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 27, 2001



Time: 10:00 a.m.



MEMBERS PRESENT:



SENATOR WILLIAM L. GORMLEY, CHAIRMAN

SENATOR JAMES CAFIERO, VICE-CHAIRMAN

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

Tammy DiRisi

Karen Hartmann

Joy Brennan

J&J COURT TRANSCRIBERS, INC.

268 Evergreen Avenue

Hamilton, NJ 08619

(609)586-2311

FAX NO. (609)587-3599

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: The hearing will come to order.

Lieutenant, you've been previously sworn.

Mr. Chertoff.

MR. CHERTOFF: I think, Mr. Chairman, I was done and Ms. Glading was going to proceed.

SENATOR GORMLEY: Oh, I'm sorry.

A L B E R T S A C H E T T I, PREVIOUSLY SWORN

MS. GLADING: Good morning, Lieutenant.

LIEUTENANT SACHETTI: Good morning. How are you?

MS. GLADING: I wonder if we could just --

SENATOR GORMLEY: Hit the red button in front of you.

MS. GLADING: Hit it so that the red button is showing.

Can you recap for me -- or let me see if we have it accurate.

Your audit had three phases, is that correct?

LIEUTENANT SACHETTI: That's correct.

MS. GLADING: Now, the first phase was to see if there were obvious discrepancies in the troopers' records, is that correct?

LIEUTENANT SACHETTI: Yes.

MS. GLADING: Okay. And if those obvious discrepancies reached a certain level, the trooper would be moved to phase two, is that correct?

LIEUTENANT SACHETTI: Yes, ma'am.

MS. GLADING: Okay. And then in phase two you would try to determine what discrepancies could be explained or not, is that correct?

LIEUTENANT SACHETTI: What we did -- no. Phase two, what we did, the discrepancies that we identified we then made attempts to contact the motorists that were stopped by the trooper and identified as a discrepancy.

MS. GLADING: Okay. So you would see if there was a reason for the discrepancy or the substance of the discrepancy, if it was, in fact, really a discrepancy, right?

LIEUTENANT SACHETTI: To see if it may have some racial connotations.

MS. GLADING: Okay. And your audit from the beginning was intended to look for race-based records falsification, is that right?

LIEUTENANT SACHETTI: That's correct.

MS. GLADING: Okay. And it was not intended to look at aggregate numbers, is that correct?

LIEUTENANT SACHETTI: We, as part of our study, we did a racial composition of every trooper that we audited by individual, by squad and by station. By racial composition I mean the racial breakdown of the individuals that were stopped by these individual troopers.

MS. GLADING: Okay. And that was in the synopsis that you presented to Mr. Zoubek on February 10th, right?

LIEUTENANT SACHETTI: Yes, ma'am.

MS. GLADING: You didn't look at consent search rates, did you?

LIEUTENANT SACHETTI: No.

MS. GLADING: Okay. Now, my understanding is that Cranbury got to phase three, but the other two barracks in Troop D did not, Newark and Moorestown, is that right?

LIEUTENANT SACHETTI: That's correct.

MS. GLADING: In looking at the audit findings that -- do you need a copy of what you provided to Major Brennan in October of 2000 or do you know this?

LIEUTENANT SACHETTI: I don't know how deep you're going to get referring it.

MS. GLADING: Well, my question is, in Cranbury, from my reading of your audit, it looks as though you audited 58 troopers.

LIEUTENANT SACHETTI: Yes.

MS. GLADING: And that 17 of them you found enough discrepancies in phase one that they warranted

-- in 17 you found enough discrepancies in phase one that it warranted a phase two review, is that --

LIEUTENANT SACHETTI: For 17 troopers, correct.

MS. GLADING: And then you did phase three. Now, phase three, my understanding is, that's a random audit of every trooper, is that right?

LIEUTENANT SACHETTI: That's correct.

MS. GLADING: And is the purpose of that so that if a trooper's discrepancies are papered over well enough and you can't see it in phase one, phase three is going to pick it up because you're actually calling motorists, right?

LIEUTENANT SACHETTI: Yes. We also called motorists in phase two also, but the purpose of the randomness was just as you stated, was to if a trooper was sharp enough that these types of discrepancies were not being identified in phase one, we would at least randomly contact motorists that were stopped to see if there was a problem with any of these individual troopers.

MS. GLADING: Okay. And in phase three you would have -- you would reach a statistically-valid sample regardless, is that right?

LIEUTENANT SACHETTI: That's correct.

MS. GLADING: So you knew the number -- based on the number of stops a trooper made, you knew the number of motorists because Eco-Stat had given you those statistics. You knew the number of motorists you needed to contact to get a statistically-valid sample, right?

LIEUTENANT SACHETTI: That is correct.

MS. GLADING: Okay. If you couldn't reach a motorist, that motorist would drop off and you'd add another one so you would keep the sample valid, right?

LIEUTENANT SACHETTI: That's correct.

MS. GLADING: Okay. My understanding is, 17 troopers, you saw enough problems in phase one to warrant going to phase two and that in phase three of this random sample -- in the phase three part of the analysis, 32 troopers you found some kind of discrepancies, is that right?

LIEUTENANT SACHETTI: I don't know that that's accurate. If you have the synopsis there and that's what it indicates, I would have to agree with it.

MS. GLADING: You had indicated discrepancies with 26 troopers and then six that listed it as administrative, referred for administrative -- is that your recollection?

LIEUTENANT SACHETTI: As best I could. Like I say, if you have it there, I have to go with what you say.

MS. GLADING: Okay. Here's my question. I looked at the troopers that you found problems with in phase three and of those 32 troopers, 20 of them or 62 percent of them hadn't been picked up in phase one and had never gone to phase two.

LIEUTENANT SACHETTI: Right.

MS. GLADING: Does that sound about right to you?

LIEUTENANT SACHETTI: Yes. That's why I wanted to do phase three.

MS. GLADING: Why is that?

LIEUTENANT SACHETTI: In the event that these individuals would not have been picked up by way of us just comparing paperwork. At least we'd be able to get a better picture as to what the troopers were doing by the randomness of this audit.

MS. GLADING: Okay. So in your mind it was a way of making the audit fair?

LIEUTENANT SACHETTI: Making it accurate.

MS. GLADING: Okay. I also looked at -- of those 20 troopers that never got picked up in phase one and never went to phase two and didn't get picked up until phase three, there was one case of alleged drinking. There were 13 cases of undocumented searches. There were 15 cases of race falsification. And in fairness, some of them, a couple of them, were calling in the race of the motorist as white when the motorist was actually black. And then there were two instances of people who said that they weren't on the Turnpike at that time. Does that sound about right to you?

LIEUTENANT SACHETTI: It sounds right.

MS. GLADING: And those are all instances of records falsification that would never have been picked up if you had not gone to phase three, right?

LIEUTENANT SACHETTI: I wouldn't term all of them records falsification. I would term them as discrepancies that need to be investigated further.

MS. GLADING: Okay. Now, you never went to phase three in Newark and Moorestown.

LIEUTENANT SACHETTI: That's correct.

MS. GLADING: So we really don't know what level of records falsification was in those two barracks, right?

LIEUTENANT SACHETTI: We wouldn't know by way of a phase three audit, no.

MS. GLADING: Okay. And since 62 percent of the people who got picked up with problems in phase three had never been picked up in phase one in Cranbury, we have a good idea that most of the troopers that you would have identified in Newark and Moorestown probably also would have been picked up in phase three, right?

LIEUTENANT SACHETTI: Correct.

MS. GLADING: Did you get to phase three at all in -- did you complete phase three in Cranbury?

LIEUTENANT SACHETTI: No. We got a little bit better than half completed.

MS. GLADING: Oh, really. So we don't know what the level of falsification you would have found -- or discrepancies you would have found had you completed it.

LIEUTENANT SACHETTI: That's correct.

MS. GLADING: Okay. When you briefed Mr. Zoubek -- let's back up. You briefed Mr. Zoubek and others on the audit in December and February, is that right?

LIEUTENANT SACHETTI: No, October and February.

MS. GLADING: Okay. And who was in the meeting in October?

LIEUTENANT SACHETTI: As I recall, it was Colonel Dunlop, myself, other representatives from Internal Affairs, Debbie Stone from the Attorney General's Office, Chuck Grinnell and Jim Gerrow who was prosecuting the case.

MS. GLADING: Okay. Do you know why there were Hogan and Kenna prosecutors at your meeting?

LIEUTENANT SACHETTI: That meeting was -- that meeting was -- the main focus of that meeting was Hogan and Kenna.

MS. GLADING: Okay. Was your Troop D audit a subject of that meeting?

LIEUTENANT SACHETTI: Very briefly. It was discussed very briefly and that was it. At this October meeting.

MS. GLADING: Okay. And in the February meeting, who was in attendance there?

LIEUTENANT SACHETTI: Colonel Williams, Colonel Fedorko, Colonel Dunlop, myself, Detective Sergeant John Cuzzupe who was the lead investigator for the Hogan and Kenna falsification investigation, Mr. Zoubek and Debbie Stone.

MS. GLADING: Why was Mr. Cuzzupe there?

LIEUTENANT SACHETTI: We were discussing some of the falsification issues for the Hogan and Kenna investigation.

MS. GLADING: Okay. In your mind was the timing of your Troop D audit, was there a connection between the completion of your Troop D audit and the records falsification -- the timing of the records falsification investigation of Hogan and Kenna?

LIEUTENANT SACHETTI: I wasn't paying too much attention to what was going on over there. These were two separate investigations that were being conducted. In plain English, I had my hands full with what I was doing.

MS. GLADING: Okay. At that point you -- I wonder if we can -- can you give the witness a copy of Z-2?

Lieutenant, Mr. Zoubek testified that this is what he received from you at the February 10th meeting. Is that your recollection also?

LIEUTENANT SACHETTI: Yes, this looks like it.

MS. GLADING: And at that meeting did you brief them on the contents of this document?

LIEUTENANT SACHETTI: Yes, I did.

MS. GLADING: Did you brief them on the methodology that you were using in your audit?

LIEUTENANT SACHETTI: I did.

MS. GLADING: Did you specifically tell them that the troopers who were working for you on it were making three telephonic attempts and then a certified mail attempt?

LIEUTENANT SACHETTI: I don't know that I got into it that deep. We're talking about a meeting that was held over two years ago.

SENATOR GORMLEY: Excuse me for one second. We want to get the document available to the members.

MS. GLADING: Oh, sorry.

SENATOR ROBERTSON: I was going to say, are the documents available to us or is it in our book?

MS. GLADING: This is in your red book actually.

SENATOR ROBERTSON: All right. What is the date on it and the page number? The date and the page number?

SENATOR GORMLEY: It should be in the October 1999 time frame. It's marked as Z-2.

SENATOR ROBERTSON: That's the only marking, Z-2?

SENATOR GORMLEY: Oh, I'm sorry, February '99.

SENATOR ROBERTSON: February '99. Thank you.

MS. GLADING: In the middle of this document where you're discussing the Cranbury audit, and I'm looking at Page SP59019 or D-18. Do you see that page?

LIEUTENANT SACHETTI: Yes, ma'am, I do.

MS. GLADING: It specifically spells out that three telephonic attempts to interview the individual are made and if no contact is made, a certified mailing is then sent to that individual. Well, let me ask you this. What was your impression of the Attorney General's Office's views about the way in which you were conducing the audit and what you were finding?

LIEUTENANT SACHETTI: As I recall, my recollection indicates to me that Mr. Zoubek was very pleased with the thoroughness of this audit.

MS. GLADING: And did you feel some -- were you told that there was a need to speed up the audit at some point?

LIEUTENANT SACHETTI: I was never told there was a need to speed up the audit, no.

MS. GLADING: Okay. When you added -- in March, did there come a time when you added troopers to the detail bringing it to more than 30?

LIEUTENANT SACHETTI: Yes, ma'am.

MS. GLADING: And what was the reason for doing that?

LIEUTENANT SACHETTI: To complete the one and two -- phase one and two of the Newark station. We ended up with a total of 30. I don't believe that 30 were transferred at that time. I still had had guys that were auditing Cranbury, phase three. We then removed them from Cranbury, phase three and put them over so that we could complete Newark.

MS. GLADING: Okay. Was it ever said to you or represented to you that the progress of your audit was needed in order to make decisions concerning the Soto appeal?

LIEUTENANT SACHETTI: Yes.

MS. GLADING: What was said to you?

LIEUTENANT SACHETTI: It was said to me that prior to -- originally when the audit was first initiated, it was my impression that we would just be conducting an audit of the troopers that were stationed at Cranbury station. It later changed to Moorestown. And the reason that it was explained to me that we were moving to Moorestown was that they wanted to examine the troopers at Moorestown to see if there was a problem before any decision as to whether or not they would appeal Soto would be made.

MS. GLADING: Okay. Did it change to Moorestown or expand to include Moorestown?

LIEUTENANT SACHETTI: It expanded to include Moorestown.

MS. GLADING: Were you aware that in the motion that the State filed on March 5th to delay arguments in Soto that they cite -- that Mr. Zoubek in his certification cited the pendency of your audit as one reason for the need to delay oral arguments?

LIEUTENANT SACHETTI: I'm not aware of that, no.

MS. GLADING: Did you provide any subsequent update to Mr. Zoubek or members of the Attorney General's Office on your audit?

LIEUTENANT SACHETTI: No, until October the 5th of 2000.

MS. GLADING: Okay. So the last -- and you provided -- did you provide any written report subsequent to that February 10th --

LIEUTENANT SACHETTI: I provided on a daily basis a briefing sheet, both to my Captain, Captain Roy Van Tassel and to Lieutenant Colonel Fedorko, briefing them as to the previous days' contacts with motorists, but none specifically from me to the Attorney General's Office that I'm aware of.

MS. GLADING: Okay. And in terms of a summary of the audit's findings to date, there was no update from you --

LIEUTENANT SACHETTI: No.

MS. GLADING: -- between February 10th and April 20th of 1999?

LIEUTENANT SACHETTI: I may have submitted to Colonel Fedorko interoffice communications updating progress. Where they finally ended up, I don't know. They would be addressed to Colonel Fedorko.

MS. GLADING: Did Colonel Fedorko ever indicate to you that he was -- that he needed an update for the Attorney General's Office or for downtown prior to the release of the interim report?

LIEUTENANT SACHETTI: I believe, as you describe it now, I believe in maybe -- at the end of May or early June there was a conversation between Colonel Fedorko and myself where he did indicate that we were at that point where now we were trying to get some guidance as to where we were going to go with the audit.

MS. GLADING: Okay. But the interim report date is April 19th. There was nothing between February 10th and April 19th of that nature?

LIEUTENANT SACHETTI: That I recall, no.

MS. GLADING: Okay. Did you read the interim report when it came out?

LIEUTENANT SACHETTI: Yes, I did.

MS. GLADING: Do you remember what the second paragraph said?

LIEUTENANT SACHETTI: No.

MS. GLADING: Okay. Maybe I could read it to you rather than ask you to...

It says, "During the course of the investigation of the April 23, 1998 incident, an additional inquiry into the practices of state troopers assigned to the Moorestown and Cranbury barracks of the New Jersey State Police was initiated. That investigation was examining stops made by troopers assigned to those barracks for the first four months of 1998 and is still pending. However, some of the data collected as part of that investigation are used in this interim report."

What report? Do you know what report they're talking about there?

LIEUTENANT SACHETTI: They're talking about the interim report. If you're asking me what of my data they used, I would have no idea.

MS. GLADING: Okay. They're talking about your audit here, aren't they?

LIEUTENANT SACHETTI: The way I -- the way you've just read it, that's the way it seems to me.

MS. GLADING: Do you recall at the time reading about your audit in the interim report and a reference to it as being still pending?

LIEUTENANT SACHETTI: I'm sure when I read it I may have made note of that, but what's that, been two years now, right? So I don't recall today sitting here, no.

MS. GLADING: The reason I ask that is were you surprised in -- well, let's move forward a little bit. In mid-May you testified I think last week that you needed authorization to advance to the next phase of the audit in order to continue, is that right?

LIEUTENANT SACHETTI: That's correct.

MS. GLADING: And your troopers were running out of work to do on the audit at that point.

LIEUTENANT SACHETTI: That's correct.

MS. GLADING: Okay. With the interim report heralding the work that you were doing, in the second paragraph, just a few weeks before, were you surprised that you weren't getting answers to your request for authorization to continue the Troop D audit?

LIEUTENANT SACHETTI: I wouldn't relate it directly to that but, yes, I would characterize it as I was surprised that I wasn't getting any response as to the direction in which we would head.

MS. GLADING: Okay. And I think you testified last week that you were told by Colonel Fedorko and Colonel Dunlop at different points that the decision was in the hands of downtown in the Attorney General's Office, is that right?

LIEUTENANT SACHETTI: That's correct. That's what I was told.

MS. GLADING: And then in mid-June the -- or on June 10th the audit was shut down, right?

LIEUTENANT SACHETTI: That's correct.

MS. GLADING: And were you given a reason at the time for why it was shut down?

LIEUTENANT SACHETTI: No. It was just send the guys back, the detail was terminated.

MS. GLADING: Okay. Since most of the discrepancies you were finding were coming up in phase three, and phase three was never even completed in Cranbury -- well, my question is this. Was there any difference in the findings that you were making on February 10th in terms of the quality of the numbers of discrepancies, the types of discrepancies, the findings on February 10th when you briefed Mr. Zoubek and he seemed pleased with the progress and the findings that you had been making in May?

LIEUTENANT SACHETTI: We were still finding similar discrepancies, yes.

MS. GLADING: Okay. So there was no qualitative difference in terms of the discrepancies you were finding that would have led to a decision to shut it down because now you weren't finding anything and then you were finding something?

LIEUTENANT SACHETTI: Our response rate was a little lower for Newark. And at the period of time you're talking about, it was coming back at a rather slow rate, but we were still finding discrepancies for those responses that were coming back. Similar, I guess, in the rate as we had found at Cranbury and Moorestown.

