual motor vehicle searches must be based upon a written consent executed by the motorists before this search of his or her vehicle. Such requests are only obtained after a motorist has been stopped and only if the law enforcement officer thereafter determines that there is probable cause to believe that there may be contraband in the vehicle." Is that correct?

MR. ROVER: That's what it says.

SENATOR LYNCH: That's what it says. And you now know that that's not an accurate definition of a consent search, is it?

MR. ROVER: Yes, you have made me look bad. Yes.

SENATOR LYNCH: But --

MR. ROVER: I know that wasn't your intention, I'm joking.

SENATOR LYNCH: But the point is -- the point is that in November of 1997 in this most significant -- in this significant position that you were put into, you still didn't know the correct definition of a consent search.

MR. ROVER: Yes. And that memo went through two other people also.

SENATOR LYNCH: And who did the memo go through?

MR. ROVER: It was reviewed by Alex Waugh and I believe the Attorney General.

SENATOR LYNCH: And how do you know that?

MR. ROVER: I think there are documents in the file that demonstrate that.

SENATOR LYNCH: This document also -- on the bottom it's noted that it has a State Police file number to it, 107511 and 512. It -- which means to us here that somebody in the State Police had a copy of this document, correct?

MR. ROVER: I accept your representation.

SENATOR LYNCH: But there's no indication of CC's on this document to anyone.

MR. ROVER: No, there isn't.

SENATOR LYNCH: Would you regularly send copies of what you were sending to the Department of Justice, two blind copies to the -- to the State Police or to Waugh, Hespe, Verniero?

MR. ROVER: My only -- my only explanation would be that since this document went through Alex and the Attorney General, in the editing process, for some reason, they were just not CC'd on it.

SENATOR LYNCH: Let me -- let me repeat the question.

MR. ROVER: Okay.

SENATOR LYNCH: Did you regularly or did you ever send blind copies of memos you were sending to the Department of Justice with attachments to the Division of State Police or do the Attorney General or his Assistant?

MR. ROVER: No, I did not use BCC's.

SENATOR LYNCH: But in this case, a copy wound-up at the State Police. Do you know how that happened?

MR. ROVER: No, I don't.

SENATOR LYNCH: And you -- and this document was reviewed by both Verniero and Waugh, to your knowledge?

MR. ROVER: I'm almost certain it was reviewed by both.

SENATOR LYNCH: No further questions.

SENATOR GORMLEY: Go ahead. Senator Robertson?

SENATOR ROBERTSON: Just one last little area for Mr. Fahy.

Senator Zane asked you why didn't you inquire of Sergeant Gilbert and ask him to give you whatever written information that he had. Isn't it a fact that at least at some point and for some period of time you were being instructed by Mr. Waugh not to contact the State Police?

MR. FAHY: No, that's not -- Mr. Waugh never told me not to contact the State Police.

SENATOR ROBERTSON: Okay. Do you remember in December of 1996 receiving an outline of what the Justice Department normally asks for? It's a blank --

MR. FAHY: When we went to Washington in December, they gave us that blank copy.

SENATOR ROBERTSON: Right. Well, Mr. Waugh also sent you a copy of that, right?

MR. FAHY: Afterwards, he followed up and told me to start working on it, and that's probably when we had more intense discussions about I didn't want to get involved in this aspect, it was because I was doing to a new job.

SENATOR ROBERTSON: Okay. Well, I draw your attention to a memorandum from Mr. Waugh to you dated December 20, 1996. It's marked W-4 as an exhibit, OAG-577. I think you've been shown this already today, but it's a two-sentence cover memo to the information request from the Department of Justice. The two sentences from Mr. Waugh to yourself are as follows:

"Attached is a copy of the type of documentation requested by the U.S. Department of Justice in profiling investigations. Without at this point contacting the State Police, please let me know what you have and what you know to be available."

So, I'll ask you again, did Mr. Waugh ever instruct you not to contact the State Police with respect to some of these studies and statistics?

MR. FAHY: Yes, but I think I know why. Because I think he wanted to personally talk to the Colonel, and that was the meeting on December 24th. He didn't want me just sending this memo over to the State Police, getting them all roiled-up without an opportunity for the Colonel to come over and meet with the Attorney General.

SENATOR ROBERTSON: And did he express that to you verbally?

MR. FAHY: No, but that's -- that's my reaction from being around the Department for a long time, that if something could maybe upset a client agency that the Attorney General might want to do this in person. That's the way I'm interpreting this, sir.

SENATOR ROBERTSON: Okay. Now -- but how is it that you could fulfill his request when some of the information being requested by D.O.J. or typically being requested from D.O.J. is information on traffic stops and law enforcement activities pursuant to traffic stops, including analyses, assessment, studies and reports undertaken by the State Police and other State officials from 1990 to the present if, in fact, you haven't, on your own, asked to see what, in fact, is being compiled. And you're being instructed by Mr. Waugh not to ask.

How can you actually fulfill --

MR. FAHY: I --

SENATOR ROBERTSON: -- what you're being asked to do?

MR. FAHY: I probably can't answer everything that's on this list. But from being involved in the litigation and knowing some of the documents that the State Police have, I could maybe give them some initial impressions as to what would be difficult or not difficult to obtain.

SENATOR ROBERTSON: And how, in fact, did you respond to this memorandum?

MR. FAHY: I sent the memo and the file -- I think Mr. Chertoff went over with it -- me with it in my deposition, my response to this.

SENATOR ROBERTSON: All right. You --

MR. FAHY: I did -- I did a --

SENATOR ROBERTSON: -- issued a written response to this.

MR. FAHY: I did a written memo back to Mr. Waugh about my assessment of what would be easy to get, what may take longer to get.

SENATOR ROBERTSON: Were you ever -- other than this particular instance, and especially looking to the period preceding December, '96, were you ever instructed formally or informally or because of whatever motives you might ascribe because of instinct, were you ever instructed not to deal with the State Police or not to request certain information?

MR. FAHY: No.

SENATOR ROBERTSON: Because sometimes that happens in law --

MR. FAHY: No.

SENATOR ROBERTSON: -- when you don't want something in writing, did that happen here?

MR. FAHY: No, in the 22 years I've been there, no one's ever told me -- no one's ever told me to destroy anything, not put something in writing. Never, sir.

SENATOR ROBERTSON: No further questions.

SENATOR FURNARI: Mr. Rover, everybody, I think in this room, and certainly here, understands the difficult positions that you were put in before and unfortunately today, as well.

But just for clarifications, when you were in that position, you still had other functions at the Alcohol Beverage Control, is that right?

MR. ROVER: I had significant duties.

SENATOR FURNARI: Okay. That included all of the normal things --

MR. ROVER: I was --

SENATOR FURNARI: Do you want to just tell us about that?

MR. ROVER: Generally, I was the special assistant to the Director. And I had a director who relied on me quite a bit, and so I was involved in fiscal, admin, assisting on licensing matters. We had a statewide underage drinking initiative that came -- probably came the best in the United States called Cops and Chops (phonetic), and there was a lot to do.

SENATOR FURNARI: So, this other duty was an additional function that was placed on you.

MR. ROVER: Yes, it was.

SENATOR FURNARI: Thank you.

SENATOR GORMLEY: Final question, Mr. Chertoff.

MR. CHERTOFF: I just have a question, Mr. Fahy, in response to your -- in an answer you gave to Senator O'Connor earlier when you were characterizing a meeting on May 20th as it relates to consent, the discussion about consent searches, and I think you said, well, everybody kind of agreed that there as a little discussion about it. And let me tell you what I don't understand, and maybe you can help us with this, in all of my experience dealing with people who are being investigated or companies or whoever, Government agencies, the first thing you do when you get asked for information or an investigation begins, you try to figure out if there's an area that's vulnerable or there's a potential problem.

I mean I can't think of any instance in which I have seen an investigation with people being the first to look themselves to see do we have a problem. Is there something that we have to be sensitive about and be aware about.

I don't know if your experience is any different. You have to agree with me, at this point, as of May, there is a serious and potentially very embarrassing inquiry underway from the Civil Rights Division, you'd agree with that, right?

MR. FAHY: It could be, yes.

MR. CHERTOFF: And --

MR. FAHY: It could be embarrassing if the records don't turn out the right way.

MR. CHERTOFF: Well, embarrassing enough that the Attorney General's first objective in December when this thing surfaced was to try to avoid getting a letter sent that would characterize it as an investigation so that there wouldn't be anything on the record that would make it an investigation as opposed to a review.

So, you knew there was a sensitivity about it, correct?

MR. FAHY: Yes.

MR. CHERTOFF: And it was compounded because going into this thing, there was already a judge, rightly or wrongly, who had found against the State on this issue, correct?

MR. FAHY: I knew that.

MR. CHERTOFF: Now you're coming into a meeting, there's a memo that had been prepared in advance identifying the consent to search issue as a hot issue to be considered, correct?

MR. FAHY: It was on the agenda.

MR. CHERTOFF: And you also saw the memo that Mr. Rover prepared because you got a copy of it, right? And it talked about two issues and one of them was consent to search, right?

MR. FAHY: I'm not recalling that now, it's late in the day. But if you say there's a memo he gave me then yes.

MR. CHERTOFF: It was addressed to you, it was the April 22nd memo which, I think we looked at earlier.

So, you're going into the meeting. This is an issue that's pinpointed on the agenda. It is an issue which there's a memo about. And it has to do with a meeting in which there's a decision -- decisions are being made about how to deal with a potentially and very sensitive and embarrassing inquiry from outside agencies.

Now, the subject of consent to searches come up. I think you agree, and everybody agrees, that at a minimum, someone said in the meeting that our numbers are on a par or in the same ballpark or equal to or about the same as a set of numbers that had led to a very bad result for the State of Maryland, right?

MR. FAHY: Yes, that could have been said, yes.

MR. CHERTOFF: All right. Now, under those circumstances, are you really telling us that nobody asked any questions about it? Nobody -- I mean there's only two possibilities. Either everybody knew about it and, therefore, it didn't need to be discussed. Or people didn't know about it, in which case they would ask questions. Or, I guess, the third is that they were utterly indifferent to a major issue with respect to a significant investigation.

Which one of those three choices -- which one of those three options is the one that you recall being what happened at the meeting?

MR. FAHY: I don't recall, sir. But whatever they were, the numbers were the numbers. And if Justice got them, yeah, maybe we should have done more of a heads up. But the numbers weren't going to change.

If you gave them to Justice and they were bad numbers, we'd have to deal with that issue down the line.

SENATOR GORMLEY: Excuse me. A, B or C or none of the above. Let's try it. Which one of the choices or none of the above?

MR. FAHY: Can you repeat A, B and C?

MR. CHERTOFF: Yeah, A is everybody understands the issue, so you don't need to talk about it very much. They all indicate they know basically what's going on, so it doesn't need to be laid out, that's one.

Option number two is people don't know and they ask questions and it's discussed and everybody's informed.

Or option number three is people say we don't know about it, but we don't really care, so let's move on to something else. Which one of the three is your sense of what happened?

MR. FAHY: I don't think it has to be those three options. I think it can be we don't know about it, but our cooperative effort with Justice is going to show us what the numbers are, too.

MR. CHERTOFF: Well, are you telling us --

MR. FAHY: That's four.

MR. CHERTOFF: -- that the tenor of the meeting was we don't know what's going on so let's enter into a cooperative partnership with the Department of Justice where we're going to just share everything with them and maybe they'll come and tell us whether we have a problem. Was that the tenor of the meeting?

MR. FAHY: Sir, it may seem naive on my part, but in the 21 years there, when an Attorney General tells me that they want to cooperate with the Justice Department as he did in December of '96 and this is maybe only the second meeting I've been with them at, I assume good faith on his part.

MR. CHERTOFF: That's not my question.

MR. FAHY: I thought that's --

MR. CHERTOFF: My question --

MR. FAHY: -- what we were going to do, cooperate.

MR. CHERTOFF: My question is the tenor of the meeting -- was the tenor of the discussion about consent to search documents? We don't know what's going on, let's turn it over to the Federal Government and they'll tell us what -- what the story is? Is that what you're telling us --

MR. FAHY: I can't --

MR. CHERTOFF: -- the tenor of the meeting was?

MR. FAHY: I can't recall the specifics, sir, that way.

MR. CHERTOFF: I mean was -- was there a point to this meeting? Or did you have the sense that you had just been invited in for some kind of aimless rambling about an issue and then going on your merry way?

MR. FAHY: No, I think -- no. I think the point that I thought of the meeting -- the number one point I got from it was that the State Police wanted to make clear that they didn't want a consent to search -- strike that. -- a consent order entered. And that the Attorney General was assuring them that he wasn't going to do that.

Now, further on in the meeting, they may have said something about we have numbers, our consent to search figures --

MR. CHERTOFF: Well, you yourself told -- you told us maybe in the last couple of hours, you yourself agreed that in the meeting the State Police indicated they had concern about the consent to search numbers.

Now, it's a very simple question. Did somebody say what's the concern? What do you mean? What's the problem? Or was the attitude like, well, okay, we don't really care, let's move on to something else?

MR. FAHY: No, I think that if people said the numbers are in the ballpark in Maryland, then that might be a problem some day, sure.

MR. CHERTOFF: So, then what was the follow-up to that? Somebody says that we've got numbers and there might be a problem. What happens? What is the next question or statement that comes up in the meeting?

MR. FAHY: I don't recall, sir.

MR. CHERTOFF: Putting aside specific words, is there any reaction to that along the lines of well, let's find out whether we have a problem?

MR. FAHY: I don't recall, sir.

MR. CHERTOFF: Is there any reaction along the lines of can you come back to us and give us further enlightenment about whether it's a problem or not?

MR. FAHY: I don't recall that being a directive either, sir.

MR. CHERTOFF: Did anybody say, let's -- if we're not sure if the numbers are meaningful, let's go look at the underlying files to find out what the answer is?

MR. FAHY: I don't recall that being said, sir.

MR. CHERTOFF: Has -- so, all you can tell us about the discussion of consent to search was the subject of a memo before the meeting, an agenda item on the meeting and a significant issue with respect to Maryland. All you can tell us is that there was a conversation saying that the numbers in New Jersey and Maryland were in the same ballpark or on a par with each other. And an understanding that in Maryland, those numbers are led to a consent decree, and an understanding that the State Police were worried about a consent decree in New Jersey based on those numbers. And the Attorney General would say well, I'm not going to agree to a consent degree. That's all you can remember about the meeting?

MR. FAHY: Yes.

SENATOR GORMLEY: We're going to take a ten-minute break.

(Recess)

SENATOR GORMLEY: The next witness will be Colonel Carl Williams. Just please stand, Colonel, while I recite the oath to you. Would you raise right hand, please?

COLONEL WILLIAMS: I can't hear you, sir?

SENATOR GORMLEY: We're going to ask you to take the oath at this time. Would you raise your right hand, please.

C A R L W I L L I A M S, SWORN

SENATOR GORMLEY: Mr. Chertoff.

MR. CHERTOFF: Colonel Williams, good morning -- good afternoon. Good evening. Whatever.

(Laughter)

MR. CHERTOFF: How long were you with the State Police?

THE WITNESS: Thirty-five years.

MR. CHERTOFF: And when did you leave?

THE WITNESS: I was terminated in February 28th, 1999.

MR. CHERTOFF: When did you become Superintendent?

THE WITNESS: I became Superintendent in -- Acting Superintendent in March of 1994 and I was sworn in as the Superintendent in June of 1994.

MR. CHERTOFF: Now, you -- you brought representation -- legal representation with you for purposes of the hearing?

THE WITNESS: Uh?

MR. CHERTOFF: Have you brought legal representation with you for purposes of the hearing?

THE WITNESS: Yes, sir.

MR. CHERTOFF: Can you identify through the record who your lawyers are?

THE WITNESS: Okay. They're seated behind me. Mr. Clifford VanSyoc and Mr. George Fisher.

MR. CHERTOFF: Now, let me ask you, at the time that you came on board as Superintendent, were you familiar with what the prevailing policy was with respect to drug interdiction on the Turnpike?

THE WITNESS: Yes, sir.

MR. CHERTOFF: Okay. And did you understand that policy to have a certain emphasis on interdiction versus being mindful of issues of profiling?

THE WITNESS: We were taking part in the DEA Operation PIPELINE, Drug Interdiction Program, yes, sir.

MR. CHERTOFF: Were you familiar with the policies of your prior -- your predecessor, Colonel Dintino, concerning the issue of racial profiling in a way which interdiction was conducted on the Turnpike?