MS. GLADING: Mr. Zoubek in his deposition was somewhat critical of the audit and he said that he questioned that -- well, let me read it. It's on Page 262 of his deposition. He questions why -- "Lieutenant Sachetti is saying one of the reasons they weren't able to complete it is because all they were doing was sending letters out to witnesses and they didn't have work to do in the office." My question is, why wasn't a process of driving to people's houses, knocking on doors and completing that? Was that ever the methodology of this audit?

LIEUTENANT SACHETTI: Never.

MS. GLADING: Do you have any reason to believe that Mr. Zoubek would have been under a misimpression that that's what you were doing?

LIEUTENANT SACHETTI: He may have been under, and I don't want to speak for him, but just as a point of fact, for the Hogan and Kenna falsification investigation, that's what the investigators were doing. So I don't know if he was mixing the two of them together, I don't know.

MS. GLADING: Okay. As you pointed out or as you pointed out before, the interim report, the second paragraph, cites your audit. And I just want to be clear on this. You didn't provide an updated complete status report of the audit to that date anytime between February 10th and April 20th, is that right?

LIEUTENANT SACHETTI: Similar to what I'm sure you have in your possession that I generated in October of 2000, no.

MS. GLADING: Okay. So they hadn't spoken with you for two and a half months at this point. They hadn't gotten that kind of report from you for two and a half months at that point?

LIEUTENANT SACHETTI: From me, no.

MS. GLADING: Did you find any examples in your audit, without getting into cases that may still be adjudicated as internal discipline cases -- well, first of all, is it your understanding that none of the discrepancies you've identified have ever been adjudicated?

LIEUTENANT SACHETTI: That's correct. Not as of this date, no.

MS. GLADING: Did you find any discrepancies, record-keeping discrepancies, that were comparable or rose to the level of the records falsification that was alleged in the Hogan and Kenna indictment for records falsification?

LIEUTENANT SACHETTI: At my level, which is without a full-blown internal investigation, I did.

That's without benefit of any type of in-depth or further investigation I did, yes.

MS. GLADING: How many cases were there that were near or at the level?

LIEUTENANT SACHETTI: Now, this is at my estimation. I know of one that I think have some -- in my mind, have some serious concerns.

MS. GLADING: Okay. And in total you identify discrepancies in how many cases?

LIEUTENANT SACHETTI: One hundred and fifty-nine troopers out of 169 that were audited.

MS. GLADING: Okay. And at least one of those cases you think was serious enough that it potentially rose to the level of Hogan and Kenna.

LIEUTENANT SACHETTI: I have some concerns with, yes.

MS. GLADING: And did you raise those concerns with anyone?

LIEUTENANT SACHETTI: In conversation, yes. On a formal level, it was turned over for an internal investigation, so obviously others agreed with me that there were some serious concerns there.

MS. GLADING: Who did you raise those concerns with and when?

LIEUTENANT SACHETTI: My Captain, Captain Roy Van Tassel. And like I had stated, there were some agreement there also because these were turned into internal investigations. Specifically this individual.

MS. GLADING: Had you identified -- where did the discrepancies for this egregious case that you're talking about come up, was it in phases one and two or phase three?

LIEUTENANT SACHETTI: One and two.

MS. GLADING: So it came up by what date?

LIEUTENANT SACHETTI: Well, obviously prior to the initial group of ten individuals that internal investigations were initiated on them. And I believe that that may have been February of '99. I believe.

MS. GLADING: February of '99?

LIEUTENANT SACHETTI: Yes.

MS. GLADING: So this is prior to when the records falsification case for Hogan and Kenna was presented to the Grand Jury which was in March, I believe, is that right?

LIEUTENANT SACHETTI: I'm not sure of the date of that. I wouldn't know.

MS. GLADING: Was it -- you're pretty sure about the date that it's February though that you identified this instance of this trooper?

LIEUTENANT SACHETTI: In my original deposition of which you were present, I believe that I testified that I think it was in February and if I testified it was February, then I'm pretty -- I'm pretty certain it was about February when those internals were originally initiated.

MS. GLADING: Okay. So it was part of phase one or two, one and two, in Cranbury, is that correct?

LIEUTENANT SACHETTI: That's correct.

MS. GLADING: And when did you complete phases one and two in Cranbury?

LIEUTENANT SACHETTI: Well, certainly by then.

MS. GLADING: By when?

LIEUTENANT SACHETTI: By February of '99. Now, we may -- by me saying completed, we may still have been receiving one or two calls periodically that still had to do with Cranbury phase two, but for all practical purposes it was pretty much completed by that time.

MS. GLADING: And that date was? I was interrupted, I'm sorry.

LIEUTENANT SACHETTI: February.

MS. GLADING: February. Was it early or late February, do you recall?

LIEUTENANT SACHETTI: Early.

MS. GLADING: Early February.

LIEUTENANT SACHETTI: Yes.

MS. GLADING: Okay. Do you know if the case for that trooper was ever presented to a Grand Jury?

LIEUTENANT SACHETTI: That I do not know.

MS. GLADING: Were you ever called to testify before a Grand Jury?

LIEUTENANT SACHETTI: No.

MS. GLADING: There were ten cases, weren't there, that were sent down to Criminal Justice for possible -- for review and possible criminal action, right?

LIEUTENANT SACHETTI: The total number may be 11. I believe it started off as eight and a few others as things went along were identified with other types of problems. I believe a couple of them were supervisors that we identified, so they were sent down also. They had internal investigations initiated against them also.

MS. GLADING: Okay. And those ten or 11 cases don't include Hogan and Kenna, right?

LIEUTENANT SACHETTI: That's correct.

MS. GLADING: Can you explain why your audit covered the period of January 1, '98 through April 23rd, I believe it was?

LIEUTENANT SACHETTI: That's correct.

MS. GLADING: Why was that cutoff date chosen?

LIEUTENANT SACHETTI: I wanted to get a most recent picture of what the troops out on the Turnpike were doing, so I chose a four-month period. I figured that would encompass just about everything that I needed to look at. I would be able to get a picture, in my estimation, by looking at what a trooper was doing for about a four-month period, and I chose those months.

MS. GLADING: Why didn't you pick the end of April though?

LIEUTENANT SACHETTI: The date of the shooting was April 23rd.

MS. GLADING: So was there some correlation between your work and the shooting investigation in your mind?

LIEUTENANT SACHETTI: I'm sure it was initiated as a result of the shooting investigation, yes.

MS. GLADING: Was there any need to provide an exact contrast between the activities of Troopers Hogan and Kenna and the activities of all the other troopers in Cranbury?

LIEUTENANT SACHETTI: I never heard that, no.

MS. GLADING: Just to back up. On the issue of this one egregious case that you identified that rose to the level of falsification potentially that was identified for Troopers Hogan and Kenna, you said it took place during phase one and two of Cranbury, is that right?

LIEUTENANT SACHETTI: That's correct.

MS. GLADING: Phase three in Cranbury started in December of '98 and I'm wondering if that refreshes your recollection as to when you would have identified the problems with this trooper?

LIEUTENANT SACHETTI: There may have been one or -- you know, of several. I can't say specifically now when they came up. They would have been in the boxes of documents with the actual dates, but sitting here right now, I can't testify as to when they came up. I know that a phase three was done on him, only because everyone who had an internal investigation initiated against them also had a phase three audit.

MS. GLADING: Okay. You said everyone who had an internal investigation had a phase three?

LIEUTENANT SACHETTI: That's correct.

MS. GLADING: Were there internals done on troopers in Newark and Moorestown?

LIEUTENANT SACHETTI: Moorestown, yes. Newark are presently being conducted right now.

MS. GLADING: Did you do phase three on everyone for whom you did internals?

LIEUTENANT SACHETTI: I didn't but investigators that were assigned to the Internal Affairs Investigation Bureau did.

MS. GLADING: Was that done in the course of the Troop D audit or subsequently?

LIEUTENANT SACHETTI: No, subsequently. That was done as part of the internal investigation.

MS. GLADING: Okay. Can you explain why you provided a report on an audit that was shut down on June 10th, 1999, why you did not provide a report on that audit until October of 2000?

LIEUTENANT SACHETTI: Could I -- I wasn't asked to.

MS. GLADING: Did you ask to provide a report?

LIEUTENANT SACHETTI: I asked if I should.

MS. GLADING: Who did you ask?

LIEUTENANT SACHETTI: I asked Colonel Fedorko. I asked Colonel Dunlop. Myself and my Captain at the time, Captain Roy Van Tassel, had that conversation on numerous occasions. He indicated to me that he had brought this to the Third Floor's attention on numerous occasions and that no further action would be taken.

MS. GLADING: Was it explained why no further action was going to be taken?

LIEUTENANT SACHETTI: No.

MS. GLADING: And why then, what prompted your providing a report to Major Brennan in October of 2000?

LIEUTENANT SACHETTI: I was notified by Major Brennan, who was my supervisor, that I would be attending a meeting with him, several members of Internal Affairs and Mamta Patel from the Attorney General's Office and I was to be prepared to discuss the Troop D audit. This was in October of 2000.

MS. GLADING: Do you know why more than a year after you had been shut down there was suddenly new interest in it?

LIEUTENANT SACHETTI: No, I don't know why.

MS. GLADING: I want to clarify something. When you were in the middle of the audit, well in the spring of 1999, at some point did you ask Colonel Fedorko to reassign the troopers that you were working with to send them back out to their -- the stations that they had come from?

LIEUTENANT SACHETTI: A couple different times, yes.

MS. GLADING: And were you asking him that with the purpose of ending the audit?

LIEUTENANT SACHETTI: The first time I was asking because I had had individuals assigned to me from when this audit commenced and I was concerned that they may be losing out on promotions or specialists positions as a result of being detached to me and I didn't want these individuals, who had performed in an admirable fashion for me, to lose out on any type of promotional opportunities they may have. So I had asked if I could just start sending these individuals back to their original assignments.

MS. GLADING: Were you asking that with the assumption that you'd get new people in?

LIEUTENANT SACHETTI: Yes.

MS. GLADING: Okay. And the second time -- was there a second time?

LIEUTENANT SACHETTI: The second time was we had a period of I'd say better than a week where I had these 30 investigators, for lack of a better term, sitting around being unproductive. Calls were very slowly coming in. We had completed phase two of Newark and I was looking for some guidance as to where we would proceed. And after a week of having these individuals not being productive, shall we say, I made an attempt to then have them sent back to their original assignments.

MS. GLADING: Okay. Then what response did you receive to that attempt?

LIEUTENANT SACHETTI: That it would not be done.

MS. GLADING: And was a reason given?

LIEUTENANT SACHETTI: It's in the Attorney General's Office's hands and they would make the decision as to when these individuals would be sent back.

MS. GLADING: In the report that you provided to Major Brennan in October of 2000, you indicate that the -- you indicated that the audit was closed down at your recommendation or request. I'm looking for it right now. Do you recall that phrasing in there?

LIEUTENANT SACHETTI: No, I don't.

MS. GLADING: I'll get back to it in a second.

Did you -- during his testimony before the Senate Judiciary Committee in 1999, Mr. Zoubek testified about the audit that grew out of the Turnpike shooting and he testified that people -- troopers were going out of state and going door-to-door. That wasn't correct, was it?

LIEUTENANT SACHETTI: For the Hogan and Kenna investigation, they were, yes.

MS. GLADING: No, he was actually testifying about the Troop D audit that grew out of the Hogan and Kenna investigation and indicated that troopers were going door-to-door out of state. That's not correct, is it?

LIEUTENANT SACHETTI: That's not correct.

MS. GLADING: Okay.

I think that's all I've got.

Mr. Chairman, that's all I've got.

SENATOR GORMLEY: Okay. Questions from members of the Committee?

Senator Lynch.

SENATOR LYNCH: Lieutenant Sachetti, I just want it clear in my own mind. When you were first brought in to this task in early May of '98, the original instructions of what you were to do were to do an audit or you were given some latitude to determine what you should do or come up with a plan?

LIEUTENANT SACHETTI: I was given some latitude. I was given some latitude and offered my opinions as to where we should proceed, yes.

SENATOR LYNCH: And were your suggestions in terms of what phases one and two would be accepted?

LIEUTENANT SACHETTI: Yes.

SENATOR LYNCH: And was this in the context of both Hogan and Kenna as well as the Cranbury barracks as a whole?

LIEUTENANT SACHETTI: No. At the time that these conversations took place, I was already -- the Hogan and Kenna investigation had been turned over to a team of approximately 15 investigators. They were actively working on that and I was detached from that at that point.

SENATOR LYNCH: So you weren't doing anything regarding Hogan and Kenna directly?

LIEUTENANT SACHETTI: Not at that point, no, sir.

SENATOR LYNCH: Had you done any previous audits before May of '98?

LIEUTENANT SACHETTI: No, sir.

SENATOR LYNCH: And did you have any specific training in this?

LIEUTENANT SACHETTI: No, sir.

SENATOR LYNCH: And so when you determined to make recommendations back as to how this audit should be conducted, did you consult with people as to what it could consist of and what records might be available?

LIEUTENANT SACHETTI: I had -- at that point I had spent approximately 22 years as a road trooper or supervising other road troopers. It was my understanding that I was given this detail based upon my road experience.

SENATOR LYNCH: And you had an idea, of course, as to what records would be available and what might not be available?

LIEUTENANT SACHETTI: Yes, sir, I did.

SENATOR LYNCH: And those that would be available would be the call-in logs and patrol charts?

LIEUTENANT SACHETTI: Patrol charts, radio logs, summonses sheets, things along these lines. Yes, sir.

SENATOR LYNCH: And did you know that consent-to-search information was available?

LIEUTENANT SACHETTI: Yes, sir. But if I may, and I don't mean to interrupt you there, Senator, but --

SENATOR LYNCH: Feel free.

LIEUTENANT SACHETTI: -- we were specifically looking at the types of issues that we identified with Hogan and Kenna.

SENATOR LYNCH: Right. And those issues were specifically misleading information on the radio logs and patrol charts, summonses, warnings; so forth, so on?

LIEUTENANT SACHETTI: Yes, sir. We would, in the course of our audit, have occasion to view consent searches or probable cause searches when we interviewed the motorists to make sure that proper documentation was filed as a result of a search that was conducted.

SENATOR LYNCH: Yeah. So the only thing you had to do in the consent-to-search in the Troop D audit was if you discovered in your communication with the motorists that there had been a search conducted?

LIEUTENANT SACHETTI: Yes, sir.

SENATOR LYNCH: So it would be purely coincidental. It had nothing to do with the mission that you had embarked on?

LIEUTENANT SACHETTI: I'm sorry?

SENATOR LYNCH: It didn't have directly to do with the mission you embarked on, namely to --

LIEUTENANT SACHETTI: Well, we were examining everything that the troopers did for that four-month period of time --

SENATOR LYNCH: Right.

LIEUTENANT SACHETTI: -- to determine if there were any discrepancies.

SENATOR LYNCH: But you weren't going out and looking at consent-to-search documents from the beginning of the Troop D audit?

LIEUTENANT SACHETTI: No, sir.

SENATOR LYNCH: Nor did you ever as part of the Troop D audit?

LIEUTENANT SACHETTI: To do a study of them?

SENATOR LYNCH: Right.

LIEUTENANT SACHETTI: No, sir.

SENATOR LYNCH: Somewhere in -- I'm trying to get some time lines in my head established. You finished phases one and two in Cranbury, Moorestown and Newark by what date?

LIEUTENANT SACHETTI: Well, we began -- we had finished one and two of Moorestown and Cranbury by I would say February of '99. We then initiated phase one and two of Newark March 8th of '99.

SENATOR LYNCH: And how long did that take you to complete?

LIEUTENANT SACHETTI: Until May. We were May. May was when we got into this situation where I was having individuals --

SENATOR LYNCH: Right. And when did you initiate -- it appears that you initiated phase three in Cranbury from your testimony before in December of '98?

LIEUTENANT SACHETTI: Yes, sir.

SENATOR LYNCH: And why was that done in December of '98, that is the initiation of phase three?

LIEUTENANT SACHETTI: I had concerns, as I had previously testified, that there may be a possibility existing of troopers who may have not been identified by an examination of their paperwork. I wanted to make sure that we weren't missing anybody that may be engaging in some type of improper actions. That's when I made the proposal to initiate phase three.

SENATOR LYNCH: And so you asked for permission to do phase three and gave the reasons

why --

LIEUTENANT SACHETTI: Yes, sir.

SENATOR LYNCH: -- and that's when you brought in Eco-Stat?

LIEUTENANT SACHETTI: Yes, sir, that's correct.

SENATOR LYNCH: And when you were shut down in -- strike that.

When you began -- when you finished Newark phases one and two was when?

LIEUTENANT SACHETTI: We began Newark phase one and two March 8th of '99. We were for all practical purposes finished up in about May. Responses were coming in very slow, so I hesitate to say that we were completed at that point. We were still getting one, two, three responses a day.

SENATOR LYNCH: But there wasn't any active pursuit at that point?

LIEUTENANT SACHETTI: No, sir.

SENATOR LYNCH: And you were shut down from doing any further action in May?

LIEUTENANT SACHETTI: No, June 10th or 11th. I believe June 10th.

SENATOR LYNCH: Well, when were you put on hold?

LIEUTENANT SACHETTI: May.

SENATOR LYNCH: May what?

LIEUTENANT SACHETTI: Probably about May 14th.

SENATOR LYNCH: So that would have been the week following the confirmation hearings for Peter Verniero, correct?

LIEUTENANT SACHETTI: If you say so. I don't pay too much attention to that.

SENATOR LYNCH: And you were shut down June what?

LIEUTENANT SACHETTI: June 10th.

SENATOR LYNCH: Do you know when Peter Verniero was sworn in to the Supreme Court?

LIEUTENANT SACHETTI: No, sir, I don't.

SENATOR LYNCH: With the now 11 troopers you identified as having significant problems that you discovered in phase one and two of the three barracks and also I guess part of phase three in Cranbury, there were 11 troopers who you felt had significant violations and you referred to Internal Affairs?

LIEUTENANT SACHETTI: No, sir. That was a decision made by my Captain at the time, Captain Roy Van Tassel.

SENATOR LYNCH: Okay. So you had turned this information over to Van Tassel and he made the recommendation to go to Internal Affairs?

LIEUTENANT SACHETTI: Yes, sir. Yes, sir.

SENATOR LYNCH: And there was publicity back in that time frame of the first half of '99 that these ten people were being referred to the Division of Criminal Justice?

LIEUTENANT SACHETTI: Yes, sir.

SENATOR LYNCH: Do you remember that?

LIEUTENANT SACHETTI: Yes, sir, I do.

SENATOR LYNCH: Were you aware of that referral?

LIEUTENANT SACHETTI: From a conversation I had with the investigators, yes, sir, I was.

SENATOR LYNCH: And nothing was presented to a Grand Jury on them to the best of your knowledge?

LIEUTENANT SACHETTI: I have no idea, sir.

SENATOR LYNCH: Were you certainly weren't called to testify before a Grand Jury?

LIEUTENANT SACHETTI: No, sir, I was not.

SENATOR LYNCH: Now, these ten or 11 as you now describe, those people, those troopers, did any of them have rank at that time?

LIEUTENANT SACHETTI: Yes, sir. There may have been a couple of sergeants in there.

SENATOR LYNCH: And were most of them in Cranbury or were they spread evenly throughout the --

LIEUTENANT SACHETTI: No, sir, there were more in Cranbury than there were in Moorestown.

SENATOR LYNCH: And you had indicated earlier in your deposition and today that one of the reasons you went to phase three was you didn't want people falling through the cracks and who had escaped through the problems with the radio logs and patrol charts, and you wanted to make sure that there was some equity in this process, correct?

LIEUTENANT SACHETTI: Yes. I wanted it to be accurate.

SENATOR LYNCH: And you also didn't want people to be penalized for relatively minor infractions and those who may have been more culpable would have skated through phases one and two and thus be still in line for promotions and better assignments and all of those things, correct?

LIEUTENANT SACHETTI: Yes, sir.

SENATOR LYNCH: Of the 11 people that had more significant issues that ultimately were referred to Internal Affairs and then to the Division of Criminal Justice, are you aware to this date whether any of those 11 were pursued through Internal Affairs or through a court martial proceeding?

LIEUTENANT SACHETTI: As far as I know, they have never gone through a court martial system, no, sir.

SENATOR LYNCH: So they would have nothing in their jackets, their folders, their personnel folders, to indicate that they had these violations as far as you know?

LIEUTENANT SACHETTI: I think the investigations are still pending. By pending I mean they haven't gone through the whole process to adjudication.

SENATOR LYNCH: And so -- but to answer my question then, there would be nothing in their jackets to indicate that they had any infractions?

LIEUTENANT SACHETTI: That's correct.

SENATOR LYNCH: So those people could conceivably have been assigned to better detail, to more specialized detail or even promoted, correct?

LIEUTENANT SACHETTI: Not necessarily. Any time a specialist selection or promotion process is underway, they contact Internal Affairs to determine if there's anything pending of a significant nature for the individual.

SENATOR LYNCH: All right. Are you personally aware of any of those 11 people who have been reassigned to better detail or promoted?

LIEUTENANT SACHETTI: No, sir, I am not, no.

SENATOR LYNCH: Are you aware of any of those 11 who have left the service of the State Police?

LIEUTENANT SACHETTI: No, sir, I'm not.

SENATOR LYNCH: Did you have any contact in

-- I'm sorry, strike that.

When did you take on this original assignment which you were in in May of '98? What's the name of the Division or --

LIEUTENANT SACHETTI: The Inspection Unit?

SENATOR LYNCH: Right, Inspection Unit. You went there when?

LIEUTENANT SACHETTI: I went there in October of '97.

SENATOR LYNCH: Did you ever have any direct communication orally or in writing with Mr. Rover?

LIEUTENANT SACHETTI: No, sir.

SENATOR LYNCH: You've never been in his company at any time during any of your discussions?

LIEUTENANT SACHETTI: Sir, I wouldn't know him if he walked in this room.

SENATOR LYNCH: Starting back when you took this assignment on in the fall of '97, did you have any conversations with Sergeant Gilbert about his work or his audit?

LIEUTENANT SACHETTI: No, sir.

SENATOR LYNCH: Have you ever had any discussions with him about his work and his audit?

LIEUTENANT SACHETTI: Maybe in the past week or two I have, just as a result of his testifying before the Committee. But, no, sir.

SENATOR LYNCH: Never in the context of the work that you were doing in the Troop D audits?

LIEUTENANT SACHETTI: No, sir.

SENATOR LYNCH: Subsequent to your being shut down in June of 1999, were you -- did you continue to perform other audits as part of your duties?

LIEUTENANT SACHETTI: No, sir.

SENATOR LYNCH: Have you examined other audits that have occurred since June 1, 1999?

LIEUTENANT SACHETTI: I don't know -- I know that I generated a special report synopsizing several audits that were conducted prior to my transfer to the Inspection Unit. The exact date of which I'm not certain right now. I think it may have been around that time.

SENATOR LYNCH: So that was the summer of '98 as I think you previously indicated in your deposition.

LIEUTENANT SACHETTI: Like I say, I'm not certain of the time.

SENATOR LYNCH: Subsequent to June of 1999, did you do any other analysis of audits?

LIEUTENANT SACHETTI: No, sir.

SENATOR LYNCH: Have you seen any audits that were conducted since June of 1999?

LIEUTENANT SACHETTI: No, sir, I have not.

SENATOR LYNCH: So you're not aware of any consent-to-search data or stop data on the Turnpike that would have been accumulated post-June 1999?

LIEUTENANT SACHETTI: No, sir, I'm not. I'm not aware of any.

SENATOR LYNCH: Between February and -- the beginning of February and the end of April of 1999, did you have any discussions with Colonel Dunlop about his concern that the Attorney General's Office was looking to indict Carl Williams?

LIEUTENANT SACHETTI: No, sir.

SENATOR LYNCH: Have you talked to Colonel Dunlop in the last two weeks about his testimony or yours?

LIEUTENANT SACHETTI: I saw Colonel Dunlop here last week for the two days that I was here waiting to testify. We just spoke in general terms.

SENATOR LYNCH: Were you asked to review any documents or testimony by others who have testified here in the last couple of weeks?

LIEUTENANT SACHETTI: I was asked by the Division of Law to review my transcript and Director Zoubek's transcript.

SENATOR LYNCH: Did you review Director Zoubek's transcript?

LIEUTENANT SACHETTI: No, sir, I did not.

SENATOR LYNCH: Do you know what the purpose of their looking to have you review Zoubek's testimony was?

LIEUTENANT SACHETTI: At the time they asked me to review both and if there were any discrepancies between mine and his to give them a call back.

SENATOR LYNCH: But you didn't review Zoubek's testimony?

LIEUTENANT SACHETTI: I didn't review it, no.

SENATOR LYNCH: You felt it was inappropriate?

LIEUTENANT SACHETTI: I didn't have time.

SENATOR LYNCH: As part of the confirmation hearings for then Attorney General Verniero on his nomination to the Supreme Court on May 6th, 1999, the Attorney General testified on Page 8 of the May 6th hearing, and I quote. "As I indicated yesterday, the data that is used in part and cited in the April 20 report, the interim report, we actually began gathering a year ago." Did you ever look at the interim report to determine if any of your data was contained in the interim report?

LIEUTENANT SACHETTI: I recall reading the interim report and I don't believe that any of my data was in there, no.

SENATOR LYNCH: So that's not true, is it?

LIEUTENANT SACHETTI: I don't believe that any of my data -- they may have used it, I can't say one way or the other, but I don't --

SENATOR LYNCH: There's nothing in the written text of that that would indicate that they used it, however --

LIEUTENANT SACHETTI: That's correct.

SENATOR LYNCH: And then continuing on on the same page the question is: "You began gathering some data subsequent to the shooting but that data was surrounding arrests, wasn't it?"

And the answer is: "Well, no, it was data coming out of the Cranbury, Moorestown barracks. I don't know as I sit here if it was exclusively on arrests. It may have been other forms of data as well. It may have been stop-and-search data, I'm not sure."

You weren't doing stop-and-search data, were you?

LIEUTENANT SACHETTI: No, sir.

SENATOR LYNCH: And then in answer to Senator Girgenti's questions on May 5th, 1999 during the confirmation hearings at Page 203, the Attorney General said, "Well, as I, and maybe I'm being unartful, as I indicated last week and I believe earlier, that the data that was included in the report recently issued was gathered, we had begun that process almost a year ago and at that point in time, if I'm not mistaken, and I'd have to check the calendar, there was no political climate back then. That was a year ago. We had begun working in earnest in gathering information and data out of the two barracks, Cranbury and Moorestown, which ultimately allowed us to write the report on April the 20th, the interim report."

Again, I ask you, was there anything in that report that you saw that came from your Troop D audit?

LIEUTENANT SACHETTI: No, sir.

SENATOR LYNCH: Also on May the 5th, 1999, the confirmation hearings at Page 206, the Attorney General says, "We are continuing," and this is May 5th, 1999, "We are continuing to conduct audits of the various barracks. Whether that touches the exact time statistics or not, I'm not sure. I'm not doing the specific audits, but the investigations are continuing. We're now going into the second phase of that investigation and review."

Where were you in terms of this review on May the 5th, 1999?

LIEUTENANT SACHETTI: May the 5th we were still completing phase two of Newark. It was starting to slow down at that point.

SENATOR LYNCH: But you had already then completed phase one and two of Moorestown and Cranbury and you had completed more than half of phase three, Cranbury, correct?

LIEUTENANT SACHETTI: That's correct.

SENATOR LYNCH: And subsequent to this date of his testimony on May the 5th, 1999, you were put on hold and you estimated that to be a week later, ten days later, whatever it was?

LIEUTENANT SACHETTI: Yes, sir. A week, ten days. I wouldn't use the term "put on hold." The responses were coming in slow. I was looking for guidance as to where we were going to go. Whether we were going to go back and continue with phase three of Cranbury or what direction we were going to head.

SENATOR LYNCH: But at that point you had 30 plus troopers assigned to your detail and they really had nothing to do for the most part, correct?

LIEUTENANT SACHETTI: That's correct.

SENATOR LYNCH: And you had indicated this to both Fedorko and Dunlop?

LIEUTENANT SACHETTI: That's correct.

SENATOR LYNCH: And those 30 plus troopers that really had nothing to do, were they staying home or going to the gym? What were they doing?

LIEUTENANT SACHETTI: I would hope that they were finding of a State Police nature to keep themselves occupied. I would hope.

SENATOR LYNCH: But at that point in time they really weren't accountable to anyone other than you, correct?

LIEUTENANT SACHETTI: They were all over the state. I had them working out of different barracks wherever they lived. This pool of individuals came from as far south as Woodbine and as far north as Sussex. And generally it was here's what your task to do. When it's completed, bring it in. They were given a great deal of latitude as far as --

SENATOR LYNCH: Right.

LIEUTENANT SACHETTI: -- being responsible.

SENATOR LYNCH: But you were concerned about those 30 people because they were removed from their basic assignments to be under your direction and in that vein they also may be missing opportunities for promotions and other things?

LIEUTENANT SACHETTI: Yes, sir.

SENATOR LYNCH: Again, on May 5th, 1999 of then Attorney General Verniero's testimony on Page 65 in answer to Senator Matheussen's question, the Attorney General testified: "Well, the underlying data that was used to support the report we actually begun collecting a year ago, thereabouts, as a result of the Turnpike incident that occurred in April of last year."

Again I ask you, was there anything in the underlying data in the report, the interim report, that was a product of your Troop D audit?

LIEUTENANT SACHETTI: No, sir, it hadn't been produced, any final work product hadn't been produced at that point.

SENATOR LYNCH: Thank you, Lieutenant.

SENATOR GORMLEY: Senator Furnari.

SENATOR FURNARI: I just have a couple of questions that I just need to clarify for myself.

First of all, we talked about the officers or the troopers, and I'm using this word, it's probably not the term of art, but there were administrative deficiencies of the things that they did in their reports, violations of standard operating procedures of the State Police. In your experience as -- and I note that you said here today that there were people that were referred to Internal Affairs. In your experience, have there been many indictments of troopers for failing to properly fill out their reports for these administrative --

LIEUTENANT SACHETTI: No, sir.

SENATOR FURNARI: Have there ever been any that you're aware of?

LIEUTENANT SACHETTI: No, sir, I know of none.

SENATOR FURNARI: So in your experience these matters, the ones that are referred for Internal Affairs and discipline, so far as you're concerned and to your knowledge, never in the history of the State Police has a criminal indictment been sought for that kind of activity?

LIEUTENANT SACHETTI: Not to my knowledge.

SENATOR FURNARI: Okay. Now, I am a little concerned about the previous testimony of Deputy Attorney General Zoubek and his criticism of what was going on in your investigations at the previous proceedings. Do you have any idea what would lead him to believe that your unit should have started to do other things rather than just kind of sit around and wait?

LIEUTENANT SACHETTI: I wouldn't know.

SENATOR FURNARI: Well, is it standard procedure that -- I mean you're -- well, let's try this. What would you have done to complete phase three once the responses stopped coming back? What would you have done?

LIEUTENANT SACHETTI: We would have needed to identify additional motorists that needed to be contacted.

SENATOR FURNARI: Okay. Now, why would you need the authorization from someone in the Attorney General's Office to do that?

LIEUTENANT SACHETTI: Because I had detached all of the personnel that I had doing phase three at Cranbury, detached them and placed them over to do one and two of Newark. I didn't need authorization from the Office of the Attorney General to do that. I never asked for authorization from the Office of the Attorney General to do that. I asked from my command where I should go with this.

SENATOR FURNARI: Okay. And your command indicated to you that they didn't want you to do it.

LIEUTENANT SACHETTI: That the decision was not theirs.

SENATOR FURNARI: Okay. So they were telling

-- now, is that the usual course of business in the course of investigation that the Attorney General will, in your words, "make these decision," it's not the State Police decision?

LIEUTENANT SACHETTI: I've never seen it.

SENATOR FURNARI: So this is the first time that that's happened?

LIEUTENANT SACHETTI: Well, like I say, my experience at this level is very limited. Like I had testified earlier, the majority of my career was spent on the road so on the road we make our own decisions as they occur, as the incidents occur.

SENATOR FURNARI: How long were you involved in this unit prior to undertaking this investigation?

LIEUTENANT SACHETTI: I was assigned to the Staff Inspection Unit for about 18 months back in 1993 to '94 as the Assistant Staff Inspecting Officer. And I was reassigned back here October of 1997.

SENATOR FURNARI: Okay. But in your experience over that period of time, the Attorney General had not been as, shall we say, intimately involved in investigations as they became in the ones that you were involved with?

LIEUTENANT SACHETTI: As far as I know, yes, sir.

SENATOR FURNARI: Okay. Thank you. I have no other questions.

SENATOR GORMLEY: Senator Girgenti.

SENATOR GIRGENTI: Thank you, Mr. Chairman.

Good morning, Lieutenant.

LIEUTENANT SACHETTI: Good morning, sir.

SENATOR GIRGENTI: Lieutenant, just let me refresh my record here.

Who originally charged you with the conduct of the Troop D audit?

LIEUTENANT SACHETTI: I'm sorry, sir?

SENATOR GIRGENTI: Who originally charged you with the conduct of the Troop D audit? Who gave you that --

LIEUTENANT SACHETTI: Lieutenant Colonel Robert Dunlop.

SENATOR GIRGENTI: And who were you to report your findings to?

LIEUTENANT SACHETTI: I reported my findings both to my Captain and through the chain up to Colonel Fedorko and Colonel Dunlop.

SENATOR GIRGENTI: And you directly reported it to your Captain and that was --

LIEUTENANT SACHETTI: Yes, sir. He was aware of everything we were doing.

SENATOR GIRGENTI: Was it discussed at that time how frequently you would report your findings? Was there supposed to be updates? Was there a time frame or schedule?

LIEUTENANT SACHETTI: In about August of 1998 I was completing a daily briefing sheet for my Captain and it was my understanding that a copy of that went to Colonel Fedorko. So that was done on a daily basis.

SENATOR GIRGENTI: And is my recollection correct that you testified that Lieutenant Colonel Fedorko notified you that the audit was being shut down? Was he the individual that told you that?

LIEUTENANT SACHETTI: He's the one who told me that the audit was terminated and I would send these personnel back to their original assignments.

SENATOR GIRGENTI: And did he provide you with any reasoning for shutting it down at the time?

LIEUTENANT SACHETTI: No, sir, he did not.

SENATOR GIRGENTI: He just said shut down --

LIEUTENANT SACHETTI: Shut down.

SENATOR GIRGENTI: Regarding the three and three-quarter months of time span which you examined, what was your decision to use that time frame from January to April? Why was that period selected or picked?

LIEUTENANT SACHETTI: I wanted to get a most recent picture of what the troopers were doing right up to the date of the shooting. And I thought four months could encompass enough of what we need to look at to give us an accurate picture as to what the troops out on the Turnpike were doing.

SENATOR GIRGENTI: All right. Because I understand that the rationale for ending the time frame on April 23rd was because of the shooting. Was there a reason for beginning on January 1 or was that just an arbitrary decision --

LIEUTENANT SACHETTI: It was just a decision that I made. I felt that we could get, like I said, an accurate portrayal of what the troopers were doing by looking at a four-month period.

SENATOR GIRGENTI: So I mean it was your belief that any statistical evidence that one-third of a year would provide an accurate sample to understand the overall behavior of road troopers?