THE WITNESS: I know he had -- he had some concerns about it and he had changed some S.O.P.'s, yes, sir.

MR. CHERTOFF: Okay. And did you familiarize yourself with that during the course of the transition?

THE WITNESS: Well, I knew about it from being in the State Police.

MR. CHERTOFF: Did you make any decision or, to your knowledge, was any decision made by the State Police to make a change in an emphasis on drug interdiction on the Turnpike after you became Superintendent?

THE WITNESS: I wouldn't say there was an emphasis change. I think there was a change in the troopers would be active in the drug enforcement area as requested by the DEA and the Governor, Attorney General, everybody else in the State of New Jersey

MR. CHERTOFF: Was there a change? Do you remember there being a specific decision to change the emphasis in the way drug interdiction was conducted on the Turnpike when you came on board?

THE WITNESS: Not that I recall, no, sir.

MR. CHERTOFF: So, you don't remember any particular point in which a decision was made, we're going to step-up drug interdiction or we're going to step-up our focus on stops of individual automobiles?

THE WITNESS: There was no directive to go out. The only directive that went out was that the troopers were to do their job and when they saw a violation and a criminal violation, they were to take whatever action was necessary.

MR. CHERTOFF: Now, in March of 1996, did you become aware of a decision by a Judge Frances in a case called Soto?

THE WITNESS: Yes, sir.

MR. CHERTOFF: And you understood that decision was a finding at least, a preliminary finding that there was a basis to go forward on claims of selective enforcement in stops at the southern end of the Turnpike?

THE WITNESS: Yes, sir.

MR. CHERTOFF: What was your reaction to that?

THE WITNESS: Well, after consultation with the -- my staff and the Attorney General's Office, we determined that there was some disagreement with Judge Frances' decision. And we were going to look into appealing it.

MR. CHERTOFF: Now, did you also take steps to form a Committee to deal with the aftermath of that decision?

THE WITNESS: Yes, I did, sir.

MR. CHERTOFF: And that was chaired by Lieutenant Colonel Littles?

THE WITNESS: Lieutenant Colonel Val Littles, yes.

MR. CHERTOFF: And it also included, among other people, Sergeant Gilbert, Captain Brennan, Captain Touw and representatives from the Office of the Attorney General?

THE WITNESS: That's correct, sir.

MR. CHERTOFF: What was the purpose of the Committee?

THE WITNESS: To look into the policies and procedures that the State Police was operating under at that time with regards to the traffic stops.

MR. CHERTOFF: And what was the reason you wanted to have that looked into?

THE WITNESS: Well, we wanted to get the statistics or feel for, you know, what was going on out there and what was the -- you know, the ramifications from Judge Frances' ruling.

MR. CHERTOFF: Were you made aware -- did you receive reports about the activities of the Committee that were generated by Sergeant Gilbert and went up the chain of command?

THE WITNESS: Yes, sir.

MR. CHERTOFF: And did those reports make it clear to you that there was going to be, within the State Police, the effort to look at some of the statistics in terms of issues such as stops?

THE WITNESS: Yes, sir.

MR. CHERTOFF: I'm going to show you a few documents, I'm going to try to move this quickly. There's a document called CW-6, which is by the Superintendent's Action memo 5/24/96. And it's got GC-3983, I'm going to give that to you. Do you remember this document?

THE WITNESS: Yes, sir.

MR. CHERTOFF: Okay. Now, underneath the top page, there's a report to you from Detective Gilbert regarding the May 16th Committee meeting --

THE WITNESS: Yes, sir.

MR. CHERTOFF: -- correct?

THE WITNESS: Yes, sir.

MR. CHERTOFF: And at the end of the report on Page 3, it indicates that the records and identification section as prepared in analysis of arrest statistics from troopers who are -- whose cases are subject to the Gloucester County. And also a preliminary analysis of enforcement activity for Perryville for a year period from October, '94 to October, '95. Do you remember seeing that?

THE WITNESS: Where -- are you on Page 2?

MR. CHERTOFF: The last page.

THE WITNESS: Yes.

MR. CHERTOFF: The very last paragraph of the whole document, do you remember seeing that?

THE WITNESS: Yes, sir.

MR. CHERTOFF: Now, there were a series of recommendations made by the Committee regarding reconfiguration of patrol charts, retaining patrol charts and retaining radio logs, correct?

THE WITNESS: Yes, sir.

MR. CHERTOFF: And did you, on this top page, indicate your approval of that -- those changes and send it back down to Lieutenant Colonel Littles?

THE WITNESS: Yes, sir, I did.

MR. CHERTOFF: And was this your customary manner of approving recommendations?

THE WITNESS: Correct, sir.

MR. CHERTOFF: Why did you agree with these changes? Why did you approve these?

THE WITNESS: I --

MR. CHERTOFF: Why did you approve these recommendations?

THE WITNESS: Because I thought they were good recommendations.

MR. CHERTOFF: What was your objective?

THE WITNESS: To look into the operation of the organization and the activities of the trooper on patrol.

MR. CHERTOFF: Now, was there -- did you assign a particular person in the State Police to be in contact with the Office of the Attorney General with respect to this issue of racial profiling?

THE WITNESS: Well, at the time, I think I was assigned either -- then was Lieutenant, I think Lieutenant or Dave Blaker, who was a Sergeant. And they chose Detective, at that time, Tom Gilbert to act as the representative or the go-between, whatever word you want to use, between the Division of State Police and the Office of the Attorney General.

MR. CHERTOFF: And that was with respect to the Soto case, which was then underway, right?

THE WITNESS: Yes.

MR. CHERTOFF: The appeal was underway.

THE WITNESS: The Soto case.

MR. CHERTOFF: Yeah, Soto case. Now, let me go to another document, CW-8, which is a document dated 10/4/96, memorandum to Major Fedorko regarding patrol issues concerns in Moorestown.

THE WITNESS: Yes, sir.

MR. CHERTOFF: Again, do you remember seeing this --

THE WITNESS: Yes, sir.

MR. CHERTOFF: -- document?

THE WITNESS: Yes, sir.

MR. CHERTOFF: And this document indicates, again, that there were audits of Perryville, Washington and Moorestown to do up a racial monitoring program for motor vehicle stops.

THE WITNESS: Yes, sir.

MR. CHERTOFF: Did you agree with the fact that that program was put into place?

THE WITNESS: Yes, sir.

MR. CHERTOFF: Now, I'm just going to -- give me a moment, I want to find an attachment to this.

(Pause)

MR. CHERTOFF: I'm going to come back to that, let's move along. Did there come a point in time in late 1996 you learned that the Department of Justice was going to begin a review of racial profiling issues in New Jersey?

THE WITNESS: I became aware that the Department of Justice was going to start a review within the State Police, yes, sir.

MR. CHERTOFF: And how did you learn about that?

THE WITNESS: I think I was made aware through the Attorney General's Office, if I remember correctly.

MR. CHERTOFF: Did there come a time you attended a meeting early December?

THE WITNESS: Yes, sir.

MR. CHERTOFF: And who attended -- who was at the meeting?

THE WITNESS: Is this the December 24th meeting?

MR. CHERTOFF: December 9th.

THE WITNESS: December 9th?

MR. CHERTOFF: This was before there was a trip down to meet with the Department of Justice. Did you attend a meeting on December 9th?

THE WITNESS: Yes, sir. To the best of my recollection I think it was the Attorney General, myself, Alex Waugh -- I don't know -- I think Jack Fahy might have been there. I don't know -- I don't know if I took Colonel Littles from the Division or not, you know, exactly who I took from the Division Headquarters with me.

MR. CHERTOFF: What was the purpose of the meeting?

THE WITNESS: It's my understanding, I think that the Attorney General is advising me about the Justice Department and what they were about to do with regards to starting this review/inquiry into the State Police.

MR. CHERTOFF: What was your reaction to that?

THE WITNESS: Oh, I wasn't -- you know, I wasn't upset, nor was I too happy about it either. I was wondering what they were out looking for.

I -- but I made it known that, you know, whatever they wanted, we'd cooperate with whatever request the Attorney General and/or the Justice Department would ask us.

MR. CHERTOFF: Now, did you -- were you made aware in that meeting that there was going to be a trip down to the Department of Justice by the Attorney General?

THE WITNESS: Yes, sir, I was.

MR. CHERTOFF: And did you actually go on that trip?

THE WITNESS: No, sir, I did not.

MR. CHERTOFF: Okay. At the end of the meeting on December 9th, were you left with anything in particular to do?

THE WITNESS: I can't remember specifically, sir, whether I was instructed to start gathering reports or what, you know, what I was told to do. I can't remember specifically, sir, no.

MR. CHERTOFF: Now, as of this point in time, as we have seen through the documents we looked at a few moments ago, you were aware that components within the State Police were beginning the process of accumulating information about stops at Moorestown and at Perryville, right?

THE WITNESS: Yes, sir.

MR. CHERTOFF: Did you, in the wake of that meeting on December 9th, ask for any information or ask to have that collected in connection with having to turn it over to the Department of Justice?

THE WITNESS: Well, I told him, you know, that we would cooperate and do anything they -- you know, whatever they wanted. You know, you tell us, so to speak, what you want and we'll provide the reports for you.

MR. CHERTOFF: Did there come a time you were told about the results of the meeting in Washington?

THE WITNESS: The Attorney General had in Washington?

MR. CHERTOFF: Yes, sir. And how did that come about?

THE WITNESS: I think that was at a subsequent meeting. Maybe that was the meeting on the 24th of December where I think at that time I was given a -- like a direction as to what -- what was expected of the State Police to provide initially for the Justice Department.

MR. CHERTOFF: And you went to that meeting with Detective Gilbert, Thomas Gilbert?

THE WITNESS: Yes, sir.

MR. CHERTOFF: Why did you bring him along?

THE WITNESS: As I said, he was the person who was, you know, -- we as a -- as a staff felt was the most qualified person to represent the State Police to gather this information. You know, to disburse it. And, you know, that the job would be done right and done. That I could trust him.

MR. CHERTOFF: You know, I'm going to just jump back a little bit. There's a -- I want to show you an Exhibit G-7B, which is a memo to you dated October 11, 1996 from Detective Gilbert, Search and Seizures Meeting of October 4th, 1996.

If you turn to the page on the bottom marked OAG 4233, you see a copy of that memo we talked about a moment ago to Major Fedorko in October, '96 regarding recommendations to the patrol issues, concerns at Moorestown Station?

THE WITNESS: Yes, sir.

MR. CHERTOFF: Now, you remember what this issue in Moorestown was, right?

THE WITNESS: Yes, sir.

MR. CHERTOFF: And there were complaints by certain troopers that they believed there was profiling going on.

THE WITNESS: That is correct, sir.

MR. CHERTOFF: And I take it that would be a fairly serious issue in the -- in light of the fact that there was already a case underway in the courts relating to Moorestown Station.

THE WITNESS: That is correct, sir.

MR. CHERTOFF: So, is it fair to say that you were concerned about it?

THE WITNESS: Yes, sir.

MR. CHERTOFF: And was it your understanding that this set of issues about complaints in Moorestown was one of the topics discussed at these Committee meetings that were chaired by Lieutenant Colonel Littles?

COLONEL WILLIAMS: It was brought to my attention, yes, sir.

MR. CHERTOFF: Now on this document here we've got in front of us, OAG-4233, there are various suggestions that are made.

COLONEL WILLIAMS: Yes, sir.

MR. CHERTOFF: And there's handwriting. Is that your handwriting?

COLONEL WILLIAMS: It's my printing, yes, sir.

MR. CHERTOFF: All right. And was this your reaction to those suggestions?

COLONEL WILLIAMS: It was my reaction to the suggestion about the periodic evaluation reports that the troopers' racial tabulation should be put on there and I said no.

MR. CHERTOFF: Why did you say no to that?

COLONEL WILLIAMS: I didn't think that that was an appropriate place for it. The evaluation report is a -- is a twice a year report on the -- I guess you could call it what the trooper does in the organization, his evaluation. It's personnel issue. It stays in their personnel file from the first one that's done on you in the Division until the day you get out of the organization. I also thought that there might be a problem with the bargaining units with regards to a substance change in the evaluation report, that we'd have to -- we'd have a problem there. And thirdly I thought that it was a responsibility of the station commander who's responsible for these troopers at that station that he should be -- he or she should be the person that's aware of what's going on at the station and make that evaluation, not on an evaluation report. Those are the three reasons why I -- I said no.

MR. CHERTOFF: Okay. Now on the next page there's some other recommendations that r made. One was to include in the trooper criminal investigation officer's inspection a review of three to five investigations to insure investigations were conducted properly.

COLONEL WILLIAMS: Yes, sir.

MR. CHERTOFF: What was -- what was your reaction to that?

COLONEL WILLIAMS: I wanted the -- I wanted the criminal investigation officer, in other words they're the Lieutenant in charge at each troop that's basically responsible for the entire Criminal Investigation Section in a particular trooper, and I wanted them to be aware of what was going on at the various stations. I wanted them to check the reports to make sure that they were -- they were complete, what the -- you know, what the circumstances were leading up to the arrest, how the arrest was made, what contraband was confiscated, if any, you know, what type of arrest it was, so that they would be -- take more of an active part in the running of the Criminal Investigation Section within -- within each one of the troops.

MR. CHERTOFF: Was there also a recommendation to have review of all warrantless arrests by the -- at the station level in the trooper bureau level?

COLONEL WILLIAMS: That is correct. Again, I wanted the station commander and assistant station commander and the criminal investigation officers in the troops to become more aware and active and know what's going on in their troops and to oversee to make sure everything was running according to the SOPs.

MR. CHERTOFF: Now were these recommendations you had to run by the Office of the Attorney General or did you have the authority to put these into effect yourself?

COLONEL WILLIAMS: I think I put these out on my own, sir.

MR. CHERTOFF: Okay. Let's get back to December 24th. You go to these meeting on Christmas Eve with Sergeant Gilbert and what is the -- what does the Attorney General tell you happened in Washington a couple weeks earlier?

COLONEL WILLIAMS: Well, to the best of my recollection and this can't be verbatim, but it was a meeting in Washington with the Attorney General and I don't know, it was upper echelon of the Department of Justice and they had made certain requests of what I'll call the State of New Jersey State Police. And the -- to the best of my recollection, the Attorney General came back and informed me as to what transpired at this time, what was expected of the State Police and, you know, what we were going to do, what my marching orders were.

MR. CHERTOFF: What if anything did the Attorney General or anybody else say to you at the meeting about whether they had been able to avoid having a letter, an actual letter sent or formal investigation?

COLONEL WILLIAMS: It was my understanding at that time that as a result of the meeting with the Attorney General and the individuals in Washington, D.C. at Justice, that that had been back burnered, for the want of a better word, at this time and that they would try to work together and work something out, you know, a cooperative type exchange of information as time went on.

MR. CHERTOFF: Now after the first of the year, in January, on January 10th, 1997, did you have a further conversation with the Attorney General and with Assistant Attorney General Waugh regarding the data that was requested by the Justice Department?

COLONEL WILLIAMS: That was January 10th.

MR. CHERTOFF: '97?

COLONEL WILLIAMS: Yes, sir.

MR. CHERTOFF: Okay. And to help you out, I'm going to show you G-12, 0AG-6164. It's a memo 1/9/97 from Sergeant Gilbert to you with a handwritten notation signed by you. Do you recognize this?

COLONEL WILLIAMS: Yes, sir.

MR. CHERTOFF: Now how did you come to have this meeting with the Attorney General or this conversation with the Attorney General?

COLONEL WILLIAMS: I -- again, it's an assumption on my part, I -- most likely it was either a phone call made from the Attorney General's Office telling me to -- you know, to come down to his office and/or a phone call to my secretary from his secretary saying the Attorney General wants you down in his office, you know, on this date, such and such a time.

MR. CHERTOFF: And it says here that at this time same will be restricted to the Turnpike stations of Cranbury and Moorestown. What was the discussion you had with the Attorney General at this meeting?

COLONEL WILLIAMS: It was -- to the best of my recollection, the Justice Department had -- had agreed to -- to narrow the scope of the request for documents from the State Police instead of a Division -- instead of a Division wide document request, that it would be zeroed in to those two stations on the -- on the Turnpike.

MR. CHERTOFF: What was the significance of that?

COLONEL WILLIAMS: Well the significance of it was that it was a -- you know, it would have been a monumental task as far as just gathering records for the entire of State of New Jersey for all the troops out there, the various troop stations and, you know, it was a less of a burden on the -- on everybody involved.