LIEUTENANT SACHETTI: At Cranbury if there was any falsification being done I thought I could identify it by looking at a four-month period.

SENATOR GIRGENTI: Okay. And just in closing, one other point that was mentioned by Senator Lynch previously. You said that you were asked to review your testimony and Zoubek's testimony?

LIEUTENANT SACHETTI: Yes, sir.

SENATOR GIRGENTI: Who was the person that asked you to do that?

LIEUTENANT SACHETTI: Brian Flanagan and Allison Accurso.

SENATOR GIRGENTI: Who were they?

LIEUTENANT SACHETTI: From Division of Law.

SENATOR GIRGENTI: And your response is you would not do it?

LIEUTENANT SACHETTI: My response was if I get the opportunity, I'll do it. I am tasked with running an Inspection Bureau. I have a number of individuals that work for me on a daily basis, I didn't have the time to do that.

SENATOR LYNCH: Well, you said earlier you did feel that was inappropriate.

LIEUTENANT SACHETTI: That was Senator Lynch's characterization.

SENATOR GIRGENTI: Would you characterize it that way?

LIEUTENANT SACHETTI: I may.

SENATOR GIRGENTI: Thank you very much.

SENATOR GORMLEY: Just two questions. Jo.

MS. GLADING: Lieutenant, I just want to clarify the record because I mischaracterized something before. I said that the decision was made by you to shut down the audit but, in fact, there's a reference in what you filed in October indicating that the decision -- on June 9th a decision was made by Fedorko, Acting Superintendent, to discontinue the audit and return personnel. There was testimony last week by Colonel Fedorko, and I'm just trying to understand this, last week by Colonel Fedorko and by Colonel Dunlop that the decision was made by the AG's Office, is that correct?

LIEUTENANT SACHETTI: Well, Colonel Fedorko is in my chain-of-command so that's who I took my order from.

MS. GLADING: Okay. So you got the order from Colonel Fedorko --

LIEUTENANT SACHETTI: Yes.

MS. GLADING: -- but not -- the decision was not necessarily made by Colonel Fedorko?

LIEUTENANT SACHETTI: I don't know who made the decision. As I've testified, Colonel Fedorko gave me the order.

MS. GLADING: Okay. And just quickly. On the Soto appeal when you had an understanding that the decision of -- that your audit would have an effect on the proceedings in Soto, on the Soto appeal, when did you hear that? Would that have been February?

LIEUTENANT SACHETTI: No. No, that would have been much -- that would have been prior to initiating the Moorestown audit.

MS. GLADING: Okay. So when was that?

LIEUTENANT SACHETTI: I think in the fall.

MS. GLADING: Okay. And the interim report was still -- the reference to your audit -- here is my question. On March 5th when the State sought to delay the appeal date, the Appellate arguments in Soto --

LIEUTENANT SACHETTI: I'm sorry, what was the date?

MS. GLADING: On March 5th, 1999 when the State sought to delay the Appellate arguments in Soto and used your audit as one of the justifications for it, you had not provided them any updates since February 10th. And, in fact, you didn't provide them any update up until April 20th when the Soto appeal was actually dropped, is that right?

LIEUTENANT SACHETTI: I didn't specifically, but I'm not privy to what may have been provided by Colonel Fedorko or Colonel Dunlop.

MS. GLADING: Okay. But in terms of the synopsis of -- the overall status of the audit --

LIEUTENANT SACHETTI: For the 169 troopers, no, nothing would have been provided at that point.

MS. GLADING: And February 10th was the last synopsis of the overall audit that they had, is that right?

LIEUTENANT SACHETTI: That's correct.

MS. GLADING: Okay. So apparently they were able to make the decision about dropping Soto without your audit?

LIEUTENANT SACHETTI: I don't know.

MS. GLADING: And then the interim report reference in the second paragraph to your audit being still pending, in a sense it's still pending now, isn't it?

LIEUTENANT SACHETTI: It's -- yes. There's internal investigations that are presently being conducted for those troopers that have been identified.

MS. GLADING: In the page of your report that we received, we're missing page -- we're apparently missing a page and it's trooper number 34. Is there anything about trooper number 34 that stands out -- well, actually the missing page encompasses part of trooper 33 and part of trooper 34. If I showed you these pages, would you tell me if you think there's anything that we're missing that ought to be here?

LIEUTENANT SACHETTI: I don't know who trooper 34 is, ma'am.

MS. GLADING: It doesn't stand out in your mind as an important case?

LIEUTENANT SACHETTI: No. I haven't visited this report for two years so I wouldn't really know. Other than providing it back in October, I haven't reviewed it for two years.

MS. GLADING: Do you see how those pages don't match up?

LIEUTENANT SACHETTI: Yes. Yes. I would have no idea. I have no explanation for that.

MS. GLADING: Do you have any -- is it the trooper that was the most egregious that you had identified to your recollection or is it a trooper that doesn't stand out in your mind?

LIEUTENANT SACHETTI: I can't answer that. I have to look at the original report to determine that.

MS. GLADING: Okay. Maybe we can get a complete copy of that audit report from you. We'll make a request through the Attorney General's Office.

LIEUTENANT SACHETTI: Certainly.

MS. GLADING: Thank you.

SENATOR GORMLEY: Okay. Thank you.

Senator Zane.

SENATOR ZANE: Lieutenant, just a couple of questions.

You were asked some questions by both Senators Girgenti and Lynch about reviewing certain documents prior to testifying here?

LIEUTENANT SACHETTI: Yes, sir.

SENATOR ZANE: Okay. And the documents that you were asked to review were what again?

LIEUTENANT SACHETTI: Transcripts of my deposition and Director Zoubek's deposition.

SENATOR ZANE: Okay. Could you tell us -- you indicated that that request was made of you a couple weeks ago?

LIEUTENANT SACHETTI: I would say last Friday.

SENATOR ZANE: Okay.

LIEUTENANT SACHETTI: Not this past Friday, the Friday before.

SENATOR ZANE: Ten days ago, thereabouts?

LIEUTENANT SACHETTI: Yes, sir.

SENATOR ZANE: Okay. And you mentioned the names of two people. Are they Attorney Generals?

LIEUTENANT SACHETTI: Yes, sir.

SENATOR ZANE: What were the names again?

LIEUTENANT SACHETTI: Brian Flanagan and Allison Accurso.

SENATOR ZANE: What is your connection to either of those Attorney Generals?

LIEUTENANT SACHETTI: I would imagine they're my legal representation.

SENATOR ZANE: Are they sitting here in this room today?

LIEUTENANT SACHETTI: Brian is right here and I don't see Allison, no, sir.

SENATOR ZANE: Okay. Were the circumstances of you being asked to review those documents for discrepancies --

LIEUTENANT SACHETTI: Yes, sir.

SENATOR ZANE: -- is that what you said? Okay.

Was that just in the course of some routine review with your attorney or was that a specific meeting for that purpose?

LIEUTENANT SACHETTI: I don't know the actual reason for it, sir. That's all -- the conversation I had was exactly as I had stated.

SENATOR ZANE: Who asked for the meeting?

LIEUTENANT SACHETTI: It wasn't a meeting, it was telephone calls.

SENATOR ZANE: Telephone?

Was there a follow up to find out whether you did it or not?

LIEUTENANT SACHETTI: Yes, sir.

SENATOR ZANE: And what did you tell them?

LIEUTENANT SACHETTI: That I hadn't gotten to it.

SENATOR ZANE: What did they tell you?

LIEUTENANT SACHETTI: If you get a chance, get to it.

SENATOR ZANE: Was there any other follow up to that?

LIEUTENANT SACHETTI: No, sir.

SENATOR ZANE: I may have written something down incorrectly. If I did, please help me out here. When you were talking about I think the termination of your report and your investigation and the possible restart of your investigation, you indicated in response to Ms. Glading's question, you said something about it's in the hands of the Attorney General. Do you recall saying that?

LIEUTENANT SACHETTI: Yes, sir. That was not my characterization, that was the explanation I got from both Colonel Fedorko and Colonel Dunlop.

SENATOR ZANE: Colonel Fedorko and who else?

LIEUTENANT SACHETTI: Colonel Dunlop.

SENATOR ZANE: At the same time or at different times?

LIEUTENANT SACHETTI: Probably at the same time and probably at different times.

SENATOR ZANE: So it was said to you more than once?

LIEUTENANT SACHETTI: Yes, sir.

SENATOR ZANE: So it was clear to you that -- I guess I'm asking you, was it clear to you that your investigation was terminated at the direction of the Attorney General based upon what Fedorko and Dunlop had said to you?

LIEUTENANT SACHETTI: Yes, sir.

SENATOR ZANE: Did you inquire why?

LIEUTENANT SACHETTI: No, sir.

SENATOR ZANE: They said it and that was an order and you were a good soldier and did exactly what they said, is that correct?

LIEUTENANT SACHETTI: Yes, sir.

SENATOR ZANE: Did anybody volunteer an explanation?

LIEUTENANT SACHETTI: No, sir.

SENATOR ZANE: What was the timing of those conversations, approximate, with Dunlop and Fedorko?

LIEUTENANT SACHETTI: I'm not sure of the question, sir. What do you mean by timing?

SENATOR ZANE: Yeah. Approximately when did that happen that they told you to stop? Was this in 1999?

LIEUTENANT SACHETTI: Yes, sir, '99.

SENATOR ZANE: This was the latter part of '99?

LIEUTENANT SACHETTI: Well, no, it would have been June of 1999 is when we were terminated.

SENATOR ZANE: Okay. Let me ask you this then. Who was the first one to tell you to terminate it?

LIEUTENANT SACHETTI: Colonel Fedorko.

SENATOR ZANE: Why did Dunlop then have to tell you also?

LIEUTENANT SACHETTI: Why didn't he?

SENATOR ZANE: Why did he tell you also?

You indicated they both --

LIEUTENANT SACHETTI: No, sir. I think you're misunderstanding me, sir.

SENATOR ZANE: Okay.

LIEUTENANT SACHETTI: When Colonel Fedorko told me that it was terminated, it was terminated. We had conversations prior to it being terminated as to where we were going to go with it, whether we were going to go back to Cranbury and complete phase three or the detail would be terminated. I had conversations with both Colonel Fedorko and Colonel Dunlop along these lines, and they both informed me that it was in the Attorney General's hands.

SENATOR ZANE: As to whether it would proceed or terminate?

LIEUTENANT SACHETTI: Yes, sir.

SENATOR ZANE: Okay. But then it was only -- is it true then -- I just want to complete this picture in my mind. Were they both together when they said to you that's it, it's done, stop, don't do anymore?

LIEUTENANT SACHETTI: No. I received a phone call. They may have been together, I don't know. I received a phone call from Colonel Fedorko to send these people back to their original assignments. Get the word to them that they're going back to their original assignments.

SENATOR ZANE: Were there any conversations with either Dunlop or Fedorko prior to that as to the reason why it might be terminated?

LIEUTENANT SACHETTI: No, sir. I had some feelings along those lines.

SENATOR ZANE: What were they?

LIEUTENANT SACHETTI: The response rate was a little low. With Newark we were discovering problems that we hadn't experienced with the other two stations in that people, due to the length of time from the time they were stopped, because we may now be into a period of time where now we're about a year and a half from the time in which they may have been stopped and their recollection of the events of the particular stop were a little vague, fuzzy, contradictory. And we were experiencing these types of problems with Newark.

SENATOR ZANE: Would you -- who would -- Fedorko, when he was the Superintendent, report to?

LIEUTENANT SACHETTI: I'm sorry?

SENATOR ZANE: When he was the Superintendent, Fedorko, who would he report to?

LIEUTENANT SACHETTI: I imagine the Attorney General's Office.

SENATOR ZANE: The Attorney General's Office. Do you know anybody -- I mean is there someone in particular?

LIEUTENANT SACHETTI: Oh, I have no idea. I don't -- I'm not privy to those types of -- to those types of meetings.

SENATOR ZANE: You've never seen an organizational chart that spells out who his boss is?

LIEUTENANT SACHETTI: Oh, I'm certain he reports to the Attorney General, but who he was reporting to here, I don't know.

SENATOR ZANE: Did he indicate to you by name who in the Attorney General ordered the termination of your investigation?

LIEUTENANT SACHETTI: No, sir.

SENATOR ZANE: Who would be -- I mean certainly the Attorney General sitting in the first row didn't say that to Fedorko, correct?

LIEUTENANT SACHETTI: I don't know.

SENATOR ZANE: He wouldn't have listened to them, would he, if he thought it was the appropriate thing?

LIEUTENANT SACHETTI: You'd have to ask him.

SENATOR ZANE: Okay. Would you have any sense or feel who in the Attorney General's Office would be capable of giving the Superintendent of the State Police that kind of a directive to give to you?

LIEUTENANT SACHETTI: I would imagine it would be someone high in the Attorney General's Office.

SENATOR ZANE: And high in the Attorney General's Office to you would be who?

LIEUTENANT SACHETTI: Someone of a higher rank than Colonel Fedorko.

SENATOR ZANE: And that would be?

LIEUTENANT SACHETTI: I don't know. I'm not doing too good on this test, I guess.

SENATOR ZANE: That's okay.

(Laughter)

LIEUTENANT SACHETTI: I don't know, sir.

SENATOR ZANE: Okay. Thank you.

SENATOR GORMLEY: Thank you for your testimony.

Next witness.

The next witness will be William Buckman.

Would you please stand and raise your right hand.

W I L L I A M B U C K M A N, SWORN

SENATOR GORMLEY: Be seated.

Mr. Weber.

MR. WEBER: Good morning, Mr. Buckman.

MR. BUCKMAN: Good morning.

MR. WEBER: Are you currently employed as a private practitioner in the State of New Jersey?

MR. BUCKMAN: Yes, sir.

MR. WEBER: And you were involved in the Soto case?

MR. BUCKMAN: That's correct.

MR. WEBER: In what capacity?

MR. BUCKMAN: I was one of the team of attorneys litigating Soto.

MR. WEBER: Did you represent some or all of the defendants in that case?

MR. BUCKMAN: I represented four of the defendants in that case.

MR. WEBER: And it was a consolidated case, correct?

MR. BUCKMAN: That's correct.

MR. WEBER: I'd like to -- my purpose today is to not go through the whole Soto litigation, but I'd like to bring you to some more current events and ask you to account for the Committee a phone conversation that you had on March 5th, 1999 in which you got a call from Paul Zoubek.

MR. BUCKMAN: I recall that.

MR. WEBER: Okay. Was that the conversation where Mr. Zoubek first approached you about an extension of time for the State to file its response to an amicus brief and to extend oral argument in the Soto appeal?

MR. BUCKMAN: Yes. I was actually in my car and Mr. Zoubek called me to ask for consent to continue the oral argument in Soto, the oral argument of the appeal on Soto, which was scheduled for April 28th of that year.

MR. WEBER: Did he explain to you why he was seeking an extension of time?

MR. BUCKMAN: He said that the State was just looking into or starting to look into the issue of racial profiling.

MR. WEBER: And this was after the announcement in February that there was going to be a review of the State Police, correct?

MR. BUCKMAN: From a review of the documents, I realized that there was an announcement in February. I mean from the context of that conversation, he told me that the State was essentially looking into the issue seriously at that point.

MR. WEBER: Did Mr. Zoubek say anything else to you as to why the State wanted an extension of time?

MR. BUCKMAN: Only because they were looking into it and they were going to think about where they were going with their appeal.

MR. WEBER: What was your response to his request?

MR. BUCKMAN: My response was that the appeal obviously had been pending for a long time, for three years. That Soto itself had been, at that point, had been pending for nine years. And I would have to think about it. The call was at 3:00 p.m. on a Friday afternoon. I told him that I was also part of a litigation team and I wanted to run it by a number of the other attorneys that I was working with and essentially I wanted two business hours, until Monday morning, to think it over and to get back to him.

MR. WEBER: What was Mr. Zoubek's response?

MR. BUCKMAN: His response was if I could not immediately consent at that point, they were going to file their motion with the Appellate Division anyway to seek a continuance.

MR. WEBER: Okay. Was the motion, in fact, filed before you responded to Mr. Zoubek about his request?

MR. BUCKMAN: Yes.

MR. WEBER: When was it filed?

MR. BUCKMAN: It appears from my review of the documents, it was filed that very afternoon. As a matter of fact, when I got back to my office, I was receiving calls from the media already saying what's your position on this motion that they filed?

MR. WEBER: Okay. Did ultimately you file a position with the Appellate Division on the request for the extension?

MR. BUCKMAN: Yes, sir.

MR. WEBER: And what was your position?

MR. BUCKMAN: My position when I filed one was one of opposing it.

MR. WEBER: There was then a telephonic oral argument conducted on March 16th of 1999, correct?

MR. BUCKMAN: That's correct.

MR. WEBER: Who participated in the telephonic oral argument?

MR. BUCKMAN: I participated in the telephonic argument. Mr. Zoubek -- well, let me back up a little bit. It was an argument initiated by the Appellate Division with all three Judges of the panel on the -- at one office participating. They were Judges Stern, Landau and Braithwaite. I was patched in from my office and Mr. Zoubek was -- identified himself as being present from the Attorney General's Office with Gerald Simms, who was the author of the brief in the Soto case for the Deputy for the Attorney General's Office and who had, along with Mr. Fahy, conducted the Appellate proceedings.

MR. WEBER: Okay. This was a motion filed by the State, so I take it Mr. Zoubek or somebody from the Attorney General's Office spoke first during the oral argument?

MR. BUCKMAN: Yes. It was either Judge Stern or Judge Landau. I think it was Judge Stern who asked Mr. Zoubek why he wanted the continuance.

MR. WEBER: And what was Mr. Zoubek's response?

MR. BUCKMAN: Mr. Zoubek's response was that, "Well, we are looking into this issue of racial profiling. At this point we are starting to study it and we want to see where we are going with this appeal."

MR. WEBER: Was there any response from the Judicial panel?

MR. BUCKMAN: Yes.

MR. WEBER: What was it?

MR. BUCKMAN: It was one of the Judges was quite strong in his statement. He said, "You mean to tell me that this thing has been pending all of these years and the Attorney General's Office is only looking at it now?"

MR. WEBER: What was Mr. Zoubek's response?

MR. BUCKMAN: Essentially silence. After a while, after some what seemed like at least a half a minute, said to the extent, well, we've decided to look into it.

Another -- right on the heels of that, I should point out, another Judge asked, "By the way, sir, you realize this is a criminal proceeding?" And Mr. Zoubek said, "Yes." And the other Judge said, "If you are investigating this matter, you'll understand that you have an obligation to provide your adversaries with continuing discovery."

MR. WEBER: What was Mr. Zoubek's response?

MR. BUCKMAN: He said that he understood.

MR. WEBER: Was the issue of the continuing discovery obligation discussed anymore during that oral argument?

MR. BUCKMAN: It was -- yes. I know that I brought it up. I said that certainly I would like to see any continuing discovery that the State had. We have not been -- I pointed out to the Appellate Division that we had not been provided with anything subsequent to Soto indicating that the State had seriously looked into the allegations that we had raised and indeed proven in Soto.

MR. WEBER: When you say -- let me just stop you for a second.

MR. BUCKMAN: Sure.

MR. WEBER: When you say you hadn't been provided with anything subsequent to Soto, do you mean that subsequent to the issuance of the decision in March of 1996 up until March of 1999 you had not been provided with any discovery by the State?

MR. BUCKMAN: Yeah. As a matter of fact, we hadn't been provided with anything by the State from the close of testimony in May of '95 until March of '99 -- 1999.

MR. WEBER: What else was said during the telephonic oral argument?

MR. BUCKMAN: Another Judge raised the fact that in addition to providing discovery, reminded the State of its ethical obligation, reminded Mr. Zoubek, of the State's ethical obligation not to argue on appeal a position that it knew to be factually or legally incorrect.

MR. WEBER: What was Mr. Zoubek's response?

MR. BUCKMAN: Quite frankly, I don't recall. I generally recall that he said that he was aware of that.

MR. WEBER: Was there anything else that was discussed during the telephonic oral argument on March 16th, 1999? Any other major issues other than those that you've detailed to the Committee?

MR. BUCKMAN: The major issues -- I was given an opportunity to set forth why I opposed the request for a continuation.

MR. WEBER: Just briefly, why did you oppose the request for a continuation?

MR. BUCKMAN: I opposed it because I told the Judges that I felt it was entirely political. That the Attorney General's Office was asking the Appellate Division to weigh in essentially in a political issue by continuing this long-scheduled appeal so that apparently the Attorney General could be cleared for confirmation. And that the Appellate Division should not get involved in political issues. That the issue is ready and ripe for argument and indeed the State had been fighting and denying profiling for nine years and not only the parties but the public were entitled to some resolution.

MR. WEBER: Did the State respond to that argument at all?

MR. BUCKMAN: No. Actually I recall that the State was essentially -- did not object to that argument in the sense that -- only to the sense that I think that there was a general disagreement with the fact that this was a political decision.

MR. WEBER: Now, ultimately the Appellate Division issued a decision on the extension request that day, correct?

MR. BUCKMAN: Yes, sir.

MR. WEBER: And what was the Appellate Division's decision?

MR. BUCKMAN: They denied the State's request to continue the appeal and they placed in the order language reminding the State of its ethical obligation not to argue on appeal positions that it knew to be inaccurate.

MR. WEBER: I want to direct your attention to one other area. In November of 2000 as you know, the Attorney General's Office released approximately 90,000 pages of documentation that concerned the issue of racial profiling and a public repository was set up. Have you had an opportunity to go to the public repository and take a look at any of the documents that have been produced?

MR. BUCKMAN: Yeah, I have -- I have copies of those on CD's.

MR. WEBER: This goes back to an issue that we discussed before as far as the State's discovery obligations. Did you see, during your review of the 90,000 plus pages of documentation produced in November of 2000, any documents that had not been previously produced to you in connection with the Soto litigation that had been requested by your office or by any of the other defense attorneys?

MR. BUCKMAN: Absolutely.

MR. WEBER: Were there general categories of documentation that had not been produced?

MR. BUCKMAN: Yes.

MR. WEBER: What types of documents?

MR. BUCKMAN: In particular, consent-to-search data. Certainly training materials. There's certainly the subsequent -- now, I think we have to separate this out in terms of some of the materials that were relevant during the course of Soto and some of the materials that certainly should have been provided to us as the Appellate Judge himself noted to the State, even after the close of testimony. There appears, from my review of the materials, training materials that existed during the course of Soto that were not provided to us. There was a particular handout on a drug courier profile that appears to be fairly old and speaks very specifically of profiles and does appear to me from my review of it to have been in existence before the close of testimony in Soto.

MR. WEBER: Okay. Before the close of testimony in Soto, had you requested any information about either consent-to-search data or consent-to-search data forms?

MR. BUCKMAN: Yes.

MR. WEBER: Had that documentation been provided to you during the course of Soto?

MR. BUCKMAN: No.

MR. WEBER: What was the State's response to your request?

MR. BUCKMAN: The State said that they thought it was irrelevant and they wouldn't provide it. That was their first response. Because we first requested consent-to-search data in July of 1993 before Soto even began. The State's first response was that it was not relevant and it was too burdensome to obtain.

During the course of Soto, we renewed our request for data and the Attorney General's Office, through Mr. Fahy as well as its witnesses, said that they don't know where it is housed and they didn't know how to locate it. In particular, I cross-examined I believe at that time then Lieutenant Madden fairly extensively about consent-to-search data and was told that he didn't know where to locate it.

At another occasion one of our experts, James Fyfe, talked about the fact that there appears to be consent-to-search data in existence because there was an SOP in existence at that time which had as part of it the fact that troopers when they execute a consent to search, not only have to get written consent to search but had to fill out what appeared to be a computer form, consent-to-search data forms. Now, we requested both of those items. We were denied those and we were even told that they didn't know how to begin to reconstruct those or find them.

MR. WEBER: Okay. Just so we're clear. During the pendency of the Soto litigation, the defense team had requested consent-to-search data forms and you were told either they didn't exist or that they were unable to be found and could not therefore be produced, is that correct?

MR. BUCKMAN: That's correct. Yes.

MR. WEBER: No further questions, Mr. Chairman.

MS. GLADING: Mr. Buckman, after the Appellate Division ruled in denying the State's motion to delay the Appellate arguments and the State then subsequently dismissed -- dropped its appeal in Soto, when were the actual underlying cases dismissed?

MR. BUCKMAN: August of '99.

MS. GLADING: Okay. And was there any discovery produced to you between April 20th of '99 and August of '99?

MR. BUCKMAN: No. I had even made a request for it that was not provided. I then filed a motion requesting materials and that's when the State dismissed -- finally moved to dismiss the cases in August of '99.

MS. GLADING: Okay. And you've been involved probably in this issue longer than anyone from a legal perspective in New Jersey. Do you have any thoughts about how this issue ought to be addressed by public policy-makers?

MR. BUCKMAN: I have a few.

MS. GLADING: Would you share them with us briefly?

MR. BUCKMAN: Yes, briefly. I mean my first impression is that from what I have seen occur, particularly from a review of the 90,000 pages of documents, certainly it is absolutely essential to hold individuals accountable for what occurred and apologizing and allowing profiling to flourish for so many years. But we can't lose sight of the fact that what we now know calls for deep-seated institutional change. The consent decree is only a beginning of what we must do with the State Police. I think that the consent decree, some of the structure, should be essentially kept permanent. Perhaps most importantly we have to think very seriously about allowing the State Police or the structure wherein the State Police remain within the Attorney General's Office. We have seen in this release of documents that there is a built-in conflict of interest where the Attorney General's Office at once is supposed to be supervising the State Police and at the other point defending it. And sadly we now see from all the documents that we are seeing that for some reason, sociological or whatever, that the Attorney General's Office decided essentially to defend the State Police and not further or -- and not deal with the issue of racial profiling.

In my mind, while you have credited me with knowing something about profiling for some years, another major change that needs to occur is to allow an atmosphere in the State Police where people who see things, troopers who see things that they know are inappropriate, can come forward without fear of retaliation. There still exists within the State Police this climate of fear. Where troopers fear to report profiling activities and report to their superiors or complain to their superiors the fact that even to this day profiling may be continuing.

I would -- I would suggest that there are a number of experts in the field who have studied the phenomenon of profiling nationally and in New Jersey that could help this Committee put together a reasoned response to the phenomenon of profiling. I mean although I've heard it said that New Jersey didn't invent profiling -- New Jersey might not have invented profiling, but it did hone it to a fine art. And it is particularly deep-seated in New Jersey. And there are a number of experts who have studied it in New Jersey as well as nationally. One that comes to mind is Professor David Harris from the University of Toledo Law School who has studied the phenomenon nationally. James Fyfe who testified for us in Soto. Dr. Lamberth, for that matter, are experts who can help in the area. There are a number of experts out there that could weigh in on the area -- in the area.

MS. GLADING: Thank you, Mr. Buckman.

That's all I have, Mr. Chairman.

SENATOR GORMLEY: Okay. Thank you.

Senator Furnari has one question, then Senator Lynch has a few questions.

SENATOR FURNARI: Mr. Chairman, may I ask that the request for discovery that the witness has talked about be made part of the record? I mean inasmuch as these seem to fly directly in the face of the testimony of Mr. Fahy who indicated that consent search documentation was never requested. I'd like to make that a part of the record.

SENATOR GORMLEY: Okay, fine.

MR. BUCKMAN: I brought with me a copy of

our --

SENATOR GORMLEY: And the State's response, yes.

MR. BUCKMAN: I brought a copy of our September 30th, 1993 request to then Assistant Prosecutor Brent Hopkins requesting consent-to-search data. Certainly the numerous other requests are in the record of Soto. Again, I would direct your attention to my cross-examination of Lieutenant Madden. I believe I raised the issue again with, at that time, Lieutenant Materelli and James Fyfe. One of our experts talked about consent-to-search data and the need to obtain it.

I would also point out the fact, particularly in light of Mr. Fahy's testimony, because I had the occasion while waiting to testify here to review some of it, that the issue in Soto was very well defined by the time we were done. The issue not was as much about -- was, yes, about consent-to-search data, but the real issue in Soto was the discretion, which as the Court described it, which had devolved upon the general trooper. And what we presented in Soto was from differing angles evidence that showed that the more discretion a particular trooper had, the higher the stop rate of African-Americans went. To the point where in some areas it was fully 50 percent of all stops, not just arrests.

So by the time that Soto was done, it was clear that we were looking for every bit, every piece of documentation that tracked discretionary activities. I would also point out one other thing. And that is that as early as I believe 1994, and I saw it recently in my review of the CD's, we had presented the State with Dr. Lamberth's evaluation of individual arrest rates of the troopers involved in Soto because I had heard that issue mentioned some days ago. We had presented that as part of our case. It was part of our expert reports. The State objected in Soto to a review of individual troopers's records, at which point we said well, fine, if you're stipulating that what's at stake is an agency policy, we'll move on. I was somewhat incredulous when the State then raised on appeal an objection saying that the Judge below had erred because he wouldn't let them put in evidence of individual trooper activities.

MR. WEBER: Mr. Buckman, was there a written response to your September 30, 1993 written request?

MR. BUCKMAN: That is when the State said that they thought that it was irrelevant and burdensome and I have a copy of that as well.

MR. WEBER: Okay. If you could provide the Committee with copies of those documents, I'd appreciate it.

MR. BUCKMAN: Yes. These copies are yours.

MR. WEBER: Thank you.

SENATOR GORMLEY: Senator Lynch.

SENATOR LYNCH: Yes. Mr. Buckman, can we also get all of the requests that you made either by in letter form or by motion form for the production of discovery during the whole pendency of Soto right up and through August of 1999 when it was dismissed?

MR. BUCKMAN: Yes. I can --

SENATOR LYNCH: And the responses by the State.

MR. BUCKMAN: I can provide the motions that we made. You'll have to understand that in terms of the six-month long trial of Soto there were a number of oral motions made and I simply can't guarantee that I'm going to have the time to go through the transcript --

SENATOR LYNCH: Well, what's in the record in the proceedings themselves, we'd have to cull out ourselves. I'm not holding you to that.

MR. BUCKMAN: Thanks.

SENATOR LYNCH: So as far as you're concerned, there's no question, at least in the early 1990s, that you were seeking consent-to-search data from the State?

MR. BUCKMAN: No, there's no question at all.

SENATOR LYNCH: And this business that we've been hearing testimony about that Soto was not about consent to search but it was about stop data, was simply the product of the fact that it was only the stop data that you were able to get any access to.

MR. BUCKMAN: That's correct. And even the stop data, I mean as early as -- certainly by January 1997 from my review of the CD's, the State was aware from its own study that the stop data that they then had was consistent with what we had proven in Soto. So we were never provided with that report as well.

SENATOR LYNCH: But you knew all along that the smoking gun was always the consent-to-search data?

MR. BUCKMAN: Well, we knew all along that that was an important indicator of trooper discretion.

SENATOR LYNCH: Right.

MR. BUCKMAN: And we looked for it. I mean the consent-to-search data became an issue, as you'll see in our letter, because with great fanfare the Attorney General's Office, then under Attorney General Del Tufo, as well as the State Police, then under Colonel Dintino, issued a new SOP in 1990 addressing the issues of consent to search which, among other things, promulgated this consent-to-search data form. It was right there as part of the State Police documents that they were supposed to start collecting consent-to-search data on what appeared to be a computerized form.

SENATOR LYNCH: And so for what period were you seeking the consent-to-search data?

MR. BUCKMAN: Well, we were seeking consent-to-search data from 1988 until 1991. However, there were some studies done during the course of Soto, if I recall, that opened it up somewhat and we were looking forward even into '93 and '94.

SENATOR LYNCH: And did you later during the Soto hearing ask for more updated data on consent-to-search?

MR. BUCKMAN: Well, it wasn't so much that we asked for updated data, we continually -- it is my recollection said we'd like to see this consent-to-search data. Where is it? Who knows where it is? And, of course, we now know that it was essentially in a few drawers and was easily obtainable. But we were told that it could not be -- it could not be located. I mean there were -- during Soto, particularly as we look over these CD's, there were a number of documents that we asked for and critical documents that we requested that we were told did not exist and number one, we were either able to independently prove their existence in Soto, where now we know that they did exist.

SENATOR LYNCH: Let's try to stick to the question itself if you can. You've sat here and listened to most of the testimony in these proceedings?

MR. BUCKMAN: No, I haven't.

SENATOR LYNCH: Did you listen to Mr. Rover's testimony?

MR. BUCKMAN: I listened to parts of it.

SENATOR LYNCH: Did you understand what his role was when he was brought in by First Assistant Waugh at that time?

MR. BUCKMAN: Well, I can't say that -- I understand his role from reviewing the CD's.

SENATOR LYNCH: Did you look at the underlying documents that apparently were in Waugh's possession from the time he came onboard -- or that he accumulated from the time he came onboard in the end of 1996 through the time he left in '99?

MR. BUCKMAN: I'm not sure what you're referring to. If you could ask me about what documents I reviewed. I mean --

SENATOR LYNCH: Well, information that he was communicating along to the Department of Justice.

MR. BUCKMAN: Yes.

SENATOR LYNCH: In your mind was all of that discoverable?

MR. BUCKMAN: Oh, yeah. I absolutely think that all of that material was discoverable and should have been provided to us, in particular consent-to-search data. In particular the draft of the early 1997 letter to Loretta King where they admit that the stop data, what remains is consistent essentially with Soto. And then the final draft eliminated that point. Those things in particular stuck out in my mind.

SENATOR LYNCH: If you knew that data was in the Division of Criminal Justice all along, would you have filed some motion for sanctions?

MR. BUCKMAN: Well, I certainly would have filed a motion with the Appellate Division to send the matter back to the trial level to supplement the record. I certainly would have seriously considered a motion for sanctions.

SENATOR LYNCH: At the time of the oral argument on the -- the telephonic oral argument on March the 16th, 1999, was there as part of this discussion about the politics of this, was there reference to the recent articles by the Star Ledger about their attempts to retrieve information and also of the Department of Justice inquiry or investigation and the announcement of their review team, et cetera?

MR. BUCKMAN: No, I don't think that we discussed that. At least I don't recall it.

SENATOR LYNCH: Sergeant Gilbert testified that -- I believe it was confirmed in the depositions, that the so-called blue book of documents that he had accumulated was put together and turned over on March the 15th, 1999. Have you had an opportunity to review that blue book?

MR. BUCKMAN: Yes. It was purportedly -- I've seen it on CD's and I've had the occasion to depose Sergeant Gilbert myself.

SENATOR LYNCH: Was everything in that blue book discoverable?

MR. BUCKMAN: I certainly believe so. I think it was directly relevant to the issues in Soto.

One, you have a memo from the point person looking into the issue of racial profiling that says I've looked over the data and they do not look good. Certainly that is directly relevant, I think, from the standpoint of Brady v. Maryland, from our own discovery rules in this state and ethically.

SENATOR LYNCH: And that was as early as 1996?

MR. BUCKMAN: That's correct.

SENATOR LYNCH: No further questions.

SENATOR GORMLEY: Okay. Scott.

MR. WEBER: Mr. Buckman, just one follow-up question.

The December 30th, 1993 letter that you sent to Brent Hopkins, he was an Assistant County Prosecutor in Gloucester County, correct?

MR. BUCKMAN: That's correct.

MR. WEBER: Did you make similar requests to any representatives from the Attorney General's Office, Mr. Fahy, or anyone else requesting consent-to-search form data?