MR. CHERTOFF: Now in this period of time after January of 1997, did you become aware that Sergeant Gilbert had done an analysis, first of all, of the arrests by the troopers who were the subject of the Soto case, and secondly, the consent to search statistics in New Jersey as they compared to consent to search statistics for the Maryland State Police?

COLONEL WILLIAMS: Yes, sir.

MR. CHERTOFF: How did you -- do you know how he came to undertake that analysis?

COLONEL WILLIAMS: How did I become aware of it?

MR. CHERTOFF: Well how did -- do you know how he came to start -- to conduct that analysis, why he started to conduct it?

COLONEL WILLIAMS: He was -- he was ordered to do it.

MR. CHERTOFF: By who?

COLONEL WILLIAMS: I think it was either myself or, you know, maybe Lieutenant Colonel Littles or somebody like that. But it was an order from, you know, like I say, either myself or one of the other staff officers.

MR. CHERTOFF: Well what was he ordered to do?

COLONEL WILLIAMS: Was to compile the statistics at the -- at the stations to find out, you know, what's going on out there.

MR. CHERTOFF: And why was that important to you at this point?

COLONEL WILLIAMS: Well again, I needed to know, you know, what was happening out in the -- out in the field with regards to what was being requested by the Attorney General and the Department of Justice.

MR. CHERTOFF: Now let me show you G-13, an undated memo to you from Sergeant Gilbert re Justice Department inquiry. It's OAG-6225. I bet you recognize this?

COLONEL WILLIAMS: Yes, sir, I do.

MR. CHERTOFF: Did you get this?

COLONEL WILLIAMS: Yes, sir, I did.

MR. CHERTOFF: Approximately in February of 1997?

COLONEL WILLIAMS: I won't argue with. I -- there's no date on there, sir, so I would -- I would assume so. But again I can't say yes, I can't say no.

MR. CHERTOFF: Did you read it when you got it?

COLONEL WILLIAMS: Yes, sir.

MR. CHERTOFF: Did you understand it was significant?

COLONEL WILLIAMS: Yes, sir, I did.

MR. CHERTOFF: Now were you aware at this point in time that there was a consent degree involving the Maryland State Police?

COLONEL WILLIAMS: Yes, sir, I was.

MR. CHERTOFF: How did you become aware of that, do you remember?

COLONEL WILLIAMS: Well it was common knowledge with regards to the -- we have an International Association of Chiefs of Police and also a part of that -- that organization is the State and Provincial wing of the IACP. And we would have -- not only were there meetings with the full body of the IACP, but there was also -- we would usually have one or two what we call a national meeting a year and then we would also have the -- or the United States was broken up into four districts and what we consider the northeast would encompass West Virginia north to Pennsylvania east. We would also have regional -- what we call regional meetings and that was one of the subjects of conversation at the -- at one of those meetings, well it's actually several of those meetings what had transpired in Maryland.

MR. CHERTOFF: Did you regard the possibility of the consent decree as a serious concern?

COLONEL WILLIAMS: It was -- it was a serious concern, yes, sir.

MR. CHERTOFF: And when you read this memo, let me take you through it. I mean did you see that the consent to search -- you understood what consent to search figures were as distinct from stop figures, right?

COLONEL WILLIAMS: Yes, sir.

MR. CHERTOFF: Did you understand the consent to search figures for New Jersey as being comparable to if not slightly worse than those in Maryland that had led to the consent decree in Maryland?

COLONEL WILLIAMS: From the statistics I had received with regards to the State of Maryland and what I received here, they were approximately the same or like you say, a little better.

MR. CHERTOFF: Did you also understand that from the analysis that Sergeant Gilbert had done with respect to the troopers in Moorestown and Cranbury, that the statistics with respect to arrests -- I'm sorry, searches there were also very high as compared to or at least on a par with those generated in Maryland?

COLONEL WILLIAMS: Yes, sir.

MR. CHERTOFF: Did you understand what the significance of that was?

COLONEL WILLIAMS: I understood that they were significant, yes, sir.

MR. CHERTOFF: Now he says on page three, "At this point we are in a very bad spot. Through the Gloucester case, the Illinois State Police investigation and the Maryland State Police study settlement, the Justice Department has a very good understanding of how we operate and what types of numbers they can get their hands to prove their position." Did you agree with that statement?

COLONEL WILLIAMS: Yes, sir.

MR. CHERTOFF: Now there are a series of suggestions that are made at the bottom where Sergeant Gilbert says, "Please consider the following. We could attempt to forestall being forced into an agreement if we proactively set up a database on our search activity and then reformulate and declare a policy against racial profiling and keep the data." Did you agree with that suggestion?

COLONEL WILLIAMS: Yes, sir.

MR. CHERTOFF: Did you mandate that that be done?

COLONEL WILLIAMS: To the best of my recollection, I did.

MR. CHERTOFF: And how did you make that mandate?

COLONEL WILLIAMS: I think it was either announced at a staff meeting or through the chain of command down from the Lieutenant Colonels down to Field Operations Section.

MR. CHERTOFF: In the next paragraph he says, "We should computerize the data." Did you agree with that?

COLONEL WILLIAMS: Yes, sir, I did.

MR. CHERTOFF: Did you order that to be done?

COLONEL WILLIAMS: Well to the best of our ability because of budget constraints, et cetera, et cetera, we were -- the New Jersey State Police was in the dark ages at that time as far as computerization is concerned.

MR. CHERTOFF: Did you make any efforts to get that moving?

COLONEL WILLIAMS: I made an effort to get it moving, yes, sir.

MR. CHERTOFF: Did that eventually get implemented, some kind of computerized --

COLONEL WILLIAMS: Eventually it got -- it got moving with what, I think, ultimately ended up as the CAD system.

MR. CHERTOFF: That's computer assisted dispatch?

COLONEL WILLIAMS: Computer assisted dispatch.

MR. CHERTOFF: It goes on further in five it says, "We should distribute the Maryland State Police study and settlement agreement in conjunction with the next IAB bulletin." Was that done do you know?

COLONEL WILLIAMS: To the best of my recollection, I think there was a bulletin that did go out incorporating that and to make all the road troopers aware of what had taken place in Maryland.

MR. CHERTOFF: Now at this point in time in '97, who was Sergeant Gilbert's contact at the Office of the Attorney General as it related to this Department of Justice inquiry?

COLONEL WILLIAMS: Deputy Attorney General George Rover.

MR. CHERTOFF: And did you give Sergeant Gilbert any direction with respect to this research he had done on consents to search after you received it and reviewed it?

COLONEL WILLIAMS: Other than he was to share the information with the Attorney General's Office.

MR. CHERTOFF: Did you specifically tell him you should share this with -- with Deputy Attorney General Rover?

COLONEL WILLIAMS: Did I say to him, you share this with DAG Rover? I don't think so. But did I say it -- did I tell him to share it with the Attorney General's Office, yes, sir.

MR. CHERTOFF: And did you give him that direction in clear and certain terms?

COLONEL WILLIAMS: Detective Gilbert being a trooper, he understood exactly what I was saying, sir.

MR. CHERTOFF: Did you have a standing -- in fact a standing instruction to share any significant or material information with the Office of the Attorney General?

COLONEL WILLIAMS: Yes, sir.

MR. CHERTOFF: Now was it your understanding that he did that?

COLONEL WILLIAMS: It's my understanding that he did it, sir, yes, sir.

MR. CHERTOFF: Were you ever -- did you ever receive any information to the contrary?

COLONEL WILLIAMS: No, sir.

MR. CHERTOFF: Before 1999?

COLONEL WILLIAMS: Before 1999, no, sir.

MR. CHERTOFF: Now let me ask you, did there come a point in time -- I'm going to show you CW-11 which is a memo to you from Captain Roberson, March 27, 1997, GC-2094.

COLONEL WILLIAMS: Yes, sir.

MR. CHERTOFF: Do you recognize this document?

COLONEL WILLIAMS: Yes, I do, sir.

MR. CHERTOFF: What does this relate to?

COLONEL WILLIAMS: At that time Captain Roberson, who was the Trooper Commander of Troop D expressed a concern that we were discriminating against the two stations that we were gathering the information from, Cranbury and Moorestown, and he didn't think it was -- he didn't think, first of all, that we would get statistics that were adequate and secondly, you know, for the want of a better word, I guess he felt that we were being discriminating towards his Troop, especially those two -- two road stations.

MR. CHERTOFF: Did this have to do with the gathering of information in connection with this Department of Justice examination?

COLONEL WILLIAMS: Yes, sir.

MR. CHERTOFF: And there's an undated memo from Sergeant Gilbert to you a couple pages into that that talks about this issue, correct?

COLONEL WILLIAMS: Yes, sir.

MR. CHERTOFF: And in this memo did Sergeant Gilbert indicate that one of the reasons it would be a good idea to limit the collection of material to these two stations was that if you started to look at other stations, there was no upside because basically either the numbers would be as bad as the ones in Moorestown and Cranbury and they'd be better which would make Moorestown and Cranbury look worse?

COLONEL WILLIAMS: He goes over that in here, yes, sir.

MR. CHERTOFF: And did you agree with that?

COLONEL WILLIAMS: Well I guess I did because I came out and said that we were going to collect the data from Cranbury and Moorestown and that was the way it was going to be.

MR. CHERTOFF: Now did there come a time in May that you had a meeting at the Attorney General's Office concerning the issue of consent to search data?

COLONEL WILLIAMS: May of?

MR. CHERTOFF: May of 1997.

COLONEL WILLIAMS: Yes, sir.

MR. CHERTOFF: Did you get an agenda beforehand indicating that one of the subjects was going to be the Maryland consent to search data?

COLONEL WILLIAMS: Yes, sir, I did.

MR. CHERTOFF: As you went -- before you went to the meeting, you understood the significance of that data, right?

COLONEL WILLIAMS: Yes, sir.

MR. CHERTOFF: You understood that the data -- the statistics for New Jersey were on a par with those in Maryland?

COLONEL WILLIAMS: Yes, sir.

MR. CHERTOFF: You understood that in Maryland those statistics had led to a consent decree?

COLONEL WILLIAMS: That is correct, sir.

MR. CHERTOFF: You did not want a consent decree in New Jersey?

COLONEL WILLIAMS: No, sir.

MR. CHERTOFF: In going to the meeting, was one of your purposes to discuss with the Attorney General his view about the consent to search data and his view about entering into a consent decree?

COLONEL WILLIAMS: To the best of my recollection it was a part of the agenda and that was -- it was going to be discussed, yes, sir.

MR. CHERTOFF: Had you ever discussed this issue with anybody from the Office of the Attorney General before May 20th personally?

COLONEL WILLIAMS: Well I discussed it with -- to the best of my recollection, with George Rover, with Jack Fahy, not that specific memo but, you know, the overall issue of the Maryland situation and the -- and the consent decree.

MR. CHERTOFF: Would that have been a discussion in March of 1997?

COLONEL WILLIAMS: Possible.

MR. CHERTOFF: Did you have a meeting with Mr. Rover and Mr. Fahy in March of 1997?

COLONEL WILLIAMS: Yes, sir, I did.

MR. CHERTOFF: And was the subject of that meeting the consent to search issue and the Maryland -- effect of the Maryland or a comparison to a numbers?

COLONEL WILLIAMS: I did. To the best of my recollection it was -- you know, there could have been other things discussed, but I think that was also discussed.

MR. CHERTOFF: What was the general nature of the discussion you had in March with Mr. Rover and Mr. Fahy about the Maryland numbers and the New Jersey numbers on consent to search?

COLONEL WILLIAMS: Well again that they were, you know, comparable, but that again if we could avoid any type of consent decree here in New Jersey it would be the benefit of the State Police. You know, maybe there's more behind it that we could look into as far as statistic gathering, et cetera, et cetera, the whys, the wherefore, how come.

MR. CHERTOFF: Did they say anything in the meeting?

COLONEL WILLIAMS: To the best of my recollection, every -- you know, everything was affable and agreeable. You know, nobody said well we're not going to do that or we're not going to, you know, go with your suggestions.

MR. CHERTOFF: Did you have -- did you have a doubt in your mind that they understood the significance of the consent to search information, that it was a significant issue for the State Police?

COLONEL WILLIAMS: No, sir.

MR. CHERTOFF: I'm sorry, maybe the question was a little poorly framed. When you no, sir, am I correct that they indicated in the meeting that they understood that the consent to search issue was significant for the State Police?

COLONEL WILLIAMS: I don't know if they specifically used words to that effect, but they seemed to be agreeable that it was a significant issue to the State Police, yes, sir.

MR. CHERTOFF: Now were you -- did you ever in this meeting raise the possibility of trying to either limit the consent to search data being turned over or at least to try to minimize the way that information would be used by the Justice Department?

COLONEL WILLIAMS: No, sir.

MR. CHERTOFF: Let's go to the May 20th meeting. How did you come to go to that meeting? How -- were you invited or did you ask for it?

COLONEL WILLIAMS: To the best of my recollection, it was a -- I was invited to the meeting. I was -- again, it was either a contact from the Attorney General's Office most likely to my secretary scheduled on the -- you know, such and such a date, such and such a time, which happened to be May 20th and then they -- subsequent to that I received a copy of the agenda that would be discussed at that -- at that particular time.

MR. CHERTOFF: Who did you attend with?

COLONEL WILLIAMS: From Division Headquarters?

MR. CHERTOFF: Yeah.

COLONEL WILLIAMS: I took I think then Lieutenant Blaker and Sergeant Gilbert.

MR. CHERTOFF: Why did you take them?

COLONEL WILLIAMS: Well I took Sergeant Gilbert because he was the -- he was the most knowledgeable person in the -- in the Division with regards to some of the issues that were laid out on the agenda that we were going to be discussing at the meeting with the Attorney General. I took Captain Blaker because he was his supervisor and he was also somewhat knowledgeable of the issues that were going to be discussed according to the agenda that I had received.

MR. CHERTOFF: Where did the meeting take place?

COLONEL WILLIAMS: To the best of my recollection, it was in the -- in the Attorney General's Office. He had a -- in his office, it was a rather large office, and he had a conference table in there that would seat about maybe eight or 10 people, and to the best of my recollection we all sat around the table in his office.

MR. CHERTOFF: Now the Attorney General was there with Mr. Waugh?

COLONEL WILLIAMS: Yes, sir.

MR. CHERTOFF: Was Mr. Fahy there?

COLONEL WILLIAMS: Yes, sir.

MR. CHERTOFF: Was Mr. Rover there?

COLONEL WILLIAMS: Yes, sir.

MR. CHERTOFF: And then you and Captain Blaker and Sergeant Gilbert?

COLONEL WILLIAMS: Yes, sir.

MR. CHERTOFF: Who did most of the talking?

COLONEL WILLIAMS: I would say it was generally split up. You know, everybody did some talking. Who did most of the talking? You know, it was the Attorney General's meaning, I mean, so he -- he more or less started it and set the tone I would say and then as questions were asked or comments were made, different people would chime in with thoughts, opinions, ideas.

MR. CHERTOFF: Now at some point the conversation gets around to the issue of the Maryland consent decree and the numbers as they compared to New Jersey, correct?

COLONEL WILLIAMS: That is correct, sir.

MR. CHERTOFF: And who presented the facts or presented the kind of circumstances on that topic?

COLONEL WILLIAMS: To the best of my recollection, I think it was Sergeant Gilbert and possibly assisted by DAG Rover.

MR. CHERTOFF: And what was said about the Maryland numbers and Maryland consent decree and the New Jersey numbers?

COLONEL WILLIAMS: Well, again, you know, it was a very similar situation, comparable and, you know, it was -- it could be a linchpin for the Justice Department to start movement on a consent decree against the New Jersey State Police.

MR. CHERTOFF: Did you or anyone from the State Police express concern about those numbers on consent to searches because you were afraid it could lead to a consent decree?

COLONEL WILLIAMS: Well I didn't want to -- I didn't want a consent decree, yes, sir.

MR. CHERTOFF: Did you express concern that the numbers, the consent to search numbers in New Jersey were such that because of the comparison to Maryland you were concerned it might lead to a consent decree?

COLONEL WILLIAMS: Yes, sir.

MR. CHERTOFF: And did you make that concern known at the meeting?

COLONEL WILLIAMS: Yes, sir.

MR. CHERTOFF: What was the response to that by others at the meeting?

COLONEL WILLIAMS: Well it was my -- when I left the meeting, the others had said that, you know, we'll do everything we can to avoid that happening with the New Jersey State Police.

MR. CHERTOFF: Now I want to just get more specifically into this. Did Sergeant Gilbert actually -- did he take the memo out, the undated memo out and actually use it to refer to or pass it around to the people at the meeting?