MR. BUCKMAN: I am certain that during the course of Soto we renewed on the record our request for consent to search. Certainly, if I didn't specifically ask Mr. Fahy, it was an issue, it was the central issue or was part of the central issue of the case. I do not recall how many times and on what occasions I asked for consent-to-search data. I do know that I consistently cross-examined State witnesses on consent-to-search data and the review of it.

MR. WEBER: And Mr. Fahy was present when you were cross-examining those witnesses, correct?

MR. BUCKMAN: Oh, Mr. Fahy -- yeah. Mr. Fahy was lead counsel by that point.

MR. WEBER: And Mr. Fahy was also the individual who would have opposed any motions that you made orally for discoverable information such as consent-to-search information, correct?

MR. BUCKMAN: Yes, sir.

MR. WEBER: Nothing further, Mr. Chairman.

SENATOR GORMLEY: Okay. Senator Robertson.

SENATOR ROBERTSON: Thank you, Mr. Chairman.

The offenses that were alleged as part of the criminal indictments of the defendants in Soto took place between the period of 1988 and 1991?

MR. BUCKMAN: That's correct, sir.

SENATOR ROBERTSON: What is your understanding of the discovery responsibilities of the State and its respective data that was assembled regarding troopers' actions subsequent to 1991?

MR. BUCKMAN: Well, my understanding is, in particular, when we are studying this issue -- well, let me -- to try and say it succinctly under Brady v. Maryland, anything would be favorable to the defense and the defense's position should have been provided, particularly in a criminal proceeding. Under our rules of discovery, those materials, even subsequent, should have been provided. And certainly there's an independent ethical obligation not only to an adversary, but to a Court to provide material that may impact on an attorney's position in front of that Court.

Now, what we were studying in Soto was trooper discretion and how it impacted on stop rates. And although our stops were from 1988 until 1991, of course, much of the data that we had to assemble to look at trooper discretion came later than that. For instance, our own violator survey and population survey on the Turnpike was conducted in 1993. So we had to --

we had to just by, if for no other word, default look at statistics impacting on trooper discretion even after 1991.

SENATOR ROBERTSON: Okay. And the period of study even from your own expert was for a period subsequent to 1991, correct?

MR. BUCKMAN: That's correct. Because we were looking at violator studies and population studies taken in 1993.

SENATOR ROBERTSON: And the Court found in Soto that that information on periods of time subsequent to 1991 was, in fact, relevant?

MR. BUCKMAN: Yes.

SENATOR ROBERTSON: And --

MR. BUCKMAN: Because -- I'm sorry. I can expand on that if you'd like. I could tell you why.

SENATOR ROBERTSON: Yeah, because, yes.

MR. BUCKMAN: Because essentially it established the benchmark. I mean essentially what we proved was that, number one, something -- that any given time African-Americans were approximately 13.5 percent of the population on the Turnpike and lo and behold we also proved something very shocking which was that 98.9 percent of the people on the Turnpike were violating the law at any given time and eligible to be stopped and yet depending on the area of the Turnpike that we looked at, African-Americans were being stopped between rates of 34 to 50 percent.

SENATOR ROBERTSON: Was any attempt made to ascertain what the average speed was of those who were stopped?

MR. BUCKMAN: Anecdotally, yes. For instance, the great bulk -- the State tried to argue on appeal that well, maybe troopers stopped the most egregious violators. And the fact of the matter is is that most people who were stopped, particularly African-Americans and particularly south of Exit 3, which was the real epicenter of profiling, didn't even get tickets, they got warnings. They got -- 63 percent of those people got warnings. So the egregious violators weren't being stopped.

SENATOR ROBERTSON: I have no further questions.

SENATOR GORMLEY: Thank you.

We are going to take a 20-minute break and then we'll be back and Judge Waugh will be the next witness.

(Off the record)

SENATOR GORMLEY: Members be seated.

Judge, will you please stand.

A L E X A N D E R P. W A U G H, J R., SWORN

SENATOR GORMLEY: Mr. Chertoff.

MR. CHERTOFF: Thank you, Mr. Chairman.

Judge Waugh, good afternoon.

HONORABLE WAUGH: Good afternoon.

MR. CHERTOFF: Judge Waugh, you were Executive Assistant Attorney General at the Department of Law and Public Safety during what period of time?

HONORABLE WAUGH: From I believe late August or early September of 1993 until January of 1998.

MR. CHERTOFF: Now, focusing your attention on the period of time from late 1993 through 1996. Did you supervise Deputy Assistant -- I'm sorry, Deputy Attorney General Jack Fahy in connection with his handling of the Soto litigation?

HONORABLE WAUGH: I wouldn't say that I supervised him, I would say that he came to me from time to time and asked me questions. And when he wanted to get some information through to the Attorney General, he would come and do that.

MR. CHERTOFF: Now, at that period of time Mr. Fahy was -- was he attached to the Office of the Attorney General?

HONORABLE WAUGH: My recollection is that he was in Legal Affairs I think as long as Legal Affairs existed, but at some point he was transferred to the Division of Criminal Justice and went to the State Grand Jury. So I'm not sure exactly what period of time he was where.

MR. CHERTOFF: When he was at Legal Affairs, was that part of the Office of the Attorney General?

HONORABLE WAUGH: Yes.

MR. CHERTOFF: And to whom did Legal Affairs report?

HONORABLE WAUGH: It depends on the period of time.

MR. CHERTOFF: '93 to '96.

HONORABLE WAUGH: '93 to '96, generally to -- I think when Fred DeVesa was Acting Attorney General, the Legal Affairs Director reported to me. When Attorney General Poritz became Attorney General, I think there was some question as to where the Legal Affairs Director reported and my sense was that she more often went to the Attorney General or the First Assistant Attorney General or would sometimes come to me, depending on what the issue was.

MR. CHERTOFF: To whom did you report during '93 to '96?

HONORABLE WAUGH: The Attorney General.

MR. CHERTOFF: Now, are you familiar with the Soto case?

HONORABLE WAUGH: Yes.

MR. CHERTOFF: Actually, were you here this morning when we heard testimony from Mr. Buckman concerning certain requests for discovery in that case that related to consent-to-search documents and information?

HONORABLE WAUGH: Yes, I was.

MR. CHERTOFF: Do you recall during the time that you were Executive Assistant Attorney General from '93 on, being aware of these requests for information?

HONORABLE WAUGH: No.

MR. CHERTOFF: Did Mr. Fahy ever come to you about any discovery issues with respect to Soto?

HONORABLE WAUGH: Not that I recall.

MR. CHERTOFF: To whom did Mr. Fahy report on those issues?

HONORABLE WAUGH: Well, let me try to explain. Mr. Fahy was a Deputy Attorney General in the Division of Criminal Justice, I believe, and that he was on the Criminal Justice payroll. He was, for a long period of time, assigned to Legal Affairs. He was asked to work on the Soto appeal because the County Prosecutor in whatever county -- I guess it was Gloucester County, needed assistance. I don't know exactly who he reported to, whether there was someone in Criminal Justice that he reported to for Criminal Justice purposes, but for Legal Affairs purposes, as long as he was in Legal Affairs, he would have reported to the Legal Affairs Director.

MR. CHERTOFF: And who --

HONORABLE WAUGH: But as I said --

MR. CHERTOFF: And who was -- well, here's my question. I will be more specific. With respect to decisions about Soto, who did Mr. Fahy talk it over with? Who was his superior?

HONORABLE WAUGH: Well, I think sometimes he talked it over with the Prosecutor's Office. Sometimes he would come to me. And I don't know whether there were other people that he went to.

MR. CHERTOFF: Did he have the authority to make a decision about what discovery would be turned over and not turned over on his own?

HONORABLE WAUGH: As far as I know he did. He did -- let me say he did as far as it concerned me. Whether there was someone else he was talking to, I don't know.

MR. CHERTOFF: And you have no recollection of the issue of discovery requests for consent-to-search data coming up from Mr. Fahy?

HONORABLE WAUGH: No.

MR. CHERTOFF: Now, there came a point in time that you became aware of the fact that there were in addition to Soto other challenges brought by various attorneys in other counties related to the issue of racial profiling, correct?

HONORABLE WAUGH: Yes.

MR. CHERTOFF: And you became aware as well that in some instances rather than litigate those challenges, cases were dismissed, correct?

HONORABLE WAUGH: I don't recall that.

MR. CHERTOFF: Well, for example --

HONORABLE WAUGH: I know there was a case -- if you're talking about the Middlesex County case, there was a case in Middlesex County where there was a motion to suppress that was denied and then I believe the County Prosecutor dismissed some or all of the cases. If that's what you're talking about, yes, I was aware of that.

MR. CHERTOFF: And also in Hunterdon County, was there not a request or a discussion with the Hunterdon County Prosecutor that she dismiss two cases involving first-degree narcotics crimes because of the pendency of litigation concerning selective prosecution?

HONORABLE WAUGH: I believe at my deposition you showed me a document that related to that.

MR. CHERTOFF: And the document indicated that, in fact, there had been a meeting with Mr. Fahy and the Prosecutor about that issue, right?

HONORABLE WAUGH: I believe so, yes.

MR. CHERTOFF: And you received a copy of that, right?

HONORABLE WAUGH: I believe so.

MR. CHERTOFF: Do you remember any discussion about it?

HONORABLE WAUGH: No.

MR. CHERTOFF: Is it fair to say your regular practice though would have been to review documents and memos you received like this, right?

HONORABLE WAUGH: Oh, yes.

MR. CHERTOFF: Is it fair to say, therefore, that by the latter part of 1996 you were aware that the issue of challenges to racial profiling were sufficiently serious that in some instances it had caused cases to be dismissed?

HONORABLE WAUGH: I knew that there were challenges to racial profiling and I knew that cases were dismissed. My recollection from the Middlesex County case was that there was some unhappiness in the Attorney General's Office that those cases were dismissed.

MR. CHERTOFF: You'd agree --

HONORABLE WAUGH: I believe by the Prosecutor and I -- you could tell me when it was. If it was when Fred DeVesa was still Acting Attorney General, I believe my recollection is that he was unhappy that they had been dismissed without consulting him. As far as the Hunterdon County cases, I don't recall.

MR. CHERTOFF: Would you agree with me though in general the notion of dismissing cases in order to avoid a potential legal challenge is a significant matter for the Office of the Attorney General? It's not a lightly-taken decision, right?

HONORABLE WAUGH: Yes.

MR. CHERTOFF: Now, you became aware in approximately March of 1996 that Judge Francis rendered is decision in Soto, correct?

HONORABLE WAUGH: Yes.

MR. CHERTOFF: Did you read the decision?

HONORABLE WAUGH: Yes, I did.

MR. CHERTOFF: And you had discussions about it with then Attorney General Poritz and others?

HONORABLE WAUGH: Yes.

MR. CHERTOFF: Is it fair to say that in dealing with the question whether that decision ought to be appealed, a number of people within the Department weighed in on the discussion?

HONORABLE WAUGH: Yes.

MR. CHERTOFF: Who were the principal people who weighed in on that in early to mid-1996?

HONORABLE WAUGH: Well, I know that the Attorney General, the First Assistant Attorney General were involved. I believe that the Attorney General asked people in the Division of Criminal Justice, particularly Ann Paskow who was in charge of the Appellate section, and I believe maybe Debbie Stone. I think she was -- she may have been involved. And Jaynee LaVecchia who was the Director of the Division of Law and whether one of the two AAG's in charge of appeals in the Division of Law looked at it or not, I don't know.

MR. CHERTOFF: Now, was there an issue of some immediate urgency in early 1996 concerning filing a motion for leave to appeal within a certain time frame?

HONORABLE WAUGH: Yes.

MR. CHERTOFF: So that it was necessary to reach at least a preliminary determination about filing the motion for leave to appeal to preserve the right to appeal down the road, right?

HONORABLE WAUGH: Right. My recollection of the Appellate rules is that a motion for leave to appeal has to be filed 15 days from the date of the order being appealed.

MR. CHERTOFF: Now, am I also correct that one of the issues being debated at the time was whether the Judge was correct in his reliance on statistics relating to stops as a basis for establishing sufficient disparate impact to move forward with the case?

HONORABLE WAUGH: As a general proposition, yes. But I think it was more complicated than that.

MR. CHERTOFF: Why don't you lay out what you understood as of that period of time where the issues that were raised in criticism or objection to the Judge's decision.

HONORABLE WAUGH: I think there were two principal objections. The first was a legal one that he improperly shifted the burden of proof from the defendants to the State. And the second was not so much -- or not at all, actually, as I remember, with the statistics on the stops but with the user and violator survey that was offered by the defense that as I understood it the State's expert had criticized as being not valid.

MR. CHERTOFF: Now, just to make sure we're clear, although I think we've covered this. The user and violator survey is what establishes the baseline against which one measures the stop data to determine whether there's a disparity in stopping.

HONORABLE WAUGH: That's the theory.

MR. CHERTOFF: And there was criticism rendered about the particular way in which the Public Defender's Office in the Soto case developed the violator and user baseline.

HONORABLE WAUGH: Correct.

MR. CHERTOFF: And that was one of the issues for the appeal.

HONORABLE WAUGH: Correct.

MR. CHERTOFF: Now, I take it the motion for leave to appeal was filed within a very limited time frame set forth, right?

HONORABLE WAUGH: Right. Of course, you appeal an order, not a decision, so there probably was some period of time between when Judge Francis issued his opinion and when he entered an order. I don't know what that period of time was. There may have been more than the 15 days. Or I mean sometimes Judges will send an order with their opinion. I just don't remember.

But it was not the 45 days that you would have to appeal the final judgment.

MR. CHERTOFF: What I want to be clear about though is that decision was a decision that had to be reached within a fairly short period of time, otherwise you'd simply lose your right to even appeal.

HONORABLE WAUGH: Yes, with the caveat that if you didn't file -- at one point there was a discussion of whether we should file for leave to appeal or whether the cases should be, some or other, dismissed and an appeal as of right should be taken. And the advice that came from I believe Ann Paskow was that it would be better to file the motion for leave to appeal. But if you had missed the 15-day period, that wouldn't have meant that you could never appeal.

MR. CHERTOFF: But what I'm driving at, and correct me if I'm wrong, is that the decision that was made at this period of time was really driven by the need to position the case procedurally for appeal and not a final conclusion about the merits of the appeal?

HONORABLE WAUGH: Time was a factor that had to be -- the decision had to be made within a limited period of time.

MR. CHERTOFF: Now, there came a point in time that Attorney General Poritz became -- was nominated and was appointed to the Supreme Court.

HONORABLE WAUGH: right.

MR. CHERTOFF: And then Mr. Verniero became Attorney General, correct?

HONORABLE WAUGH: Correct.

MR. CHERTOFF: Were you involved in the transition process?

HONORABLE WAUGH: Not as much as I had been in past transitions and I think that's largely because the other two transitions I went through were from one administration to another and this was a sort of a within an administration and it wasn't -- there wasn't as much time and I don't think it was done as elaborately as it had been in the past. I might have been asked or I may have upon my own prepared some briefing memos.

MR. CHERTOFF: Do you know whether either in writing or orally you communicated with Attorney General Verniero during this initial phase about the Soto?

HONORABLE WAUGH: I don't recall having done that.

MR. CHERTOFF: Do you know whether anybody else did?

HONORABLE WAUGH: I don't know.

MR. CHERTOFF: Now, I want to direct your attention to November of 1996. Did there come a point in time you got a telephone call from the Department of Justice in Washington?

HONORABLE WAUGH: Yes.

MR. CHERTOFF: And who called you and what was the call?

HONORABLE WAUGH: There was an attorney

named --

MR. CHERTOFF: Rosenbaum?

HONORABLE WAUGH: Rosenbaum, yeah. Because there's an attorney that I deal with that has a similar name. I get them confused. Mr. Rosenbaum called the office and for a reason I'm not entirely clear on, I was asked to take the call. And the reason I say that is I don't know whether no one else was there or everyone else was busy. I took the call and he explained that the Civil Rights Division and the Department of Justice was looking into the area of racial profiling in a number of states. They were aware of the Soto decision and they wanted to take a look at New Jersey.

MR. CHERTOFF: And --

HONORABLE WAUGH: He told me what their statutory authority was and sort of outlined how he envisioned the process.

MR. CHERTOFF: What did you say?

HONORABLE WAUGH: I said I will communicate that to the Attorney General.

MR. CHERTOFF: Did you do that?

HONORABLE WAUGH: Yes.

MR. CHERTOFF: Tell us about the conversation you had with Mr. Verniero.

HONORABLE WAUGH: I don't have a dialogue recollection of that and I don't even know -- it was probably the same day because I think if it hadn't been, I would have written a memo. I told him basically what the telephone call was.

MR. CHERTOFF: And what did he say?

HONORABLE WAUGH: I think he was concerned as to why they were looking at New Jersey. Said he'd like to go down and meet with them.

MR. CHERTOFF: Did he indicate to you he felt this was an important matter?

HONORABLE WAUGH: Yes.

MR. CHERTOFF: Did he tell you he was concerned that the matter not be described as an investigation?

HONORABLE WAUGH: I know that at some point there was a preference to call it something else. I don't know whether it was at that initial conversation or some other time.

MR. CHERTOFF: Within a very short period --

well, let me ask you this. Did Mr. Verniero, either initially or very shortly thereafter, indicate to you that he wanted you to request the Department of Justice to meet and to defer sending a letter confirming that there was an investigation?

HONORABLE WAUGH: Yes.

MR. CHERTOFF: Why did he want to avoid that letter and avoid that description?

HONORABLE WAUGH: Well, I don't know that he explained that. I mean as a general proposition agencies of state government don't like to be investigated. And I know he wanted to go down and talk to them about what they were interested in. And I think he wanted to have the letter held until he went down and did that and they decided what was going to happen.

MR. CHERTOFF: Is it fair to say that again from your discussion with him at this initial point, that you understood he was, you know, reasonably -- I'm not saying it's unreasonable, quite reasonably concerned about the possibility of having any indication on the record that there was actually an investigation of his agency by the U.S. Civil Rights Division?

HONORABLE WAUGH: I don't think that was articulated, but --

MR. CHERTOFF: Was that clear to you?

HONORABLE WAUGH: Well, he wanted them to hold the letter until we went down and met with them.

MR. CHERTOFF: Did you go down with Mr. Verniero to meet with the Department of Justice?

HONORABLE WAUGH: I went down to Washington and I met with the Department of Justice with Mr. Verniero and I still to this day don't remember how I got there.

MR. CHERTOFF: Well, do you remember who went with you besides Mr. Verniero?

HONORABLE WAUGH: I believe Jack Fahy went and there was a trooper. And I know that when we arrived at the Justice Department, we arrived in a car driven by a state trooper.

MR. CHERTOFF: In anticipation of the meeting, which I will tell you occurred on December 12th, 1996, was there a meeting a couple days earlier, three days earlier, at the Attorney General's Office to prepare for the meeting?

HONORABLE WAUGH: I believe there was.

MR. CHERTOFF: And in that meeting did Mr. Fahy brief the Attorney General as to what the status was with respect to the Soto case and the other profiling cases?

HONORABLE WAUGH: I believe he did.

MR. CHERTOFF: Do you remember, in fact, whether he prepared a memo that set forth some of the facts relating to Soto?

HONORABLE WAUGH: I think I've seen such a memo.

MR. CHERTOFF: Now, in that conversation, among other things, or as of that conversation, were you aware that there was a Maryland case that had been brought involving State Police in Maryland that had resulted in a consent decree?

HONORABLE WAUGH: I don't remember being aware of the Maryland case at that time. I know from having looked through my file that there must have been a press clipping in the clippings that were done every day in the Attorney General's Office that I ripped out. And my sense was that that clipping came into my possession in '97, but I could be wrong. I mean it's in my file and it probably has a date on it.

MR. CHERTOFF: Well, didn't Mr. Fahy in a memo that went to you, among others, and the Attorney General make reference to the Maryland case?

HONORABLE WAUGH: He may have. You asked me if I remembered and I didn't remember.

MR. CHERTOFF: Well, let me refresh your memory with Page 77 of your deposition. At Line 21 the question was: "Did you become aware in this period of time, again preparing for the December 12th meeting, that the issue of profiling had been raised in other states, particularly Maryland and Illinois?"

The Witness: "I believe I knew that generally and I don't think that the Department of Justice that Mr. Rosenbaum said specifically what other states they were looking at, but he said that they were looking at other states."

Question: "And if I look, if I show you the Page 3 of this memo to you, last paragraph, does that refresh your memory that Jack Fahy had pointed out to you this was ongoing with other states?"

Answer: "That's what it says."

Is that correct? That refreshes --

HONORABLE WAUGH: I have no reason to dispute that.

MR. CHERTOFF: Now --

HONORABLE WAUGH: But what I'm not clear of is whether we knew at that time that there was a case in Maryland or that Maryland had entered into the consent decree.

MR. CHERTOFF: Did Mr. Fahy tell you at this preparatory meeting that he had actually met with officials from Maryland on this case?

HONORABLE WAUGH: I don't recall that. I don't recall that he did.

MR. CHERTOFF: Did you in this meeting discuss the decision in the Gloucester County case in related memos?

HONORABLE WAUGH: I would assume that we did, yes.

MR. CHERTOFF: So it's clear to you that as of that point at least the Attorney General and the others participating were aware of the Gloucester County case and generally what the litigation status was with respect to racial profiling?

HONORABLE WAUGH: Yes.

MR. CHERTOFF: Now, what was the substance of the meeting -- first of all, who did you meet with at the Department of Justice, if you recall?

HONORABLE WAUGH: There was Loretta King, who was I believe at the time the highest-ranking person because I think the person in charge had left or was on his way out. There was Mr. Rosenbaum. There was an attorney named Posner. And I believe there was another attorney.

MR. CHERTOFF: What was the discussion at the meeting? What did the Attorney General -- what did Attorney General Verniero say and what was said in response?

HONORABLE WAUGH: After general introductions I think -- I forget whether he started or they started, they would have said what they were doing, what they were interested in. I think he wanted to tell them about the Soto appeal and why it was being appealed and what he viewed as the issues. He said that he wanted to cooperate with them.

MR. CHERTOFF: Now, did he indicate that he was very concerned again about not having this process be described as an investigation?

HONORABLE WAUGH: I don't really remember that being discussed but it may well have been.

MR. CHERTOFF: Well again, let me go back to your deposition at Page 86, Line 12. "My recollection is, and again I don't remember specifically, you know, how -- how it took place, is that the Attorney General I think did want to, you know, no one -- no one -- no state government wants to be investigated and I think that he was interested I guess in having it called something other than an investigation." Was that correct?

HONORABLE WAUGH: Yes.

MR. CHERTOFF: And did he communicate that to the federal people at the meeting?

HONORABLE WAUGH: If I said that he did in his deposition, I would stand by my deposition testimony.

MR. CHERTOFF: Did he say at the meeting that he felt this was an important issue and that's why he came down personally?

HONORABLE WAUGH: Yes.

MR. CHERTOFF: So it's clear to you that he was focused on this issue.

HONORABLE WAUGH: Yes.

MR. CHERTOFF: And he was able to talk about Soto with some degree of knowledge about the issues in the appeal?

HONORABLE WAUGH: Yes.

MR. CHERTOFF: Did he do most of the talking on behalf of the State, by the way?

HONORABLE WAUGH: I would say he probably did a lot of the talking. He may have asked Jack Fahy to answer some questions.

MR. CHERTOFF: Now, did he make any representations at that meeting concerning what he had been told by the State Police concerning profiling?

HONORABLE WAUGH: It's quite -- I don't remember dialogue from that meeting. It's quite possible that he told them about some steps that had been taken after the Soto decision was issued and that the State Police were -- assured him that there was certainly no official approval of profiling, quite the contrary. It was not approved and that State Police was on the lookout to make sure it didn't happen.

MR. CHERTOFF: Now, after this meeting or in the course of this meeting did the Department of Justice indicate they wanted to start receiving certain information from the State of New Jersey?

HONORABLE WAUGH: Yes.

MR. CHERTOFF: Did they agree, by the way, not to send a letter describing this as an investigation?

HONORABLE WAUGH: I have to assume so because they didn't send the letter. And they gave us -- and sort of a continued answer to your first question, they gave us a document that was sort of in blank and said this is the kind of document, documents we usually look for in something like this. Why don't you take it back and look at it or something like that.

MR. CHERTOFF: And when you left, were you essentially assigned by Attorney General Verniero to take charge of this matter and report it directly to him?

HONORABLE WAUGH: That's probably a fair statement.

MR. CHERTOFF: And you then supervised who in terms of carrying out this project?

HONORABLE WAUGH: I started working with Jack Fahy and then there came a time when I think Jack Fahy wanted to get out of the issue because he had by that time gone to the Division of Criminal Justice, was working at the State Grand Jury. That was a very interesting responsible position for him. It was a good career move. And I think after how ever many years, he was sort of tired of working on this one issue. So then the question became who was going to take his place.

MR. CHERTOFF: So is it fair to say that at that point in time the chain became first Fahy and then George Rover, to you, to Attorney General Verniero?

HONORABLE WAUGH: Yes.

MR. CHERTOFF: Now, in connection with this discussion at the Department of Justice, was there any discussion when you were there about having communication be oral as much as possible as opposed to in writing?

HONORABLE WAUGH: I don't remember anything like that.

MR. CHERTOFF: Now, when you came back from the meeting, did you at some point get this blank sample document request and furnish it to Mr. Fahy?

HONORABLE WAUGH: Yeah. I believe I sent him a memo asking him not so much to contact -- I guess I told him not to contact the State Police yet but to give me an idea from his knowledge and experience in handling the case, what sort of documentation there was and how easy or hard it would be to get.

MR. CHERTOFF: Why did you tell him specifically not to contact the State Police right away?

HONORABLE WAUGH: What was the date of the memo?

MR. CHERTOFF: It was December 20th, 1996.

HONORABLE WAUGH: I believe that there was going to be a meeting subsequent to that -- I see December 24th written on the board over here and that I think is the date there was a meeting with the Superintendent and I think that the reason I didn't ask him to contact the State Police is because we were going to bring it up at that meeting.

MR. CHERTOFF: And did you attend the meeting on December 24th?

HONORABLE WAUGH: Yes.

MR. CHERTOFF: Who was at the meeting?

HONORABLE WAUGH: I was, the Attorney General was, Jack Fahy was, the Superintendent and I don't remember who was there else from the State Police.

MR. CHERTOFF: And what was the discussion at that meeting?

HONORABLE WAUGH: The Attorney General related what the discussion was at the Department of Justice. I think there probably was a discussion of the documents, the type of documents. And I think the Attorney General basically said that we would work with the Department of Justice in providing the documents as they asked for them.

MR. CHERTOFF: Now, let me ask you this. In your experience before this point in time, had there ever been an Civil Rights investigation of the Department of Law and Public Safety or any of its components that you were aware of?

HONORABLE WAUGH: There was -- by the time I got there, there was a consent decree between the State Police and the Department of Justice with respect to minority and women hiring.

MR. CHERTOFF: And when had that been entered into?

HONORABLE WAUGH: I know it -- well, I got there in '89 and I believe it had been in place for quite a while. I'm not sure exactly when.

MR. CHERTOFF: So it's fair to say that an investigation of the State -- of the State Department of Law and Public Safety by the feds is an unusual and important occurrence?

HONORABLE WAUGH: Yes.

MR. CHERTOFF: And is it fair to say that it commanded the personal attention of the Attorney General?

HONORABLE WAUGH: Yes.

MR. CHERTOFF: Now, was that sense of importance communicated at the meeting of December 24th? What was the discussion on the 24th? The Superintendent comes in. Is it fair to say he's concerned about what all this business is in Washington?

HONORABLE WAUGH: I would say so.

MR. CHERTOFF: And did the Attorney General express his concern as well?

HONORABLE WAUGH: I don't recall anyone expressing concern in the sense that it was obvious.

MR. CHERTOFF: Did anybody talk about the need to try to avoid getting into a formal investigative situation by trying to provide documents and be cooperative and keeping it informed?

HONORABLE WAUGH: The latter but I don't believe there was a discussion of the former.

MR. CHERTOFF: Did the Attorney General indicate to the Superintendent that he had been able to avoid having a letter sent out that characterized this as an investigation?

HONORABLE WAUGH: I don't have a recollection of that being said but as I said, I don't remember dialogue. I was aware that they weren't going to send a letter and we sent a letter. I just don't remember specifically.

MR. CHERTOFF: I now want to take you forward a little bit into the new year of 1997. At that point is it fair to say in terms of who you dealt with on the issue of this Department of Justice investigation, you reported directly to Peter Verniero?

HONORABLE WAUGH: Yes.

MR. CHERTOFF: And was it your regular --

HONORABLE WAUGH: I reported to Peter Verniero directly for everything.

MR. CHERTOFF: Was it your regular practice to keep him advised of any significant or material development or issue with respect to racial profiling?

HONORABLE WAUGH: Yes.

MR. CHERTOFF: And you typically did that in writing most of the time or orally most of the time?

HONORABLE WAUGH: I would -- I would say probably -- I don't know how to answer that question because I know I sent him a lot of memos and if I would get a document that I thought he should see, I would send it to him. So it's easy to count those up and see how many there were. I would say that on most significant issues, especially if there was a document attached to it or a document that raised an issue, that I would have done it in writing. But, you know, his office and my office was on the same floor so we'd run into each other.

MR. CHERTOFF: Was he, starting in January of 1997 and going forward the next six months, hands-on in terms of being advised and participating in discussions with respect to the significant events in connection with the Department of Justice review?

HONORABLE WAUGH: I would say so, yes.

MR. CHERTOFF: I want to show you what we've previously marked as exhibit F-26. It's OAG625 and it is a draft letter. It says either January 7 or 17th, 1997 and it's a draft to Loretta King, which I'm putting up.

HONORABLE WAUGH: I have it.

MR. CHERTOFF: Okay. I just also wanted --

HONORABLE WAUGH: Is it P or F-26?

MR. CHERTOFF: F-26.

HONORABLE WAUGH: Yes.

MR. CHERTOFF: Mr. Weber's handwriting is not very good.

Do you recognize this document?

HONORABLE WAUGH: Yes, I do.

MR. CHERTOFF: And who prepared the initial draft of this letter to Ms. King at the Department of Justice?

HONORABLE WAUGH: I believe Jack Fahy did.

MR. CHERTOFF: And he sent it up to you?

HONORABLE WAUGH: Yes.

MR. CHERTOFF: And then you sent it up to Mr. Verniero?

HONORABLE WAUGH: Yes.

MR. CHERTOFF: Now, the handwriting that appears on the first page, there's a piece of handwriting that says, "Patty, please make revisions and produce another double-spaced draft." Whose writing is that?

HONORABLE WAUGH: That's mine.

MR. CHERTOFF: The other writing on the page, whose is that?

HONORABLE WAUGH: That's Attorney General Verniero's -- well, wait a minute. You said most of the other writing on the page is the Attorney General's. I think I changed "mutually committed" to "mutual commitment."

MR. CHERTOFF: But the writing at the top --

HONORABLE WAUGH: Yes.

MR. CHERTOFF: -- above the typing would be Attorney General Verniero's?

HONORABLE WAUGH: That's correct.

MR. CHERTOFF: Now, I'm not going to take you through all the handwriting. You've covered it in the deposition. But I want to direct your attention specifically to Page 8 of the draft.

HONORABLE WAUGH: Yes.

MR. CHERTOFF: Now, let's put Page 8 up.

Now, with respect to this page, you see there's some typing that says, "I believe the time has come to spend sufficient resources to develop and conduct a trustworthy violator survey." And then the paragraph continues, right?

HONORABLE WAUGH: Yeah.

MR. CHERTOFF: You see it stricken out?

HONORABLE WAUGH: Yes.

MR. CHERTOFF: And you see there's handwriting instead that says, "My office is in the process of developing."

HONORABLE WAUGH: Correct.

MR. CHERTOFF: Whose writing is that?

HONORABLE WAUGH: It's the Attorney General's.

MR. CHERTOFF: It was Peter Verniero.

HONORABLE WAUGH: Yes.

MR. CHERTOFF: And the striking out was also Mr. Verniero's, to your knowledge?

HONORABLE WAUGH: Yeah.

MR. CHERTOFF: Now, you do review this draft before you sent it to Mr. Verniero?

HONORABLE WAUGH: Yes.

MR. CHERTOFF: The typed draft.

HONORABLE WAUGH: Yes.

MR. CHERTOFF: And you didn't suggest striking out this language here that talks about stops and remaining near the level reported in the Soto case?

HONORABLE WAUGH: Not that I recall. I mean if I was going to suggest something like that, I would have put it in brackets.

MR. CHERTOFF: Did he tell you why he struck it out?

HONORABLE WAUGH: No.

MR. CHERTOFF: At this time were you aware -- again, you were aware there was a pending appeal with respect to the Soto matter.

HONORABLE WAUGH: Yes.

MR. CHERTOFF: Did you give any consideration to whether the existence of information concerning a number of stops in the same geographic location and was more current than the data that was underlying the Soto case, whether that was something that needed to be made available to the defense or potentially to the Court in connection with the litigation?

HONORABLE WAUGH: No.

MR. CHERTOFF: Did you ever discuss that with anybody?

HONORABLE WAUGH: No.

MR. CHERTOFF: As you sit here now, do you have a sense of perhaps there was something that at least should have been considered in terms of continuing discovery obligations or disclosure to the Court?

HONORABLE WAUGH: Well, I heard Mr. Buckman's testimony and I heard Mr. Buckman take the position that it should have been. I'm not a criminal practitioner, I've never -- I've argued a few criminal appeals just because when I was there I wanted to argue something. I'm not familiar with criminal practice and procedures, so I don't know the answer to that question.

MR. CHERTOFF: Do you know whether it was discussed at all in terms of this letter or anytime thereafter?

HONORABLE WAUGH: Not in my presence, no. I didn't see it as an issue.

MR. CHERTOFF: Again, the Attorney -- you had no discussion at any point with the Attorney General concerning why he struck this language from the letter?

HONORABLE WAUGH: Not that I recall. It was very common for us to send drafts back and forth and so it would just come back to me with the changes. I think if I recall correctly I made a few more edits that are more stylistic or grammatical and then I sent it to my secretary to be redone.

MR. CHERTOFF: And you saw the final letter that went out, right?

HONORABLE WAUGH: I believe so, yes.

MR. CHERTOFF: And the language that was stricken here concerning the current -- or more current information about stops remained out of the letter.

HONORABLE WAUGH: Correct.

MR. CHERTOFF: And I take it you understood that there was some significance to the fact, whether it's conclusive or not, that the stop percentages for minorities in the Moorestown area of the Turnpike was continuing to be the same recently as it had been back in '88 to '91, right?

HONORABLE WAUGH: It was an issue.

MR. CHERTOFF: I mean isn't it a fact that at various points in time one of the arguments that was made about whether there was a racial profiling issue was that the information in Soto was dated information and that it was based upon events that had occurred before reforms were put into place in the early nineties?

HONORABLE WAUGH: Well, yes, but the Soto -- I think that's correct, but the Soto decision, as I recall it, was stops that were made between '88 and '91.

MR. CHERTOFF: So in terms of dealing with the Department of Justice, did you ever hear anybody make the argument that Soto was really irrelevant or not particularly persuasive because it was really based on old data and things had changed a lot and there had been a lot of reform since 1991? Had that argument been made or discussed in your presence?

HONORABLE WAUGH: I'm having trouble with your question and I can't figure out why.

MR. CHERTOFF: All right. Let me try it again. It's probably the fault of the questioner.