COLONEL WILLIAMS: I -- I can't answer -- I don't recall that, sir. I don't know if he -- if there was a piece of paper passed around, you know, or papers passed around or not. I don't recall that.

MR. CHERTOFF: Did you -- did he make reference to the actual percentages or numbers in Maryland and in the various stations in Troop D?

COLONEL WILLIAMS: To best of my recollection, yes.

MR. CHERTOFF: And did he make it clear that the numbers in New Jersey were on a par or equivalent to the numbers in Maryland?

COLONEL WILLIAMS: To the best of my recollection, that was brought forward, yes, sir.

MR. CHERTOFF: And did Sergeant Gilbert and/or Deputy Attorney General Rover make it clear that it was that particular set of numbers in Maryland which had led to the consent decree?

COLONEL WILLIAMS: Well that was -- that was what the topic of the conversation was. You know, this is what Maryland has, this is what happened to Maryland and, you know, this is what New Jersey has. We really don't want that to happen in New Jersey.

MR. CHERTOFF: Were there questions from anybody about this information?

COLONEL WILLIAMS: I -- I can't recall that right off, sir. I don't -- I'm sure there were, but I can't recall, you know, did so and so ask a specific question, I don't recall.

MR. CHERTOFF: Well did the people in the Attorney General's Office seemed baffled or puzzled or surprised about this?

COLONEL WILLIAMS: I don't think they were baffled or puzzled or surprised. I thought they, you know, were aware of the contents.

MR. CHERTOFF: Was there discussion about the significance of consent to search information? Did anybody say it's meaningful, it's not meaningful, it tells us something or it doesn't tell us something?

COLONEL WILLIAMS: Well there was discussion that it didn't bode well for the New Jersey State Police.

MR. CHERTOFF: Did anybody suggest that someone look at the underlying cases or files to dig deeper to see whether the numbers, you know, were as bad as they seemed?

COLONEL WILLIAMS: I think I had previously made that recommendation.

MR. CHERTOFF: To who?

COLONEL WILLIAMS: To the IAB and people that were, you know, Tommy Gilbert, the people that were gathering the statistics.

MR. CHERTOFF: That they should actually look at the individual cases to see what the reasons for the troopers asking to search the cars?

COLONEL WILLIAMS: What the underlying reason was, to the best of my recollection.

MR. CHERTOFF: Did that come up at the meeting on May 20th?

COLONEL WILLIAMS: Again I don't -- I don't specifically recall that being a part of the conversation, no, sir.

MR. CHERTOFF: What was said about the issue of New Jersey entering into a consent decree?

COLONEL WILLIAMS: Well again, there was consensus that the Attorney General and the State Police would do everything they could to -- to avoid having to sign a consent decree with the Justice Department, similar to the one that had been brought upon the Maryland State Police.

MR. CHERTOFF: What was your reaction to that?

COLONEL WILLIAMS: I was happy.

MR. CHERTOFF: Were you relieved?

COLONEL WILLIAMS: Appreciated, relieved that the -- we were getting the support from the Attorney General's Office that I thought that the troopers deserved.

MR. CHERTOFF: Was there any discussion at the meeting about somebody talking to the -- to Attorney General Reno?

COLONEL WILLIAMS: I don't know if there was a discussion about a prior talk with Attorney General Reno or there would be a subsequent talk with Attorney General Reno after this meeting, you know, either the -- I think it was either the Attorney General said, you know, I have talked to the Attorney General Reno or I will go in the future to Washington and talk to Attorney General Reno.

MR. CHERTOFF: What was your reaction to that?

COLONEL WILLIAMS: Again I was pleased.

MR. CHERTOFF: Now let me just kind of try to put this in context. I mean is it fair to say this issue of having the Justice Department sticking itself into the State Police was not something that you were happy with?

COLONEL WILLIAMS: No, sir.

MR. CHERTOFF: And you certainly didn't want to have a consent decree, right?

COLONEL WILLIAMS: No, sir.

MR. CHERTOFF: I take it in your interactions with police officials from Maryland they made it clear to you that having a consent decree to work under was not a wonderful fun thing, right?

COLONEL WILLIAMS: Well not only Maryland, but every other -- every other State Police agency in the -- you know, especially this northeast region and New Mexico, Texas. It's my recollection that nobody was real happy with, you know, these goings on.

MR. CHERTOFF: So now the time comes to have a meeting with the Attorney General to discuss the implications of the consent to search --

COLONEL WILLIAMS: Yes, sir.

MR. CHERTOFF: -- information. You understood that the consent to search information was the point of vulnerability for Maryland, right?

COLONEL WILLIAMS: Yes, sir.

MR. CHERTOFF: It wasn't hard to figure out that the people in the Justice Department would look at Maryland, would figure out the consent to search that was helpful to the plaintiffs in Maryland and would look for the same stuff in New Jersey, right?

COLONEL WILLIAMS: No doubt in my mind, sir.

MR. CHERTOFF: It was easy to figure out that the Department of Justice would do that, right?

COLONEL WILLIAMS: Yes, sir.

MR. CHERTOFF: So -- and then, of course, you knew that if they looked at the numbers in New Jersey, those numbers would look about as bad as the ones in Maryland, right?

COLONEL WILLIAMS: Yes, sir.

MR. CHERTOFF: So is it fair to say that one of the reasons you were looking -- one of the things you were looking to accomplish in the meeting with the Attorney General was to find out how supportive the Attorney General will be of the State Police in light of these facts that were coming out about the statistics in New Jersey as they compared to the statistics in Maryland, right?

COLONEL WILLIAMS: Yes, sir.

MR. CHERTOFF: You wanted to find out in effect is the Attorney General going throw the towel in and consent to something or is he going to fight it out?

COLONEL WILLIAMS: That's correct, sir.

MR. CHERTOFF: And he basically said I'm going to fight it out?

COLONEL WILLIAMS: Yes, he did, sir.

MR. CHERTOFF: And you were happy about that?

COLONEL WILLIAMS: Yes, sir.

MR. CHERTOFF: And that was important to you to find that out?

COLONEL WILLIAMS: Yes, sir.

MR. CHERTOFF: And I'm sure you made it clear to the Attorney General that it was important to you in that meeting?

COLONEL WILLIAMS: Certainly did, sir.

MR. CHERTOFF: And is it fair to say that the importance of it was unmistakable to the participants at the meeting?

COLONEL WILLIAMS: I -- you know, I can't be in everybody's mind, but in my mind, yes, sir.

MR. CHERTOFF: You certainly made it as clear as you could?

COLONEL WILLIAMS: Yes, sir.

MR. CHERTOFF: Now at some point in this discussion though, putting aside the question is there going to be a consent decree, there's not going to be a consent decree and the litigation, did anybody actually turn to you and say in substance, first of all, is their racial profiling?

COLONEL WILLIAMS: Not that I -- that never happened, sir.

MR. CHERTOFF: Did anybody turn to you and say, Colonel, are you doing some kind of analysis with these numbers to determine by looking at the actual cases whether we could explain why these searches are going on?

COLONEL WILLIAMS: I -- I don't recall that specific question being asked of me, no, sir.

MR. CHERTOFF: In any of the meetings you had with the Attorney General or anybody from the Attorney General's Office up through this meeting in May of 1997, was there discussion in which the Attorney General's Office indicated an interest in what the State Police were doing to find out if there was inappropriate profiling and to correct it if it existed?

COLONEL WILLIAMS: Well I'm sure that, you know, they were aware of the statistics and the records that we were gathering with regards to the request from Justice Department and the other materials that were being turned over to -- to DAG Rover. But specifically, I don't recall that happening.

MR. CHERTOFF: I mean I -- because I want to make sure. I'm asking a little different question. I'm not asking whether they're aware of things that are being collected. I'm asking in the face-to-face -- either face-to-face meetings you had with the Attorney General's Office in December, January and May, and have I covered all those meetings you had in the Attorney General's Office? There were two in December, one in January and one in May, right?

COLONEL WILLIAMS: To the best of my -- with regards to --

MR. CHERTOFF: Profiling.

COLONEL WILLIAMS: -- this issue.

MR. CHERTOFF: Was there a discussion -- did somebody turn to you from the Office of the Attorney General at some point and say in substance, Colonel, do we actually have a problem and how do we find out if we do and what are you doing to fix it?

COLONEL WILLIAMS: Not to the best of my recollection, no, sir.

MR. CHERTOFF: Did you expect anybody to ask you that?

COLONEL WILLIAMS: Well I more or less did, yes. But as I said, you know, we had already started some -- some preliminary I guess you would call activity within the organization to look at it, you know, on our own and to -- to gather this information.

MR. CHERTOFF: Now did you -- after this meeting on May 20th, you left, you felt happy with the Attorney General's decision about a consent decree, right?

COLONEL WILLIAMS: That is correct.

MR. CHERTOFF: Did you leave with any direction or order to do something with respect to addressing the issue of racial profiling after you left -- exited from that meeting?

COLONEL WILLIAMS: Not that I recall, no, sir.

MR. CHERTOFF: Did anybody say, get back to me by or, get back to us by X period of time, let us know how we're doing the next six months, and let us know what your statistics have shown?

COLONEL WILLIAMS: No, sir.

MR. CHERTOFF: Now, did you yourself after the May 20th meeting yourself ask to get updates on statistics with respect to profiling and other information that would show whether profiling was going on or not?

COLONEL WILLIAMS: Yes, sir.

MR. CHERTOFF: Who did you ask to do that?

COLONEL WILLIAMS: Again, to the best of my recollection it was either one of the lieutenant colonels, I don't know if it was still Littles at the time or if it was Roberson who had taken his place, and then down through the chain of command with Tommy Gilbert, Sergeant Gilbert being the collection point or the linchpin, so to speak.

MR. CHERTOFF: And after May of 1997 did you receive periodic reports indicating that in fact there was -- you were getting statistics after May of 1997 about those stops and consents to search?

COLONEL WILLIAMS: Yes, sir.

MR. CHERTOFF: Now, I'm going to show you G-25 for identification. It's a memo to you from Sergeant Gilbert dated July 10, '97, GC-2172.

COLONEL WILLIAMS: Yes, sir.

MR. CHERTOFF: You recognize that?

COLONEL WILLIAMS: Yes, sir.

MR. CHERTOFF: And you got this through Lieutenant Blaker from Sergeant Gilbert, right?

COLONEL WILLIAMS: Yes, sir.

MR. CHERTOFF: And this had to do with the 30 dates in '95 and '96 that the Department of Justice had requested information about, right?

COLONEL WILLIAMS: That is correct, sir.

MR. CHERTOFF: And it showed that the proportion of consent searches for minorities was quite high, is that fair to say?

COLONEL WILLIAMS: Yes, sir.

MR. CHERTOFF: And did that concern you?

COLONEL WILLIAMS: It concerned me, yes, sir, to the degree that we had to do -- and again, you know, I'm not trying to avoid your question, but we had to do more and look into this, and also to -- it concerned me because these stations, Moorestown and Cranbury, historically the Turnpike was known as Cocaine Alley, and that's where the drugs were run north into the northeast area. And, you know, we had to do a, I guess you would call it, a review as to what each one of those stops was, why it happened, how it happened, and what the -- what the end results were.

MR. CHERTOFF: Did you direct that that be done, that there be a review of each of the stops?

COLONEL WILLIAMS: To the best of my recollection, yes, sir.

MR. CHERTOFF: And each of the services?

COLONEL WILLIAMS: And -- well, I don't know about the searches. I would assume that, you know, they would have done a combination when they -- they would be synonymous.

MR. CHERTOFF: Well, do you know if that was ever done?

COLONEL WILLIAMS: I was under the impression that it was.

MR. CHERTOFF: Did you ever see a report about it?

COLONEL WILLIAMS: No, sir, I didn't.

MR. CHERTOFF: Did you ever get asked about what was going on on these -- with respect to this analysis by anybody in the Office of the Attorney General?

COLONEL WILLIAMS: Not to the best of my recollection, no, sir.

MR. CHERTOFF: Was it your understand that the -- that the content of this document was conveyed to the Office of the Attorney General by somebody?

COLONEL WILLIAMS: I was under that impression, yes.

MR. CHERTOFF: And what was the basis for that impression?

COLONEL WILLIAMS: Again, it was a document generated by Lieutenant -- Sergeant Gilbert, who was instructed to share all information with the Office of the Attorney General.

MR. CHERTOFF: Did you hear anything back about this particular document or set of figures from anybody in the Office of the Attorney General?

COLONEL WILLIAMS: Not that I can recall, sir.

MR. CHERTOFF: Okay. Let me show you a couple of other documents. There's CW-20, CW-15 and CW-22, and I'll tell you what they are. And there's -- CW-20 is a document dated sometime in, I think it's February, 1998, from Major Sparano to you, six-month assessment of enforcement activity, Cranbury, Moorestown Stations. It's probably -- you signed off on it in March 5th, 1998. Then there's another document, CW-15 is a memo to you from Lieutenant Faranello, radio log synopsis and consent to search and probable cause, for the month of May, '97 for Cranbury and Moorestown Station. And then the last one is a 1998 document that covers -- it's to

-- it's to you from Captain Cartwright. It's the six-month assessment of enforcement activity at Cranbury and Moorestown Station. You have those three documents?

COLONEL WILLIAMS: Yes, sir.

MR. CHERTOFF: Okay. Let's be chronological about it. First of all, you have the document that's June 6th, 1997. This is a radio log synopsis and consent to search and probable cause synopsis for May, 1997. Now, you had ordered these reports going forward, right?

COLONEL WILLIAMS: Yes, sir.

MR. CHERTOFF: And the purpose of this was to show composition with respect to stops and with respect to searches, right?

COLONEL WILLIAMS: Yes, sir.

MR. CHERTOFF: And this was recorded here -- this document was recorded for the month of May, 1997, right?

COLONEL WILLIAMS: Yes, sir.

MR. CHERTOFF: Okay. Now, the next document, which is CW-20, is a six-month snapshot, right?

COLONEL WILLIAMS: Yes, sir.

MR. CHERTOFF: Now the radio log shows who's stopped, right? The radio long synopsis shows the stops?

COLONEL WILLIAMS: Yes, sir.

MR. CHERTOFF: And the consent to search synopsis shows the consents to search, right? Correct?

COLONEL WILLIAMS: Yes, sir.

MR. CHERTOFF: Okay. Let's go to the first page -- or second page of the document. This is the consent searches at Cranbury Station and Moorestown Station, right?

COLONEL WILLIAMS: Yes, sir.

MR. CHERTOFF: Now, would you agree with me that the six-month percentages for Cranbury Station during this six-month was approximately slightly under 30 percent white for consent searches?

COLONEL WILLIAMS: Yes, sir.

MR. CHERTOFF: And then the combined -- for black it would be 45.6 percent consent searches, and for Hispanic, 23.4 consent searches, right?

COLONEL WILLIAMS: Yes, sir.

MR. CHERTOFF: So it'd be fair to say that essentially it's about 70 percent minority consent searches and 30 percent white, right?

COLONEL WILLIAMS: Yes, sir.

MR. CHERTOFF: And with respect to Moorestown it's somewhat even more striking, it's about 21 percent whites being searched, right?

COLONEL WILLIAMS: Yes, sir.

MR. CHERTOFF: And approximately 77 or 78 percent minorities being searched, right?

COLONEL WILLIAMS: Yes, sir.

MR. CHERTOFF: Now, let's move to the next document. That is the document that covers this issue of consents to search, again, for the same six-month period but now in 1998, right? Is that right?

COLONEL WILLIAMS: Where are you?

MR. CHERTOFF: We're on document CW-22, OAG-2152. It shows consent searches at Moorestown and Cranbury.

COLONEL WILLIAMS: Okay. So you went to the next one?

MR. CHERTOFF: Right, we're on the next -- but keep the first one open because I want to do some comparisons.

COLONEL WILLIAMS: 2156, correct?

MR. CHERTOFF: 2152 is the page number.

COLONEL WILLIAMS: 2152?

MR. CHERTOFF: Right. And I want you to have that page open and 2313 open. And tell me if you agree with me that page 2313 shows the six-month period of April through September for '97, and 2152 shows the same period for '98, right?

COLONEL WILLIAMS: Yes, sir.

MR. CHERTOFF: Now, let's go -- let's compare. If you look at Cranbury in '98 and Cranbury in '97, '97 Cranbury showed, I think we concluded, about 70 percent minorities being searched, right, in '97?

COLONEL WILLIAMS: Yes, sir.

MR. CHERTOFF: And if you look at the same period of time for the same station for 1998, the number of minorities being searched has now gone to about 76 or 77 percent, right?

COLONEL WILLIAMS: Yes, sir.

MR. CHERTOFF: So it's actually gone up, correct?

COLONEL WILLIAMS: Excuse me?

MR. CHERTOFF: It's actually increased?

COLONEL WILLIAMS: It's an increase, yes, sir.

MR. CHERTOFF: All right. And then let's go to Moorestown. Moorestown again shows in 1997 is approximately 76 or 78 percent minorities being searched?

COLONEL WILLIAMS: Yes, sir.

MR. CHERTOFF: And then with respect to Moorestown in '98 it's approximately 75 percent being searched, right?

COLONEL WILLIAMS: Yes, sir.

MR. CHERTOFF: So it's approximately the same, right?

COLONEL WILLIAMS: Yes, sir.

MR. CHERTOFF: And those figures are not terribly lower than the figures you'd been told about going back to '95 and '96 when you got your original report from Sergeant Gilbert, correct?

COLONEL WILLIAMS: That's correct, sir.

MR. CHERTOFF: So -- to the extent you're monitoring numbers it's telling you the numbers aren't getting -- aren't changing very much, right?

COLONEL WILLIAMS: No, sir.

MR. CHERTOFF: Did this concern you?

COLONEL WILLIAMS: Well, again, it concerned me, but also, as I stated before, you have to take into consideration that the Turnpike was a prime mover of drugs north through the State of New Jersey for further distribution in the -- in the drug culture.

MR. CHERTOFF: Well, we'll get to that in a second, but I want to ask you this question. To the extent you were -- first of all, was it your understanding these numbers were being communicated to the Office of the Attorney General?

COLONEL WILLIAMS: Again, it was my understanding that they were.

MR. CHERTOFF: You certainly saw them, right?

COLONEL WILLIAMS: I saw them, yes, sir.

MR. CHERTOFF: And you certainly ordered that these numbers be kept, right?

COLONEL WILLIAMS: Yes, sir.

MR. CHERTOFF: And they're being kept for a purpose, right?

COLONEL WILLIAMS: Yes, sir.

MR. CHERTOFF: Because even though the numbers don't prove that there's racial profiling they certainly raise a big red flag, right?

COLONEL WILLIAMS: It showed that there's a flag out there, yes, sir.

MR. CHERTOFF: Right. So now you have this red flag up in '95 and '96 and continues through '97, it continues in '98. My question to you is, did you do something further to investigate or examine why the numbers were continuing to remain at the same level with respect to consents to searches even though you were implementing new policies and sending out memos and doing things of that sort?

COLONEL WILLIAMS: Again, you know, as you said, I did the -- set up those policies, those directives. You know, the only thing I can say, to repeat myself, is that, you know, this was a prime route for the movement of drugs in the State of New Jersey.

MR. CHERTOFF: What does that have to do with the percentage of minorities who were searched or as opposed to -- what does that have to do with the fact that there's a lot of drugs?

COLONEL WILLIAMS: Well the -- you know, the statistics that -- that's why we were gathering these statistics to find out, you know, what that reason was.

MR. CHERTOFF: Well did you find it out?

COLONEL WILLIAMS: According to these statistics, one would take that the -- you know, that's who were moving the drugs up the -- all these -- and I don't know if these arrests were all for drugs or what they were for, you know, what the arrest was for.

MR. CHERTOFF: Well these are searches, not arrests.

COLONEL WILLIAMS: These were searches.

MR. CHERTOFF: Right. Did you do any analysis to --

COLONEL WILLIAMS: Well, again, I don't know if they became arrests or not further into -- into the investigation.

MR. CHERTOFF: Well you say -- was there an investigation about why these numbers were continuing to be high?

COLONEL WILLIAMS: Was there an investigation?

MR. CHERTOFF: Yeah. Did you have someone investigate why the numbers were continuing to be high with respect to minorities being searched?

COLONEL WILLIAMS: Not at that time, no, sir.

MR. CHERTOFF: So in -- well you have this meeting about consents to search on May 20th, 1997. Now a year and a half later, when the numbers are still high, my question to you is, what if anything as far as you know was being done to figure out if there is a problem, a racial profiling problem with respect to these numbers?

COLONEL WILLIAMS: Well we were starting to look at individual troopers to see, you know, what their activity was, were they high in one specific area, things like that.

MR. CHERTOFF: Well when -- when did you start to look at those underlying issues?

COLONEL WILLIAMS: Well I think it was an ongoing process within the State Police, you know, from years gone back.

MR. CHERTOFF: Well was there an end point to the process? Did you set a deadline, I want to know by a certain time, I want a report back as to what -- what the facts are underlying these cases?

COLONEL WILLIAMS: No. I didn't have a chance to set that deadline.

MR. CHERTOFF: Well you say from 1997 to 1999 you didn't have a chance to set a deadline to get a report back to be told this is why these searches were done?

COLONEL WILLIAMS: Right.

MR. CHERTOFF: You couldn't set a deadline in those two years?

COLONEL WILLIAMS: I didn't set a deadline, sir.

MR. CHERTOFF: Why not?

COLONEL WILLIAMS: I was still in the -- in the fact-finding mode to find out what was going on.

MR. CHERTOFF: Well how many years did you envision were going to go by in fact-finding mode before you finally said to somebody, I want to get the facts you found?

COLONEL WILLIAMS: Well they were providing me with the facts through these reports.

MR. CHERTOFF: But they weren't --

COLONEL WILLIAMS: We wanted to find out where the problem was in the organization.

MR. CHERTOFF: And did anybody come up with an answer that they gave you?

COLONEL WILLIAMS: Not to my recollection.

MR. CHERTOFF: Did you push anybody for it?

COLONEL WILLIAMS: Did I push anybody? Other than to continue what we were doing, no, sir.

MR. CHERTOFF: Did you feel any pressure from the Office of the Attorney General to come up with some answers about how things are going with respect to consent to searches? Did you feel pressure to do that?

COLONEL WILLIAMS: Not until maybe 19 -- May of 1999.

MR. CHERTOFF: Well actually you left in February of 1999.

COLONEL WILLIAMS: Right. Excuse me, '98.

MR. CHERTOFF: In May of '98 you started to feel that pressure?

COLONEL WILLIAMS: Right.

MR. CHERTOFF: And that was after the Hogan and Kenna shooting on the Turnpike?

COLONEL WILLIAMS: That is correct.

MR. CHERTOFF: In your dealing with these statistics that you kept getting on these reports in '97 and '98, is it fair to say that -- well you've indicated to us you didn't set a deadline for a report about the underlying facts. Is it fair to say you believed you had the support of the Office of the Attorney General in the way you were conducting and handling the issue of racial profiling?

COLONEL WILLIAMS: Yes, sir.

MR. CHERTOFF: Was that the message you left with on May 20th, 1997, that they were okay and supportive of the State Police?

COLONEL WILLIAMS: Yes, sir.

MR. CHERTOFF: And based on that, did you feel that the way you were handling the review of this information going forward was acceptable to everybody in the Department of Law and Public Safety?

COLONEL WILLIAMS: Yes, sir.

MR. CHERTOFF: Nobody really lit a fire under you to get -- come to grips with this until 1998, is that fair to say?

COLONEL WILLIAMS: That's correct.

MR. CHERTOFF: And then in 1998 the Troop D audit was started, right?

COLONEL WILLIAMS: Yes, sir.

MR. CHERTOFF: But that had to do with falsification, right?

COLONEL WILLIAMS: Falsification of records.

MR. CHERTOFF: It was not a general -- it was still not a general understanding of the proportions with respect to consent to search, right?

COLONEL WILLIAMS: It was the first step in a broadening after that, yes, sir.

MR. CHERTOFF: Now in connection with -- again, certainly before 1998, before May 1998, in connection with these reports you were getting about the statistics on the Turnpike, did anybody ever put together a work plan or some kind of a program for what investigation would be undertaken to get behind the numbers or see whether the numbers really showed that there was profiling?

COLONEL WILLIAMS: I think eventually Colonel Dunlop got together and started some type of -- with a work plan and a direction.

MR. CHERTOFF: That was the Troop D audit?

COLONEL WILLIAMS: Yes, sir.

MR. CHERTOFF: Having to do with falsification?

COLONEL WILLIAMS: Yes, sir.

MR. CHERTOFF: But not having to do generally with the statistics, right?

COLONEL WILLIAMS: Well like I say, that was going to be the initial thrust and then go from there.

MR. CHERTOFF: Now -- and that was Colonel Dunlop's idea?

COLONEL WILLIAMS: To the best of my recollection, yes, sir.

MR. CHERTOFF: Now let me ask you this. Did you ever order anybody in the State Police to withhold any information from the Office of the Attorney General or the Department of Justice regarding racial profiling?

COLONEL WILLIAMS: Absolutely not, sir.

MR. CHERTOFF: To your knowledge, did anybody in the State Police ever make a decision to withhold information about racial profiling from the Office of the Attorney General or the Department of Justice in Washington?

COLONEL WILLIAMS: Absolutely not, sir.

MR. CHERTOFF: Did you ever refuse a request or tell someone to refuse a request from the Office of the Attorney General for information about racial profiling?

COLONEL WILLIAMS: Absolutely not, sir.

MR. CHERTOFF: Did there come a point in time that you became aware of an interim report that was published from the State Police Review Team?

COLONEL WILLIAMS: That was after I was gone.

MR. CHERTOFF: Right. You became aware of it after you were gone? Well how'd you find out about the State Police Review Team that was announced on February 10th, how did you find out that was going to happen?

COLONEL WILLIAMS: I was brought down to the -- I was called down to the Attorney General's Office and I think I took Colonel Dunlop and Colonel Fedorko and I was told that this is what's going to happen.

MR. CHERTOFF: Namely what?

COLONEL WILLIAMS: There's going to be a State Police Review Team and they're going to start looking at the total State Police and DAG and I guess he was Director, Paul Zoubek was going to be in charge of it, you work with him.

MR. CHERTOFF: Were you consulted about it beforehand?

COLONEL WILLIAMS: No, sir.

MR. CHERTOFF: How was it actually presented to you? How did you actually -- tell us exactly how you learned about it? You come into the office, what happens?

COLONEL WILLIAMS: Well that's -- I was told in the office just what I just related to you, that there's going to be a Review Team set up at the State Police. There's going to be -- the Attorney General's going to be in charge of it. You'll provide the resources necessary, cooperate and that was basically it.

MR. CHERTOFF: When -- when was it announced?

COLONEL WILLIAMS: When?

MR. CHERTOFF: Publicly, yeah. How soon after you were told about it was it announced?

COLONEL WILLIAMS: I think it was announced in a press release, I don't know, within a day or whatever. I don't remember a specific date.

MR. CHERTOFF: Now did you have any involvement with the State Police Review Team from the time it was announced on about February 10th until you left on February 28th?

COLONEL WILLIAMS: No, sir, not much.

MR. CHERTOFF: Now as far as you know, was there information available about statistics as it relates to stops, arrests and consents to search in 1999 that was significantly different than what was available in 1997, except obviously for the fact that things that occurred in '98 had not yet occurred in 1997? But was there a significant difference in what was known in '99 from what you knew in '97 about the general statistical pattern?

COLONEL WILLIAMS: If I remember correctly, I think the statistical pattern -- and we're talking about the two stations still?

MR. CHERTOFF: Yeah.

COLONEL WILLIAMS: Had basically stayed the same if I remember correctly.

MR. CHERTOFF: Did anyone ever tell you why in '99 -- why there was a perception in '99 -- let me withdraw the question. In your mind, was your perception of the existence or the evidence of racial profiling in '99 different than it was in '97?

COLONEL WILLIAMS: No, sir.

MR. CHERTOFF: You thought it was the same, '97 and '99?

COLONEL WILLIAMS: Yes, sir.

MR. CHERTOFF: And the numbers were basically the same?

COLONEL WILLIAMS: Numbers were basically the same, yes.

MR. CHERTOFF: Now there is a portion of a draft report which was not -- which was ultimately deleted or watered down which I've read to others, but I want to give you an opportunity to comment on it. It said, "We feel constrained to comment that some of the statistical information we relied upon including particularly revealing data concerning consent searches were only recently disclosed by the State Police to the Office of the Attorney General." Based on your memory of the May 1997 meeting, do you agree with that statement?

COLONEL WILLIAMS: Absolutely not.

MR. CHERTOFF: "Certain internal studies and audits prepared at the request of the Superintendent were not made known to the Deputy Attorney General who were representing the State in the Soto litigation." To your knowledge, was any such information not made known at your request?

COLONEL WILLIAMS: Not to my knowledge, sir.

MR. CHERTOFF: And you certainly didn't request that it not be made known?

COLONEL WILLIAMS: Absolutely not, sir.

MR. CHERTOFF: And it says, "This circumstance has seriously compromised the State's litigation posture and it also has needlessly delayed initiating appropriate remedies." Did you agree with that?

COLONEL WILLIAMS: Could you repeat that, sir? You kind of turned away from the microphone a little bit.

MR. CHERTOFF: I'm sorry. It says, "This circumstance has seriously compromised the State's litigation posture and it also has needlessly delayed initiating appropriate remedies and reforms." Did you agree that anything the State Police did compromised the State's litigation posture?

COLONEL WILLIAMS: Absolutely not, sir.

MR. CHERTOFF: Now I want to ask you this. Obviously this didn't appear in the final report, but at a point in time this reflected someone's opinion. Am I correct that if the State Police were to deliberately withhold information on a legal matter from the Office of Attorney General, it would be a very serious institutional problem with the Government of the State of New Jersey, right?

COLONEL WILLIAMS: Absolutely, sir.

MR. CHERTOFF: I mean the State Police is ultimately supposed to be under the control of the civilian Attorney General of the State, right?

COLONEL WILLIAMS: Absolutely, sir.

MR. CHERTOFF: And I assume what that means is that like it or not, the State Police have to give to the Attorney General's Office what the Attorney General's Office wants?

COLONEL WILLIAMS: And when they want it, sir.

MR. CHERTOFF: Now were you -- to your knowledge, as far as you were concerned, was there ever any kind of investigation or inquiry undertaken before we began this set of hearings to determine whether in fact the State Police had deliberately withheld, you know, material information from the Attorney General's Office?

COLONEL WILLIAMS: Not to my knowledge, sir.

MR. CHERTOFF: Did anybody interview you about it or ask you questions about it back in 1999?

COLONEL WILLIAMS: No, sir.

MR. CHERTOFF: And again, I have to ask you because you were the Superintendent of the State Police. You had the ultimately responsibility. To your knowledge, whether at your direction or otherwise, did anybody in the State Police withhold or delay turning over material information or documents to the Office of the Attorney General in a timely fashion?

COLONEL WILLIAMS: No, sir.

MR. CHERTOFF: Was your direction to your subordinates at any time different than to simply obey what the Attorney General's Office wanted?

COLONEL WILLIAMS: That is correct, sir.

MR. CHERTOFF: Mr. Chairman, I don't think I have any further questions.

SENATOR GORMLEY: Jo? Jo, do you have any questions?

(Pause)

SENATOR GORMLEY: One thing we've learned, nothing takes a second.

(Pause)

MS. GLADING: Colonel Williams.

COLONEL WILLIAMS: Yes, ma'am.

MS. GLADING: Hi. Can you discuss the details around the interview that you had with the Star Ledger a couple of days before your firing or your discharge or your resignation?

COLONEL WILLIAMS: In regards to what, ma'am? I mean I was --

MS. GLADING: How was the meeting set up?

COLONEL WILLIAMS: How was it set up?

MS. GLADING: Um-hmm.

COLONEL WILLIAMS: I was advised by my Public Information Bureau person, John Haggerty, that a -- that a newspaper reporter from the Star Ledger had made a request to spend a day with me and follow me through a -- for want of a better word, a Superintendent's day or a Colonel's day and that, you know, it had been approved by the Attorney General's Office and that I think it was, if I remember correctly it was a Friday and that he would be -- you know, he'd meet me in the morning and we would go through the day. And during this period of time that I would be followed and then asked questions about, you know, what I do and also about other issues facing the New Jersey State Police.

MS. GLADING: Okay. And is that how the day went, he met you in the morning and spent the day with you?

COLONEL WILLIAMS: Again, ma'am, I --

MS. GLADING: Is that how the day went then, he met you in the morning and spent the day with you?

COLONEL WILLIAMS: Yes, ma'am. We went -- if I remember correctly, we started out, we went down before the SCI and testified down there about a matter that I can't recall right now. I don't know if we went another place down here in the State House Complex. Then we came back to Division Headquarters, went around and did, you know, like a tour and then he started interviewing me, asking me some questions.

MS. GLADING: Okay. So when he started interviewing you and asking questions, what -- just help me put me in the place at the time, was John Haggerty or Cosgrove with you at the time of the interview?

COLONEL WILLIAMS: I remember John Haggerty being there. I don't -- I can't recall Danny Cosgrove, Lieutenant Cosgrove, he might have been there, but I do not recall him, you know, basically being there all day. In other words, when we were back at Division Headquarters, he might have come in at that time.

MS. GLADING: Okay. When the interview was being conducted at the end of the day you'd spent with -- was it Joe Donahue, do you recall?

COLONEL WILLIAMS: Yes, ma'am, Joe Donahue, yes, ma'am.

MS. GLADING: When the interview was being conducted, was it just you and he in the office or was there a press person there?

COLONEL WILLIAMS: To the best of my recollection, as I say, I know John Haggerty was there and I don't think -- I think it was just the three of us. I don't think Lieutenant Cosgrove was there.

MS. GLADING: Okay. And when Mr. Donahue began asking questions about your views about racial profiling and drug courier profiling --

COLONEL WILLIAMS: Yes, ma'am.

MS. GLADING: -- was there an interruption then in the interview?

COLONEL WILLIAMS: Not that I recall.

MS. GLADING: You stayed in the room the entire time? There was no break?

COLONEL WILLIAMS: You know, I mean there might have been a phone call or something like that, but did I ask Mr. Donahue to leave my presence, I don't think any of that happened, no, ma'am.

MS. GLADING: Okay. And did you have briefing materials or background materials that you shared with him or read from or reviewed with Mr. Donahue that made the case that you had made about crime patterns and gang activities?

COLONEL WILLIAMS: I might have had the State Police annual reports from, you know, maybe a couple years back, you know, and my general knowledge of law enforcement.

MS. GLADING: Okay. And did you keep those reports in your office all the time so it would have been natural for you to have them?

COLONEL WILLIAMS: The -- the annual reports? Yes, ma'am, I did.

MS. GLADING: Okay. There were no other materials you were working off of that day?

COLONEL WILLIAMS: Not that I recall, no.

MS. GLADING: Okay. Can you tell me when the DI -- the Drug Interdiction Training Unit or I guess it ultimate -- it later became Operation R.O.A.D.S.I.D.E., when --

COLONEL WILLIAMS: It started out as DI -- Drug Interdiction Training Unit, yes, ma'am, and it did become -- I think it then evolved into R.O.A.D.S.I.D.E.

MS. GLADING: Can you tell me when you disbanded it?

COLONEL WILLIAMS: I -- I can't recall specifically, no.

MS. GLADING: It happened during your tenure, right?

COLONEL WILLIAMS: I'm pretty sure it did, but I can't -- you know, I can't give you a date. I'm sorry.

MS. GLADING: Who was the head of it when it -- when it was disbanded? Who was in it, do you recall?

COLONEL WILLIAMS: No, not really. I don't know if -- I don't know if Sergeant Brian Caffery was still -- still in charge of it then or not. But I can't -- sorry.

MS. GLADING: Okay. No, that's all I have. Thank you.

SENATOR ROBERTSON: Colonel, when you were asked some questions by Mr. Chertoff about Moorestown and Cranbury headquarters or stations -- you were asked some questions about the Moorestown and Cranbury stations, you referred to Cocaine Alley, was it?

COLONEL WILLIAMS: Yes, sir.

SENATOR ROBERTSON: Could you explain what that statement -- what that phrase refers to?

COLONEL WILLIAMS: Well that was a -- you know, it was common that -- commonly known through the police community that the New Jersey Turnpike along with -- which was part of the 95 Corridor which extends from Florida all the way up into Maine, was a prime road that was used to transport illicit drugs from either port of entry down south or wherever, and it was also used to send the proceeds, the monies back down through, you know, into Florida or wherever they might -- Texas, wherever they might be taking it, Mexico.

SENATOR ROBERTSON: All right. So that some of these cars would obviously go through various states I guess then?

COLONEL WILLIAMS: Well they would go through numerous states, sir, yes.

SENATOR ROBERTSON: And as a matter of fact, the first of the various reports regarding statistics which talks about consent search indicates that 78 percent of the consents that were requested, were requested of out-of-state vehicles. That doesn't surprise you then in light of that?

COLONEL WILLIAMS: No, sir, it does not.

SENATOR ROBERTSON: So it's sort of rule of thumb to keep your eye out for out-of-state plates or out-of-state --

COLONEL WILLIAMS: Well it was -- you know, again it was information that was imparted to us from the Drug Enforcement Administration, the Office of Highway Traffic Safety. You know, every meeting, like I said, with the IACP, we'd go to the meetings and, you know, they'd clean the room out and the director of the DEA would get up and say, here's where the drugs originate, here's where they're going, these are the routes they're taking, this is how they're getting there, these are the people that are involved in it, the cartels, et cetera, et cetera, that are doing it. I mean it was -- you know, it was police knowledge.

SENATOR ROBERTSON: And so that as a trooper takes a look at the variety of, you know, indicators that might result in consent search, that might be one of them?

COLONEL WILLIAMS: Well it's -- you know, but to digress back, the trooper should -- there's no reason to stop anybody just because of their race. If the trooper had a legitimate stop, speeding, a motor vehicle violation, sometimes, you know, it would be a civil aid, you know, they get flat tires, et cetera, et cetera and if there was something that aroused that trooper's suspicion, you know, the thrust was to go beyond that ticket. In other words, don't write -- just write a ticket, be a -- be a true law enforcement officer and check out what's going on, try to rid the country, you know, of the drug scourge.

SENATOR ROBERTSON: But I take it that, you know, 78 percent out of 100 -- let's put it this way, that out-of-state drivers aren't necessarily shiftier looking than in-state drivers I take it?

COLONEL WILLIAMS: No, sir.

SENATOR ROBERTSON: Oh, okay. And yet 78 percent of those consent searches were folks from out-of-state I take it in part because of the sensitivity to the interstate nature of drug travel?

COLONEL WILLIAMS: And not only that, but that's -- that's where the -- you know, the shipment would start, out-of-state.

SENATOR ROBERTSON: True.

COLONEL WILLIAMS: It wasn't the State of New Jersey wasn't normally an import state, it was a pass through state or, you know, a flow through state.

SENATOR ROBERTSON: And the reason I ask that and I guess this is the reason that this is such a sensitive issue is that for that same period of time, looking at the same sample, 82 percent of those were asked to consent to searches were minorities and there will be those who will say that the same informal rule of thumb, the same putting something in the back of your mind, the same thing to look out for might apply in a case like that. How do we distinguish and explain to people numbers like that? Isn't that -- do you think minorities look shiftier than the other 12 percent or excuse me, 18 percent?

COLONEL WILLIAMS: No, sir.

SENATOR ROBERTSON: And I don't say that facetiously. I say it --

COLONEL WILLIAMS: I know, sir. I --

SENATOR ROBERTSON: -- very similarly --

COLONEL WILLIAMS: I said it once and got fired, sir.

SENATOR ROBERTSON: No, I understand. But my point is, do you understand why these figures raise these questions?

COLONEL WILLIAMS: Yes, sir.

SENATOR ROBERTSON: Because we can speak dispassionately perhaps about out-of-state versus in-state drivers, but when we're talking about minorities versus non-minorities, we seem to shift the conversation perhaps a little more defensively or perhaps we fool ourselves about what's in our minds when we make these decisions on the road. How do you explain the numbers personally?

COLONEL WILLIAMS: It's a nation problem, sir. It's not -- it's not a New Jersey problem, it's a nation problem and I -- I don't have the answer.

SENATOR ROBERTSON: And by it you mean what?

COLONEL WILLIAMS: Sir?

SENATOR ROBERTSON: When you say it's a nation -- national problem, by it you mean what?

COLONEL WILLIAMS: The problem with -- and we'll zero in, you mention the word Cocaine Alley, so I assume we're talking about drug transportation, that's a nation problem.

SENATOR ROBERTSON: Well --

COLONEL WILLIAMS: It's not only here in New Jersey, it's -- I mean you had the same thing through New Mexico, Illinois, all the -- that was one of the major concerns when we read these IACP state provincial meetings is, you know, we all have, collectively all State Police agencies have the same problem. And, you know, what's the answer, you know.

SENATOR ROBERTSON: Well I understand -- I understand that as it respects out-of-state cars and why that might even informally, even if it's not supposed to, sort of creep into at least subconsciously the decisions that you make as to whether or not to ask someone to consent to a search. And what I'm asking you is, since the percentage of minorities who are asked is even higher than the percentage of out-of-state drivers, is that the same thing?

COLONEL WILLIAMS: I can't answer that question, sir.

SENATOR ROBERTSON: I have no other questions, Mr. Chairman. Thank you.

SENATOR GORMLEY: Senator Lynch first then Senator -- you had to ask first, that's the way we're doing it.

SENATOR LYNCH: Colonel, was it clear to you as testified to by Sergeant Gilbert and as evidenced by some of his audit information that the -- with regard to the consent searches that, you know, your yielding numbers in the 70 to 90 percent range fairly frequently in terms of minority consent to searches?

COLONEL WILLIAMS: Yes, sir.

SENATOR LYNCH: Is it also clear from the information that you received from Gilbert and others and from his testimony that in terms of the positive searches that occur in those two universes, minority versus non-minority, that the percentage of positive searches for minorities is not -- is not higher than that for the non-minority? Do you understand what I'm saying?

COLONEL WILLIAMS: No, sir, I don't. I'm sorry.

SENATOR LYNCH: For example, if there's 80 percent of the -- of the consent searches in Moorestown for the first six months of 1998 are roughly 80 percent say minority, 20 percent non-minority --

COLONEL WILLIAMS: Yes, sir.

SENATOR LYNCH: Yet out of those -- that universe of minorities that are searched, roughly 25 percent of them have positive searches?

COLONEL WILLIAMS: In other words, there's an arrest made as a result of the -- yes, sir.

SENATOR LYNCH: That they find some contraband?

COLONEL WILLIAMS: There's -- there's a violation, a criminal violation.

SENATOR LYNCH: Yet the -- yet at the same time the statistics seem to show pretty clearly that the rate for the non-minority in terms of positive consent searches are at least as high as the minority?

COLONEL WILLIAMS: Yes, sir.

(Pause)

SENATOR LYNCH: At this May 20, 1997 meeting in the Attorney General's Office --

COLONEL WILLIAMS: Yes, sir.

SENATOR LYNCH: -- it was clear that the Attorney General didn't want to sign a consent decree and you were uplifted by that. Was it also clear that the Attorney General didn't want the Department of Justice inquiry to be turned into an investigation?

COLONEL WILLIAMS: That is correct, sir.

SENATOR LYNCH: And he also made that clear?

COLONEL WILLIAMS: He made that very clear, sir.

SENATOR LYNCH: So now on the one hand we don't -- we're not going to sign a consent decree, we don't want to do that. On the other hand, we don't want this to turn into an investigation.

COLONEL WILLIAMS: Correct, sir.

SENATOR LYNCH: Was there a -- was there then a plan discussed or issues discussed as to how we can fend off this initiative by the Department of Justice since we don't want to sign a consent decree, we certainly don't want them filing a complaint and we also don't want this to be called an investigation? So how do we fend that off?

COLONEL WILLIAMS: Well to the best of my recollection, we wanted the Justice Department to explain to us on a understandable basis how you have one part of the Justice Department, the DEA, the Office of Highway Traffic Safety, et cetera, et cetera, the other federal law enforcement agencies stressing that we should be very active in the eradication of drugs and other criminal activity, and on the other hand we have the Justice Department saying no, what you're doing is wrong. This was a, I guess for want of a better word, tell us what you want us to do. What do you want us to do as law enforcement and we'll do it?

SENATOR LYNCH: I understand the dilemma with regard to maybe some mixed signals you get from the -- from the --

COLONEL WILLIAMS: A lot of mixed signals, sir.

SENATOR LYNCH: -- Department of Justice.

COLONEL WILLIAMS: Not just some.

SENATOR LYNCH: I understand that. But obviously Maryland had the same dilemma?

COLONEL WILLIAMS: Yes, sir.

SENATOR LYNCH: And did you embark on a plan then at that meeting to articulate all this to the Department of Justice to show you how the dilemma arrives and maybe -- arises and maybe therefore you have some justification what's going on here, particularly with your consent to search statistics?

COLONEL WILLIAMS: That was my -- my impression that that was going to be one of the roads that we're going to go down.

SENATOR LYNCH: Who left you with that impression?

COLONEL WILLIAMS: Well at the meeting, you know.

SENATOR LYNCH: Did you hear any --

COLONEL WILLIAMS: I think it was agreed upon by everybody at the meeting.

SENATOR LYNCH: At any time in 1997 or 1998, did you -- did you hear a discussion or hear of any effort to utilize the services, for lack of a better term, of anyone outside of the Attorney General's Office to try to help ward off this inquiry at the Department of Justice from becoming an investigation or leading to the filing of a complaint?

COLONEL WILLIAMS: When you say outside the Attorney General's Office?

SENATOR LYNCH: Someone who was not a member of the Attorney General's Office or any one of its divisions being utilized to try to help ward off this being converted into an investigation or into a complaint?

COLONEL WILLIAMS: Well, you know, I know that the Attorney General had mentioned about going down and talking to Janet Reno.

SENATOR LYNCH: But other than the Attorney General or someone within the Department of Law, were you aware that anyone else was attempting to be helpful in that regard?

COLONEL WILLIAMS: Not that I can recall, sir.

(Pause)

SENATOR LYNCH: Do you have a conscious recollection of why SOPF 3 was not changed until near the end of 1998 after the shooting to require race on the patrol charts?

COLONEL WILLIAMS: No, sir.

SENATOR LYNCH: To the best of your knowledge, this was over two years since it was first recommended before it was implement?

COLONEL WILLIAMS: Yes, sir.

SENATOR LYNCH: Was there any -- were you aware of any conscious effort to delay that being a requirement on the patrol charts?

COLONEL WILLIAMS: No, sir.

SENATOR LYNCH: Were you under any pressure from the Attorney General's Office during that two-year period to have it carried out, to make sure that it would be on the charts?

COLONEL WILLIAMS: Not that I recall, sir.

SENATOR LYNCH: Thank you, sir.

COLONEL WILLIAMS: Yes, sir.



SENATOR FURNARI: Thank you, Colonel. SOPF 3, what does that mean? What's SOP mean?

COLONEL WILLIAMS: Standing operating procedure.

SENATOR FURNARI: And these -- this is a matter in which troopers are directed to do certain things?

COLONEL WILLIAMS: In other words, it's several volumes of -- of documents. It starts from how the organization is organized, not to double talk, all the way out to how you do an -- you know, fill out an investigation report, where reports go, et cetera, et cetera, what the troopers --

SENATOR FURNARI: So these are the general rules and regulations of the organization?

COLONEL WILLIAMS: Rules and regulations, yes, sir.

SENATOR FURNARI: And officers -- troopers are required --

COLONEL WILLIAMS: In fact -- excuse me, it's not -- but it's not a -- specifically with regard -- you said rules and regulations. We also have a rules and regulations with regards to your conduct. That's a separate document.

SENATOR FURNARI: Okay. So that the -- these rules -- could you distinguish between the two for me, just so I understand that?

COLONEL WILLIAMS: Well the SOPs are like I say, how the organization is structured, the troops, et cetera, et cetera, what each Major is responsible -- what each Lieutenant Colonel is responsible for, each Major's responsible for, the authority for the section, what the sections do, what the units do, what the bureaus do, how the organization operates, et cetera, et cetera. The rules and regulations are, you know, if you don't come to work, you don't fill out your reports correctly, you get in trouble, you know, however that may be, a problem at home, you know, get in a bar fight or something like that, that's covered under rules and regulations.

SENATOR FURNARI: Okay. So if you -- so failing to -- let's see if I understand this. If you fail to adhere to SOP 3, you'd be punished under the rules and regulations?

COLONEL WILLIAMS: You'd be punished under the rules and regulations, and it would be -- in other words, the charges are -- whatever the violation would be written up with an indication made that in violation of article so and so and you did not adhere to SOP whatever it may be.

SENATOR FURNARI: Now is the Attorney General involved in either the rules and regulations or the SOPs?

COLONEL WILLIAMS: Yes, sir. The Attorney General always looks at our SOPs before they go out. The Planning Bureau would do the rules and regulations and they go downtown and they'd be checked out with the -- with the Attorney General's Office. The rules and regulations, the last time they were changed might have been, geez, maybe back in the -- and I'm guessing, okay, but I think in the early '80s and they were taken down to the Attorney General's Office and, you know, at that time I think it was the Legal Affairs Unit and they went over it and, you know, crossed the Ts, dotted the Is, this isn't good, that isn't good, take this out, leave that in, et cetera, et cetera.

SENATOR FURNARI: Now not adhering or not following those rules and regulations could give rise to disciplinary action, that's correct?

COLONEL WILLIAMS: That is correct.

SENATOR FURNARI: And in a rare case, I guess, it can give rise to even a criminal indictment?

COLONEL WILLIAMS: Well the criminal indictment would be strictly -- that would be something else. In other words, the State Police would not -- would not be -- and don't let -- let me explain, when I say not part, in other words we wouldn't -- we wouldn't be the -- you know, it would either be the Attorney General's Office who would put up the indictment and/or a County Prosecutor's Office, you know, maybe with the State Police investigation or something like that. You know, we wouldn't -- we wouldn't be involved in it as with a court martial or something like that where we would -- we would be the -- we would be the authority.

SENATOR FURNARI: Well periodically over the 35 years you've been in the Department, have many officers ended up indictment for failing to properly keep their records, falsification of documents?

COLONEL WILLIAMS: I don't -- and again, I can't recall all the way back to 1921, but I don't recall that being --

SENATOR FURNARI: Of anyone ever?

COLONEL WILLIAMS: Well, again, I can't -- I can't answer your question because I can't go back to 1921. I came in the State Police in 1964. So --

SENATOR FURNARI: Okay. Since 1964?

COLONEL WILLIAMS: I can't -- I don't recall that being a frequent happening, let's put it that way. I'm not saying it didn't happen, but it's not a frequent happening.

SENATOR FURNARI: Now wouldn't -- it seems to me that if my failure to properly keep my records ever rises to the level of being something that there'd be a criminal Grand Jury or indictment, it would seem to me that this would be something that the AG's Office would work closely together with the State Police on?

COLONEL WILLIAMS: Yes.

SENATOR LYNCH: Does it make sense? I mean it seems to make sense to me that if you find out that somebody has been so egregious in not filling out their documents or for example not following SOPF 3, that before there'd be an indictment, there'd be some consultation with the State Police to see what they've been doing in the past, right?

COLONEL WILLIAMS: Yes, sir.

SENATOR LYNCH: Okay. That's really all I have. Thank you.

COLONEL WILLIAMS: Thank you. Yes, sir.

SENATOR ROBERTSON: Senator Zane?

SENATOR ZANE: Colonel, two questions, I think, regarding consent to search. Your first -- your thoughts on consent to search as a law enforcement tool bearing in mind what has happened here in New Jersey?

COLONEL WILLIAMS: You want my opinion?

SENATOR ZANE: Yes.

COLONEL WILLIAMS: Okay. I think the consent to search is a good law enforcement tool. I think that, you know, we have to monitor it and make sure that it's being used in the -- for the reasons that it was initiated, you know, to not only help the trooper on the road, to a -- you know, with all the different court decisions that have come down, to show that the individual that's being searched did so willingly and knowledgeably. But it also on the hand it protects the individual that's being searched by allowing them to be aware of what the ramifications might be if in fact there is contraband of some type in that vehicle or where -- you know, I mean you can use a consent to search in a house. It doesn't have to be a vehicle. It can be, you know, a business or something like that. So it protects I think both sides of the -- not only law enforcement, but the community in general.

SENATOR ZANE: Colonel, last question. Let's stay strictly with a vehicle, what effect do you think consent to search has on the issue of racial profiling? Forget the law enforcement tool, what effect do you think it has? Do you think it's a major contributor? Do you think it's something that from -- just looking at it from the civil rights standpoint, is it something we maybe shouldn't have? Your thoughts?

COLONEL WILLIAMS: I don't -- I don't think it's something that they shouldn't have. I don't think it has -- I don't -- you know, this is my personal opinion, I don't think the consent to search has a race to it. It's a piece of paper.

SENATOR ZANE: But in -- last question. But in light of what we have seen, are there other things that you should -- you feel possibly should be done to protect people's civil rights? Because obviously -- I mean it looks pretty clear to me that they're being violated.

COLONEL WILLIAMS: Well --

SENATOR ZANE: And if you don't think so I understand.

COLONEL WILLIAMS: I -- again, sir, I -- you know, I'll go back on my initial statement, that I think it's a document that protects both the police officer and the -- and the individual who is being searched.

SENATOR ZANE: Thank you.

SENATOR ROBERTSON: Senator Girgenti?

SENATOR GIRGENTI: Thank you. Colonel, just a couple questions. I know the hour is getting late. One thing that I was interested in, the Trooper of the Year Program --

COLONEL WILLIAMS: Yes, sir.

SENATOR GIRGENTI: -- could you go into that a little bit in terms of explaining it. What was the criteria for receiving -- becoming the Trooper of the Year?

COLONEL WILLIAMS: Well the criteria was that -- and can I explain how the Trooper of the Year worked--

SENATOR GIRGENTI: Sure.

COLONEL WILLIAMS: -- before I --

SENATOR GIRGENTI: No, go ahead.

COLONEL WILLIAMS: You know, there would come a time where it'd be that time of year to begin a search for the Trooper of the Year. It would be incumbent upon the various troops and bureaus to initiate a recommendation through the chain of command for a individual, be it one trooper or two troopers who might have done an outstanding job or did something that, you know, that merits a recognition above the -- above the norm. A Trooper of the Year recommendations then would go to the -- to a advisory board or a board of captains that we had in the State Police and they would -- they would review the recommendations from the various bureaus, sections, and they then would make that recommendation and forward it through the chain,

ultimately during my period of time to meet. And then I would make a -- I would look at the candidates and not only would I look at what they -- what they did as far as the -- that particular incident or incidents that they are being recommended for, but I would also look towards their -- their involvement, in the State Police, you know, what type of -- what type of person they were and their enthusiasm, et cetera, et cetera.

SENATOR GIRGENTI: All right. Again, the criteria in terms of selection now, there is a selection Committee that --

COLONEL WILLIAMS: Yes, sir.

SENATOR GIRGENTI: And it came up through that and you would make the final determination?

COLONEL WILLIAMS: That is correct sir.

SENATOR GIRGENTI: All right, and reading through in the back -- the background now, was this started under you? Or was this there before you?

COLONEL WILLIAMS: No. No, sir this --

SENATOR GIRGENTI: Did it for a long time? Because if it --

COLONEL WILLIAMS: I think he -- and again don't hold me to this, but I think the -- the first troop of the year might have been back in the -- maybe 1960's, late sixties. I think you know, I was a young trooper on the Turnpike at the time, I -- I think that's when it was started, under -- I think it was -- I think it was Colonel Kelly, who started the Trooper of the Year.

SENATOR GIRGENTI: All right, so criteria would be in certain cases drug arrests? Aggressiveness -- you know what would be, would that be part of what went into it, were they looking for --

COLONEL WILLIAMS: Oh, it's -- again it

SENATOR GIRGENTI: -- numbers?

COLONEL WILLIAMS: -- you'd look at that, you know there was Trooper of the Year, and we're Detectives, you know who did outstanding jobs maybe in -- in arson investigation, stolen cars, or something like that. The -- there were Troopers of the Year that for -- organized crime.

SENATOR GIRGENTI: Okay, but there -- pardon me, during your tenure, during your tenure was there not a change in it, or because of the emphasis was -- I think there was an incident that occurred, one of the honorees or one of the persons that were going to be honored, it was switched at the end because of problems that you found in the guy's background, in his record? Is that the case?

COLONEL WILLIAMS: I think that might have happened at one time with this.

SENATOR GIRGENTI: And would you attribute and this is no -- you know I know you came into this, it's been there for a long time, would you attribute that to the looking for this aggressiveness, a mind set that said you -- you know numbers are the answer, the more numbers we get, the better the trooper may be?

And in this case, it would lead to that type of atmosphere, that you would be very aggressive in terms to become the Trooper of the year, that's one of the things you would have to do?

COLONEL WILLIAMS: Well one of the things that you would have to do is be a -- be an aggressive trooper, now again that doesn't mean that you -- you know -- I take being aggressive means doing your job, the job that you're paid for by the citizens of New Jersey.

And you know going out and -- and giving a full day's work.

SENATOR GIRGENTI: But could that set the mind set to you know above all the numbers are most important?

COLONEL WILLIAMS: It could sir, and --

SENATOR GIRGENTI: And --

COLONEL WILLIAMS: -- I can't -- I can't speak for everybody's mind set, but it -- there's that possibility, yes sir.

SENATOR GIRGENTI: And do you believe that that may have happened in some cases, especially the one that you spoke, that I talked -- I mentioned earlier that --

COLONEL WILLIAMS: There's a -- there's a possibility sir, yes, sir.

SENATOR GIRGENTI: And has that program now changed? The emphasis while you were there, did they change the emphasis on it?

COLONEL WILLIAMS: Well, again I -- you know, I'm the person who picked the Troop of the Year, and I tried to -- I tried to do it -- a total overview that -- it wasn't just for being aggressive, making arrests, it -- you know there were other -- other indicators, or other areas that the -- the trooper was outstanding in, involved in the community, et cetera, et cetera.

And what's happening now I can't answer your question, sir.

SENATOR GIRGENTI: All right, during the Soto case, it came to light that some State Police training materials, contained theories or at least references that are -- correlations between ethnicities as you mentioned before, and certain violations, are you familiar with such -- there was training manuals and I understand that were sent out from the -- even from Washington, was that something that you had to deal with, or was that prior to your -- your tenure as the Superintendent?

COLONEL WILLIAMS: Well that -- that was -- that was prior to my being the Superintendent sir, but I was -- I mean I was -- I was aware of it that was part of the training from -- as you say the DEA, and other Federal agencies, that -- that's what they provided us.

SENATOR GIRGENTI: And that was all part of this drug interdiction, emphasis on operation --

COLONEL WILLIAMS: Pipeline.

SENATOR GIRGENTI: -- you said operation pipeline?

COLONEL WILLIAMS: Roadside. Whatever.

SENATOR GIRGENTI: And -- and the -- up until your -- obviously you can't speak for today, but at the end of your tenure there, was any of that materials still used or that was no longer part of any training program within the State Police?

COLONEL WILLIAMS: It was not used sir. When -- and when --

SENATOR GIRGENTI: And --

COLONEL WILLIAMS: -- I say not used, I'm talking about what you had -- which you had mentioned, absolutely not.

SENATOR GIRGENTI: When -- when was that -- when was that disbanded or eliminated in terms of the -- it was prior to your becoming the Superintendent as we said before?

COLONEL WILLIAMS: I think so sir, yes.

SENATOR GIRGENTI: Like the early nineties, or --

COLONEL WILLIAMS: Yes, sir.

SENATOR GIRGENTI: Okay and -- I guess the answer is obvious that why -- why did they cease to use those materials, because of the very problems that we're talking about?

COLONEL WILLIAMS: Certainly.

SENATOR GIRGENTI: And this was part of the training programs, that --

COLONEL WILLIAMS: Certainly.

SENATOR GIRGENTI: -- that were put forth? And all right, now -- because that -- that was something that I know I had read, and it stuck with me for a long time, that this was really again there was a mind set, from the training, even the -- the idea of encouraging awards as I spoke to before?

COLONEL WILLIAMS: Yes, sir.

SENATOR GIRGENTI: And that could tend to become a serious problem, and I think that you had to deal with it to some extent, because of that.

COLONEL WILLIAMS: It has to be monitored sir.

SENATOR GIRGENTI: And -- you and I think that -- that could be part of the reason why the numbers were -- like they were in terms of the -- you know -- and that's unfortunate and -- I just know that -- I'm glad that that has been changed.

And that no longer would be part of any kind of training, would not be -- it should not be that way, and it should not be the reason for someone getting an award for trooper of the year, as you said, there should be other criteria than -- aggressiveness in terms of just forget about what you're doing, just get the numbers. I think that's a problem.

Thank you.

COLONEL WILLIAMS: Yes, sir.

SENATOR GORMLEY: Thank you Colonel for your testimony.

COLONEL WILLIAMS: Thank you sir.

SENATOR GORMLEY: The next witness will be Lieutenant Albert Sacchetti.

(Pause)

SENATOR GORMLEY: Would you please stand. Raise your right hand.

LIEUTENANT ALBERT SACCHETTI, WITNESS, SWORN

SENATOR GORMLEY: Have a seat. Mr. Chertoff.

MR. CHERTOFF: Lieutenant Sacchetti how long have you been with the State Police?

LIEUTENANT SACCHETTI: 27 years.

MR. CHERTOFF: And your current rank is what?

LIEUTENANT SACCHETTI: Lieutenant.

MR. CHERTOFF: Back in 1998, did there come a point in time you were assigned to do something called the Troop D audit?

LIEUTENANT SACCHETTI: Yes, sir I was.

MR. CHERTOFF: And what was that Troop D audit?

LIEUTENANT SACCHETTI: In June of 1998 I was tasked to perform an audit to determine if falsification issues directly related to race was occurring on the New Jersey Turnpike.

MR. CHERTOFF: Who ordered you to do that?

LIEUTENANT SACCHETTI: Lieutenant Colonel Robert Dunlap.

MR. CHERTOFF: And did you start doing that first at Cranbury?

LIEUTENANT SACCHETTI: Yes, sir, that is correct.

MR. CHERTOFF: And then you moved to Moorestown?

LIEUTENANT SACCHETTI: Yes, sir.

MR. CHERTOFF: And then there came a point in time in March of 1999 that it was to be expanded to Newark as well?

LIEUTENANT SACCHETTI: Yes, sir.

MR. CHERTOFF: Now, I want to be clear that the focus here was falsification, not a more general statistical analysis right?

LIEUTENANT SACCHETTI: That is correct.

MR. CHERTOFF: Am I correct that there were really going to be three phases to this audit, phase one was going to be to look for discrepancies between various documents, phase two was to follow up with interviews where there are discrepancies, and then phase three which was more complicated was to try to put together a statistical way of sampling to see whether troopers were falsifying even if you didn't have discrepancies between the documents?

LIEUTENANT SACCHETTI: Yes, sir, but if I may add, in phase three we were also doing interviews also.

MR. CHERTOFF: Now. Now, when did you get started on this?

LIEUTENANT SACCHETTI: The actual planning of this audit began in June probably about June 15th, of 1998. We actually began the actual audit July the 2nd.

MR. CHERTOFF: And -- in September did you have a meeting about the progress of the audit, upon completing Moorestown in terms of its impact on continuing the Soto appeal?

LIEUTENANT SACCHETTI: Yes, sir I did.

MR. CHERTOFF: Tell us about that?

LIEUTENANT SACCHETTI: At the time we were -- as I have originally stated, and testified to we were tasked with doing an audit of Cranbury, at the time that it originally began, I was under the impression we would stick with Cranbury.

Around the time that you had spoken of, I was informed that we would then begin a phase one and phase two audit of the Moorestown Station, to determine if there were any problems there, and that decision would be used to determine if the Soto Decision was going to be appealed.

MR. CHERTOFF: Who told you that?

LIEUTENANT SACCHETTI: Lieutenant Colonel Dunlap.

MR. CHERTOFF: And did you have a meeting about the subject, around September 11th, about the effective -- what you had -- pulled together on the -- on the Soto appeal issue?

LIEUTENANT SACCHETTI: I'm sorry sir?

MR. CHERTOFF: Did you have a meeting about the Soto appeal on September 11th?

LIEUTENANT SACCHETTI: I believe about that date sir, yes, sir.

MR. CHERTOFF: Who was at that meeting?

LIEUTENANT SACCHETTI: I would imagine Colonel Dunlap, myself, and I believe Colonel Fedorko.

MR. CHERTOFF: Can you remember what the discussion was?

LIEUTENANT SACCHETTI: No sir, just that we were going to be tasked to now begin this audit of the Moorestown Station also.

MR. CHERTOFF: Okay, and -- the purpose of the audit was going to be to see whether perhaps the Soto appeal ought to be retracted, or -- or suspended in some way?

LIEUTENANT SACCHETTI: That's what I was informed.

MR. CHERTOFF: Now, did you regularly inform Colonel Dunlap about what you were finding out in terms of discrepancies?

LIEUTENANT SACCHETTI: Colonel Dunlap and Colonel Fedorko.

MR. CHERTOFF: And did you also from time to time have meetings with people from the office of the Attorney General?

LIEUTENANT SACCHETTI: Yes sir I did.

MR. CHERTOFF: How many meetings do you remember having with representatives of the Office of the Attorney General?

LIEUTENANT SACCHETTI: I recall two.

MR. CHERTOFF: Okay, when were they?

LIEUTENANT SACCHETTI: One was October either the 27th, or the 29th of '98, and another one was February the 2nd of 1999.

MR. CHERTOFF: Okay, what was the October meeting, who was at the October meeting?

LIEUTENANT SACCHETTI: At the October meeting was Colonel Dunlap, myself I believe other representatives from Internal Affairs, and Debbie Stone, oh, and Prosecutor Jurow, and Chuck Burnell.

MR. CHERTOFF: And what was the subject of the meeting, what was discussed?

LIEUTENANT SACCHETTI: The main focus of the meeting was the shooting investigation, we had a shooting investigation and the side issue of the falsification for Hogan and Kenneth.

MR. CHERTOFF: Were you involved in that investigation as well as the falsification of Hogan and Kenneth?

LIEUTENANT SACCHETTI: Originally.

MR. CHERTOFF: But then you were taken off that and -- and assigned to Troop D?

LIEUTENANT SACCHETTI: Yes, sir.

MR. CHERTOFF: What was the discussion on that date, concerning the Troop D investigation?

LIEUTENANT SACCHETTI: Very brief, just what we had learned by that period of time, and so forth and so on. Where were we going with it.

MR. CHERTOFF: Was it your understanding that at some point as you uncovered discrepancies some of these would be referred to Internal Affairs for an administrative investigation about whether there was misconduct?

LIEUTENANT SACCHETTI: The Troop D audit?

MR. CHERTOFF: For -- for the Troop D audit?

LIEUTENANT SACCHETTI: Yes, sir.

MR. CHERTOFF: And in fact from time -- was there a point in time at which instances of discrepancies were referred to Internal Affairs, for an individualized administrative investigation?

LIEUTENANT SACCHETTI: Yes, sir.

MR. CHERTOFF: Approximately when was that?

LIEUTENANT SACCHETTI: I would say -- I would say the fall of '98, maybe the beginning of early of '99.

MR. CHERTOFF: Now you said there was a second meeting with the Office of Attorney General in February '99? Who -- how did that meeting come about?

LIEUTENANT SACCHETTI: I was informed that there would be a meeting in the AG's office. And I would attend. And also that I would provide to Mr.Zubec, a synopsis of what the Troop D had revealed at that point.

MR. CHERTOFF: And did you provide that synopsis?

LIEUTENANT SACCHETTI: Yes, sir I did.

MR. CHERTOFF: I'm going to show you what -- what's been previously marked as Z-3, I'm sorry Z-2, which is a document marked D-1 and ask you if this is a synopsis which you provided -- I'm sorry. Which is -- is this a copy of the synopsis you provided to Mr. Zubec?

LIEUTENANT SACCHETTI: Yes, sir it is.

MR. CHERTOFF: Now, parts of it are redacted in terms of the individual identities of the troopers, but you went through -- essentially identifying a series of instances of discrepancies, with respect to particular troopers, correct?

LIEUTENANT SACCHETTI: Yes, sir.

MR. CHERTOFF: Now, what did Mr. Zubec say in response to this?

LIEUTENANT SACCHETTI: He -- what I recall of his response to this, was he was satisfied with the thoroughness of this audit, and that we would continue with it.

MR. CHERTOFF: And was it understood that yo were going to continue with the audits of the locations in progress, and then also now include the Newark Barracks?

LIEUTENANT SACCHETTI: I wasn't informed of that at that time, no sir.

MR. CHERTOFF: When were you informed that?

LIEUTENANT SACCHETTI: Later on in the month.

MR. CHERTOFF: And that would be late February or early March?

LIEUTENANT SACCHETTI: We actually -- I was actually assigned the additional personnel March 8th, of 1999. So it probably was in the beginning of March.

MR. CHERTOFF: So as of -- as of March 8, 1999 you had the green light to do an audit of all three barracks, and you had approximately 30 people working for you on that audit?

LIEUTENANT SACCHETTI: Yes, sir.

MR. CHERTOFF: Now, with respect to the synopsis of Troop D, you'd given to Mr. Zubec, where you identified troopers that had significant numbers in discrepancies, do you now whether some of those had been referred for administrative investigation by IAD?

LIEUTENANT SACCHETTI: We don't use that term.

MR. CHERTOFF: What do you use?

LIEUTENANT SACCHETTI: Internal investigation.

MR. CHERTOFF: Had some of them been referred for internal investigations?

LIEUTENANT SACCHETTI: Yes, sir.

MR. CHERTOFF: And do you know whether as of the spring of 1999 some of the troopers who were under internal investigation had been referred or about to be referred to the Division of Criminal Justice to go to a criminal investigation, which is the next step?

LIEUTENANT SACCHETTI: I'm sorry?

MR. CHERTOFF: Do you know whether some of the troopers?

LIEUTENANT SACCHETTI: No, sir I do not.

MR. CHERTOFF: You don't know -- or who was referred to the Criminal?

LIEUTENANT SACCHETTI: No sir. No sir.

MR. CHERTOFF: Okay, so it's now March 8, and you've got additional personnel, you've got a mandate from Mr. Zubec to go ahead and -- and complete your work, and also cover Newark, right?

LIEUTENANT SACCHETTI: Yes, sir.

MR. CHERTOFF: And that was part of the original plan, of the Troop D audit, right?

LIEUTENANT SACCHETTI: I didn't understand it to be as such, when it first began, like I said earlier, I just understood it to be Cranbury Station.

MR. CHERTOFF: But it expanded to include --

LIEUTENANT SACCHETTI: Yes, sir.

MR. CHERTOFF: -- Moorestown and Newark?

LIEUTENANT SACCHETTI: Yes, sir.

MR. CHERTOFF: And certainly as of March you understood that to be the case?

LIEUTENANT SACCHETTI: Yes, sir.

MR. CHERTOFF: And you had 30 people to help you deal with this?

LIEUTENANT SACCHETTI: That's correct.

MR. CHERTOFF: Then what happened?

LIEUTENANT SACCHETTI: I had completed phase one and phase two, of all three stations. We were approximately half completed of Cranbury Station, and about May of 1999 the responses that we were getting for these interview processes, both phase two Newark, and also phase three Cranbury, were coming in at a rather slow pace. We were getting maybe four or five responses a day.

MR. CHERTOFF: Responses from who?

LIEUTENANT SACCHETTI: From individuals that had been stopped and identified by way of oral audit.

MR. CHERTOFF: So, what did you do next?

LIEUTENANT SACCHETTI: I went to Colonel Fedorko, Colonel Dunlap and requested guidance, as to where the future of this audit would now proceed.

Whether we would go back and complete phase three of Cranbury, or whether or not the -- the detail would be terminated.

MR. CHERTOFF: Well why did you ask him about that, why was the fact that you were having difficulty getting responses, why did that cause you to go to Colonel Dunlap and Colonel Fedorko and ask them for further guidance, why didn't you just kind of plow ahead?

LIEUTENANT SACCHETTI: Why didn't he sir?

MR. CHERTOFF: No, why didn't you plow ahead, what did you need for your guidance?

LIEUTENANT SACCHETTI: I at that time the calls were coming in like I say, at a rather slow rate, I wanted direction. Because what had happened was prior to this, we had detached all of the individuals that were doing phase three, for Cranbury and now put them onto Newark, so that we could get Newark completed.

So I had them still doing Newark, I wanted to know whether I should send them back to Cranbury, or what direction we would head.

MR. CHERTOFF: Well was there some question in your mind about whether you were going to complete this project?

LIEUTENANT SACCHETTI: Yes, sir.

MR. CHERTOFF: What caused you to have that question?

LIEUTENANT SACCHETTI: I don't know. And to be perfectly honest, I can't answer that now, I just had a feeling, that they perhaps this may be terminated.

MR. CHERTOFF: What gave you that feeling if you remember?

LIEUTENANT SACCHETTI: An interim report.

MR. CHERTOFF: Pardon?

LIEUTENANT SACCHETTI: Interim report had been published at that time, sir. And I felt that perhaps we maybe weren't going to continue along those lines where we were going.

MR. CHERTOFF: So you went to Colonel Dunlap and Colonel Fedorko, and what did they tell you?

LIEUTENANT SACCHETTI: They told me to just stand by and a decision would be made as to where we would head.

MR. CHERTOFF: And did they tell you who would make the decision?

LIEUTENANT SACCHETTI: In the Attorney General's office.

MR. CHERTOFF: And did you stand by?

LIEUTENANT SACCHETTI: Yes, sir I did.

MR. CHERTOFF: How long did you stand by?

LIEUTENANT SACCHETTI: About a month.

MR. CHERTOFF: How long did the troopers working with you stand by ?

LIEUTENANT SACCHETTI: About a month.

MR. CHERTOFF: And then what happened?

LIEUTENANT SACCHETTI: Detail was terminated.

MR. CHERTOFF: Who told you the detail was terminated?

LIEUTENANT SACCHETTI: Colonel Fedorko.

MR. CHERTOFF: And did he tell you whose decision it was?

LIEUTENANT SACCHETTI: The AG's.

MR. CHERTOFF: Did he explain why?

LIEUTENANT SACCHETTI: No sir.

MR. CHERTOFF: Now, at that point what was the status of your investigation? Of your Troop D audit?

LIEUTENANT SACCHETTI: Like I said, I had completed phase one and two, of all three stations, Cranbury was approximately -- a little better than half completed.

MR. CHERTOFF: Now, with respect to -- with respect to the work that was completed, did you write a final report?

LIEUTENANT SACCHETTI: In October of last year, 2000 I was required to submit what I had up to that point, I wouldn't term that my final report. No.

MR. CHERTOFF: So now is -- I think we lost a year in here, so I want to -- make sure I understand why.

Approximately May or June of 1999 your work is terminated, right?

LIEUTENANT SACCHETTI: Yes, sir.

MR. CHERTOFF: Okay. And at that point it's not -- you've completed phase one and two, but you're only part way into phase three, right?

LIEUTENANT SACCHETTI: Yes, sir. A little better than half.

MR. CHERTOFF: You -- you also have I believe -- if I'm correct, you've identified a number of troopers where there are discrepancies, it's not completely clear which of those are serious and which are not serious, right?

LIEUTENANT SACCHETTI: In whose estimation?

MR. CHERTOFF: In your estimation?

LIEUTENANT SACCHETTI: I think we had identified a number of troopers that had committed violations.

MR. CHERTOFF: Okay. So now let me ask you this, when this thing is terminated does anybody say to you write what you've done so far?

LIEUTENANT SACCHETTI: No sir.

MR. CHERTOFF: Did you ask whether you should write that?

LIEUTENANT SACCHETTI: Yes, sir I did.

MR. CHERTOFF: Who did you ask?

LIEUTENANT SACCHETTI: I asked both Colonel Fedorko and Colonel Dunlap.

MR. CHERTOFF: What did they tell you?

LIEUTENANT SACCHETTI: Just hold off on that.

MR. CHERTOFF: Did they tell you why?

LIEUTENANT SACCHETTI: I don't recall specifically, Colonel Fedorko's reasoning, but Colonel Dunlap's I do recall distinctly, was that it was an incomplete report, and as such there would be no need to complete it.

MR. CHERTOFF: And it was incomplete because you had been told to stop work?

LIEUTENANT SACCHETTI: Yes, sir.

MR. CHERTOFF: Okay. Now, did there come a point in time that you were told that the report should be prepared?

LIEUTENANT SACCHETTI: There came a point in time like I said, about October of 2000.

MR. CHERTOFF: And how did you come to get that instruction?

LIEUTENANT SACCHETTI: I received an e-mail from my Major at the time, Major Brennan advising me of a meeting that I would attend, with Major Brennan, Lieutenant Bill Metis from Internal Affairs, Chief Dorn from Internal Affairs, and several representatives from the Attorney General's Office.

MR. CHERTOFF: And what happened?

LIEUTENANT SACCHETTI: I was ordered then to produce what I had up to that point, for the purpose of initiating internal investigations.

MR. CHERTOFF: Now, when you say for the purpose of generating internal investigations, in other words until you submitted this report, incomplete as it was, what you had discovered was not the subject of internal investigation?

LIEUTENANT SACCHETTI: That's correct.

MR. CHERTOFF: And I'm showing you JC -- SJC-2, is this the October 26th, 2000 incomplete report that you were ordered to prepare?

LIEUTENANT SACCHETTI: Yes, sir that looks like it.

MR. CHERTOFF: And it says basically that this is an unfinished product -- project that was never completed, but you were ordered to put this together, right?

LIEUTENANT SACCHETTI: That is correct.

MR. CHERTOFF: And did anybody ever explain to you why there was a delay of about 16 months between the time you stopped work and the time you were told to produce this?

LIEUTENANT SACCHETTI: No sir.

MR. CHERTOFF: Now, I want to focus on one issue in particular, am I correct that when you finally produced this report, in last year, it was intended to be an informational guide to determine possible future disciplinary action, with respect to some of the troopers who were named?

LIEUTENANT SACCHETTI: That's correct.

MR. CHERTOFF: And so there was a period of time from about December of 1999 until October of last year, that there was information in your possession about possible disciplinary infractions, whatever merit they might have, that was essentially not being acted upon?

LIEUTENANT SACCHETTI: That's correct.

MR. CHERTOFF: Did you ever express a concern to anybody that there was an element of unfairness because you had been ordered to hold up reporting on possible disciplinary infractions for certain troopers whereas other troopers were being disciplined based on information from other sources, for their own -- for their discrepancies?

LIEUTENANT SACCHETTI: Yes, sir I did.

MR. CHERTOFF: Who did you tell that to?

LIEUTENANT SACCHETTI: I explained that several times in meetings with Colonel Fedorko, later on after Colonel Fedorko retired, also with Director Kronin, my captain at the time, Captain Roy Van Tassell, I was present at meetings at the Attorney General's Office, as a result of the interim and the final reports, I was placed on Committees to insure that the reforms were enacted, and at these meetings it was also brought up.

MR. CHERTOFF: And what would you bring up at the meetings? What would you say to the people at the meetings concerned you about the fact that you had this information but you had been told not to put it into -- not to transmit it to anybody?

LIEUTENANT SACCHETTI: That really wasn't how it was brought up, it was brought up more or less that as I've testified in my deposition, I audited 169 troopers. 159 of them had exhibited some type of administrative violation, due to the thoroughness of the audit.

And just as you characterized it, I didn't feel that it was fair, that individuals on a daily basis are receiving discipline for these types of violations and here we had these 159 individuals that we had identified that there wasn't any action being taken.

MR. CHERTOFF: Did anybody ever explain to you why it was that finally in October of 2000 a decision was made to have you take what you had, put it together and transmit it?

LIEUTENANT SACCHETTI: No sir.

MR. CHERTOFF: I don't have any further questions.

SENATOR GORMLEY: Okay, here's what we're -- here's what we're going to do. We're going to -- put a mic on. Pardon? Oh, excuse me.

We're not going to be able to finish this witness at this time.

We're going to adjourn the Committee meeting until next Tuesday, to continue the hearing, and I'd ask the members to meet with us, to go over scheduling in the rear.

SENATOR LYNCH: For benefit of Lieutenant Sacchetti is he going to be the first witness on Tuesday.

SENATOR GORMLEY: Yes. Yes.

SENATOR LYNCH: For his benefit you know --

SENATOR GORMLEY: But -- we will notify him tomorrow, but we're -- we'll work that out. Okay.

Thank you.

(Committee adjourned)

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CERTIFICATION



We, KAREN HARTMANN, BEATRICE A. CREAMER and PATRICIA C. DUPRE, the assigned transcribers, do hereby certify the foregoing transcript of proceedings on tape number 4, index number 5000 to 6441; tape number 5, index number 001 to 6500, and tape number 6, index number 001 to 1808, are prepared in full compliance with the current Transcript Format for Judicial Proceedings and is a true and accurate compressed transcript of the proceedings as recorded, and to the best of my ability.







_____________________________ Date: March 23, 2001

Karen Hartmann AOC #261

J&J COURT TRANSCRIBERS, INC.





_____________________________ Date: March 23, 2001

Beatrice A. Creamer AOC #182

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_____________________________

Patricia C. Dupre AOC #435 Date: March 23, 2001

J&J COURT TRANSCRIBERS, INC.





_____________________________ Date: March 23, 2001

PATRICIA KONTURA, AOC #234

J&J COURT TRANSCRIBERS, INC.