In the discussion with the Department of Justice, let's say, in December of 1996, there was a description by the people from New Jersey about the Soto appeal. Did anybody say anything like look, one of the reasons Soto was not particularly helpful is it's all based on data that occurred before 1991 and we're already in 1996 and there have been a lot of changes since then? Was that point made to the Department of Justice?

HONORABLE WAUGH: I know there have been a lot of changes point was made and the former point may have been made, I don't recall.

MR. CHERTOFF: But you'd agree with me, therefore, that if it was -- if there was an indication that the number of stops in '95 and '96 remained the same as they had been in '88 through '91, it would have an impact on the way in which the argument about changes had been received, right?

HONORABLE WAUGH: Well, the position, as I understood it, was that it wasn't the numbers of stops, but you had to look at the numbers of stops and something else.

MR. CHERTOFF: I understand. But in addition to that argument, wasn't there also another argument made that the whole Soto case was based on facts from five or six years ago and that the reforms that had been put into place since then could very well make those numbers academic? Wasn't that argument made?

HONORABLE WAUGH: It was always argued that there had been reforms from the early nineties through when the Soto decision was made and after that were intended to address the issue.

MR. CHERTOFF: And you'd agree with me that if, in fact, there was information presented, that the numbers hadn't changed despite that intervening period of time, it would tend to undercut that argument made by the State, right? Or at least raise the issue.

HONORABLE WAUGH: It might, but I mean my understanding is the numbers still haven't changed.

MR. CHERTOFF: In any case, you'll agree with me that the letter that was sent to Loretta King omitted the language with respect to this more current information about stops, correct?

HONORABLE WAUGH: Correct.

MR. CHERTOFF: Now, is it fair to say that as this matter went forward in connection with discovery and correspondence with the Department of Justice, the Attorney General asked to be closely informed by you about the progress of this matter?

HONORABLE WAUGH: Yes. I think there was a settling-in period when Mr. Rover, who eventually was asked by me to take over for Jack Fahy and Mr. Posner at the Department of Justice, were sort of beginning to talk about what was going to be produced and how it was going to be produced and the Attorney General wanted to know what was going on.

MR. CHERTOFF: And is it fair to say that he wanted to be informed at a fairly detailed level about all the interaction with the Department of Justice on this issue?

HONORABLE WAUGH: Well, I kept him informed at a fairly detailed level. I don't know whether -- I mean and I knew he wanted to be informed. Whether I was giving him more detail than he wanted, I don't know.

MR. CHERTOFF: And so, for example, with respect to the next draft of this letter to Loretta King dated January 9th, which is exhibit W-15, we can put that up on the board, if you look down at the bottom of that document you'll see the words "Alex, let's discuss P-110." Is that Peter Verniero's handwriting?

HONORABLE WAUGH: Yes.

MR. CHERTOFF: And did you, in fact, go and discuss Loretta with him?

HONORABLE WAUGH: I assume I did, yes.

MR. CHERTOFF: So it would be fair to say then that he wanted to then not only make provisions to the prior draft, but he wanted to discuss this second draft or later draft, right?

HONORABLE WAUGH: Well, he wanted to discuss the issue. Whether he wanted to discuss the draft or something else about the issue, I don't remember.

MR. CHERTOFF: Then let me put up W-17, which is a memo to you from George Rover summarizing a January 30th conference call. Put that up.

HONORABLE WAUGH: Right.

MR. CHERTOFF: Now, with respect to that, there's your handwriting at the top "To PV." That would be Peter Verniero, right?

HONORABLE WAUGH: Right.

MR. CHERTOFF: "FYI, I have asked DAG Rover to prepare an options memo for our review and discussion," correct?

HONORABLE WAUGH: Right.

MR. CHERTOFF: So again, you were keeping him informed with respect to this telephone call, right?

HONORABLE WAUGH: Right.

MR. CHERTOFF: The next document shows a letter, it's W-21, February 6, 1997 to Mark Posner. He was one of the Civil Rights lawyers. And to George Rover?

HONORABLE WAUGH: Yes.

MR. CHERTOFF: And it's copied to you and in the right-hand corner it says, "To PV FYI," and that's your handwriting, right?

HONORABLE WAUGH: Right.

MR. CHERTOFF: And then the upper left-hand corner it says, "Alex, please see me," right?

HONORABLE WAUGH: Right.

MR. CHERTOFF: Now, do you remember what in particular he wanted to talk to you about?

HONORABLE WAUGH: No.

MR. CHERTOFF: But again, this is a -- he followed up with respect to this letter, too?

HONORABLE WAUGH: The usual --

MR. CHERTOFF: You'd agree with me --

HONORABLE WAUGH: The usual procedure was if I sent something in to the Attorney General and he wanted to talk to me about it, he would send it back with "See me," or sometimes he would just come to my office with it.

MR. CHERTOFF: But he certainly didn't see you about every letter or memo that you passed up to him with respect to every case or every matter in the Department.

HONORABLE WAUGH: No, not -- I mean he may have seen me about all or most in particular issues that I was working on, but certainly not everything I sent.

MR. CHERTOFF: So for him to say "Please see me" would indicate that he had --

HONORABLE WAUGH: Something to say.

MR. CHERTOFF: You put it better than I could.

By the way, when you brought Mr. Rover in to this, remember you sent him a memo saying you didn't want him to freelance.

HONORABLE WAUGH: Right.

MR. CHERTOFF: And what did you mean by that?

HONORABLE WAUGH: George had something of a reputation of being somebody who would sometimes go off and work on something and you'd never hear from him. And I wanted to make it clear to him that I wanted to know what was going on. And I'll give you an example, although obviously I didn't have it in mind at the time, of the sort of thing that I wouldn't have wanted to happen. And that is he sent me a memo later on that talked about we should educate the Justice Department and send them DEA tapes and we should get other Attorneys General to call the Justice Department. I would not have wanted him to do something like that just on its own. That's the sort of thing I had in mind.

MR. CHERTOFF: Is it fair to say that you communicated to Mr. Rover that you wanted -- you didn't want him making decisions of any materiality or significance without consulting you on this matter?

HONORABLE WAUGH: I think I would agree with that.

MR. CHERTOFF: And is it fair to say that you didn't make any decisions of materiality or significance regarding this matter without talking to the Attorney General?

HONORABLE WAUGH: Yes.

MR. CHERTOFF: Let me go to the next document, W-22. It's 2-6-97. Again, it's actually the -- it's a letter from February 6th from the Civil Rights Division to someone at the Turnpike, which had been sent to Mr. Rover and it says at the top, "Alex, please see me," again --

HONORABLE WAUGH: Right.

MR. CHERTOFF: And in the middle it says, "To PV, FYI." And again, this would be part of that course of conduct whereas with respect to this time period pretty much any correspondence or communication with the Department you would run by Mr. Verniero.

HONORABLE WAUGH: Right.

MR. CHERTOFF: And he often wanted to see you about it.

HONORABLE WAUGH: So far.

MR. CHERTOFF: Do you know what he discussed with respect to this particular letter?

HONORABLE WAUGH: I have a vague recollection that he asked me why they were writing to the Turnpike and I think I said to him because they thought the Turnpike might have the information they were looking for.

MR. CHERTOFF: Okay. Now, let me go again to a document we've marked as W-23A and this is a proposed letter to the Civil Rights Division regarding requests for information about summonses and warning data from the Cranbury and Moorestown stations with a cover sheet to the Attorney General. "Attached for your review and approval is a proposed letter responding to several questions asked by the DOJ." Again, was it -- again the practice as of this point for the Attorney General to actually literally review and edit a letter like this on this matter?

HONORABLE WAUGH: I felt that it was -- that I should be bringing this stuff to his attention. Whether he edited this letter or not, I don't know.

MR. CHERTOFF: But he certainly indicated he wanted you to do that, right? He didn't say stop, you're giving me too much paper?

HONORABLE WAUGH: He never said that.

MR. CHERTOFF: And, in fact, as we've seen, he would often say to you, please see me or let's talk about it.

HONORABLE WAUGH: Right.

MR. CHERTOFF: Again, W-24, the next document, OAG825 is a letter or a memorandum to you from George Rover regarding another conversation with Mark Posner. And again, you have on it "To PV, FYI," that's your writing again, right?

HONORABLE WAUGH: Yeah.

MR. CHERTOFF: Now, at this same time was there also work being done with respect to the draft brief in the Soto case?

HONORABLE WAUGH: I believe so.

MR. CHERTOFF: And the Attorney General then was personally involved in editing that?

HONORABLE WAUGH: I know he saw it. If you gave him a draft document, he would edit it.

MR. CHERTOFF: So -- now, I take it, again from your experience, it wasn't the practice of the State Attorney General to even review every brief filed by the Division of Criminal Justice in criminal cases?

HONORABLE WAUGH: It was not the practice of the Attorney General to review every brief by any of the Legal Division.

MR. CHERTOFF: Because there are a lot of briefs filed and you could spend 60 hours a day reviewing briefs if you read them all, right?

HONORABLE WAUGH: At least.

MR. CHERTOFF: But with respect to this appeal, it was, in fact, given to the AAG to be looked at before it was finalized, correct?

HONORABLE WAUGH: It was not -- it was not unusual for an Attorney General to edit a brief. But your question was -- no Attorney General that I ever saw edit it ever -- but if it was a significant issue, it was not unusual for an Attorney General to at least ask him to look at it.

MR. CHERTOFF: And this was clearly a significant issue?

HONORABLE WAUGH: Yeah.

MR. CHERTOFF: Now, let me show you F-22, which is a memo to Peter Verniero to John M. Fahy regarding the Appellate brief and enclosing the merits brief on the appeal. Now, at the bottom of this writing it says, "John Fahy. Looks okay to me. After we file, we may want to send a copy to DOJ in Washington. Peter, 3-11." Is that Peter Verniero's handwriting?

HONORABLE WAUGH: Yes.

MR. CHERTOFF: Did you ever have any discussion with him about why he might want to file that appeal brief?

HONORABLE WAUGH: Why he might want to file it?

MR. CHERTOFF: I'm sorry, send it to DOJ.

HONORABLE WAUGH: No. I don't believe I received a copy of this memo. It doesn't show that either Jack Fahy or the Attorney General sent it to me.

I mean I don't want to mislead you because he may have said to me at anytime, when the Soto brief is finished and ready to be filed, maybe we should send it to the Department of Justice and I probably would have said, you know, yeah, why not?

MR. CHERTOFF: Now, what were the arguments, again the principal arguments made in the brief, if you can recall, challenging Judge Francis' decision?

HONORABLE WAUGH: My recollection and understanding is that they were what we talked about before, that the legal standard was incorrect and that the Court should not have relied on the violator/user survey because it was not valid.

MR. CHERTOFF: Now, was it your understanding that the reason to send this to the Department of Justice might be again to put before the Civil Rights Division the arguments about why they should not put too heavy a reliance on Soto in their own review?

HONORABLE WAUGH: I don't know that I would agree with that. When we went down, we told them about the Soto appeal. We told them why we appealed and I believe the thought was it was something they were interested in so we should let them have it. But maybe I'm not understanding your --

MR. CHERTOFF: Well, I mean my question was whether you had an understanding about why it was that there was some interest in giving these arguments or passing these arguments in the Department of Justice in Washington? Was it with a notion that they should use this in considering whether they wanted to treat Soto as a significant factor in their review?

HONORABLE WAUGH: I don't recall that being articulated. I think it was just that they had been told about Soto. Soto involved -- I mean when Mr. Rosenbaum called me, he told me that they were -- that they knew about Soto and so it was for their information.

MR. CHERTOFF: Now, at this point again, the focus of Soto was on stops, right?

HONORABLE WAUGH: Yes.

MR. CHERTOFF: And it's fair to say that one of the arguments that the State of New Jersey felt was a powerful argument is that the stop data was not particularly meaningful in the absence of a valid baseline violator or user survey, correct?

HONORABLE WAUGH: I believe that was the argument.

MR. CHERTOFF: And that was again articulated in Soto, right?

HONORABLE WAUGH: Yes.

MR. CHERTOFF: Now, let me show you what's

W-26, a memo to Peter Verniero, April 7th. And again, this is attaching a copy of a Department of Justice request for specific information as to statistics for certain dates. And is it fair to say again you sent this on to Peter Verniero for him to review as well?

HONORABLE WAUGH: Yes.

MR. CHERTOFF: Now, I want to locate you in time now to the period of April 1997. And as we've just indicated, the focus of Soto was stops and one of the points made clear to the Civil Rights Division, both orally and by sending a copy of the Soto brief was that there was a flaw, a logical flaw in relying too heavily on stop data because of the absence of the baseline, fair to say?

HONORABLE WAUGH: I think that was the argument.

MR. CHERTOFF: But during the period of March -- February, March and April of '97, did you become aware through conversations with Mr. Rover that there had been other analysis done with respect to a different type of issue as it relates to the Turnpike, namely consents to search?

HONORABLE WAUGH: Well, I became aware at some point and I think it was in that time period that the Department of Justice had talked to him about consent-to-search information, so that's one.

Two, I know from what reading I've done to prepare for today that there was an issue with respect to a couple of documents that dealt with roadways other than the Turnpike that I think he testified he had asked me about and I had said that I didn't think they needed to be produced.

MR. CHERTOFF: Well, we'll get to that later.

HONORABLE WAUGH: All right. I want to just focus on this issue, which is did you become aware sometime between February and April from discussions with Mr. Rover that Mr. Rover had learned that the Justice Department was interested in consent-to-search data and that that data had been a factor in a Maryland case that led to a consent decree for the Maryland State Police?

HONORABLE WAUGH: Yes. I mean I certainly by the time we got to the May 20th meeting, I knew all that and I think it sort of came piecemeal during that period of time.

MR. CHERTOFF: Okay. And, in fact, to help you out in locating this in time, I'm going to show you a memo with a cover page, 4-23-97, to PV. It's W-27,

OAG865. Now, attached to this document is a memo to you from George Rover regarding the State Police, right?

HONORABLE WAUGH: Correct.

MR. CHERTOFF: And if you look at Page 6 of that memo, midway through the page it says, "The second unrelated issue involves NJSP consent-to-search data."

HONORABLE WAUGH: Right.

MR. CHERTOFF: And he talks in this memo about the forms, that DOJ is interested in the data because of action pursued by plaintiffs in the Maryland case where they used this data to prove selective prosecution in getting consent decree. And that he wanted to start educating the DOJ of the position that these documents are irrelevant to the issue of stops and therefore should not be considered by the Department of Justice as part of their review. Is that a fair summary of the content of the memo?

HONORABLE WAUGH: Where is the part where you say he talks about educating the Department of Justice?

MR. CHERTOFF: Prior to that -- this is on Page 7, prior to that -- this is the last paragraph, "I would like to begin 'educating' USDOJ of our position on these documents and what conclusions can be drawn from them. It's my belief that they 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." Do you remember that?

HONORABLE WAUGH: Yes. That's what it says.

MR. CHERTOFF: Now, if we turn to the cover sheet, you write to Peter Verniero, "I would like to discuss this issue with you. The attached is my only copy." And you sign it, is that correct?

HONORABLE WAUGH: Right.

MR. CHERTOFF: And then underneath it says in writing, "Alex, do we need another meeting in D.C.? It appears so." And that's Peter Verniero's writing.

HONORABLE WAUGH: Correct.

MR. CHERTOFF: Now, standing back from this document, is it fair to say that as of this point -- well, let me withdraw that question.

Before you go the memo, had George Rover discussed with you the issues that are in the memo at various points in time?

HONORABLE WAUGH: I don't think he ever discussed with me before that his idea about educating the Justice Department with respect to the DEA and that set of issues. It's not impossible that he, either over the phone or every once in a while he would stop by, told me that the Justice Department was asking about the consent-to-search data. In other words, I can't tell you as I sit here today whether this memo from him dated April 22nd is the first time I became aware of that or whether I knew it some time in advance because he told me it was an issue.

MR. CHERTOFF: So I will represent to you that it's in the record that he testified here that he had spoken to you about it before he sent the memo. I take it you wouldn't disagree with that?

HONORABLE WAUGH: I don't have a factual basis to disagree with that, but I don't -- I don't remember.

MR. CHERTOFF: You'll also agree with me that certainly as of the date of the memo you received this information, correct?

HONORABLE WAUGH: Definitely.

MR. CHERTOFF: I take it you understood the significance of the difference between consent to search and stop, right?

HONORABLE WAUGH: Yes. I understood that they were two separate issues. That's at least how I viewed it.

MR. CHERTOFF: Is it fair to say as well that you understood that the concerns raised with respect to a violator survey as a baseline for stops were not applicable when you're looking at consent-to-search data, because there your baseline is the composition of the population of people who have already been stopped?

HONORABLE WAUGH: Are you asking me whether I agree with that or whether I knew that at the time?

MR. CHERTOFF: Well, I'm asking -- I'll ask you both. A, do you agree with it? And B, did you know it at the time?

HONORABLE WAUGH: It makes sense to me. I don't recall -- I don't recall thinking about it at the time.

MR. CHERTOFF: Now, again, to the extent that Mr. Rover discussed this issue with you prior to the memo, was this the kind of material you would discuss with the Attorney General from time to time, you reported up to him?

HONORABLE WAUGH: Probably.

MR. CHERTOFF: And this --

HONORABLE WAUGH: I mean obviously when I got the memo, I gave it to the Attorney General. Since I don't remember whether Mr. Rover mentioned it to me beforehand, I don't remember whether if he did, I discussed it with the Attorney General.

MR. CHERTOFF: But again, you'd agree your regular habit and practice was to discuss anything material or significant with the Attorney General?

HONORABLE WAUGH: That's correct.

MR. CHERTOFF: As it relates to this matter.

HONORABLE WAUGH: Yes.

MR. CHERTOFF: Now, with respect to this particular memo, obviously it came back to you from the Attorney General. Did you have a discussion with him

-- well, let me withdraw the question.

We know there was a May 20th meeting. Between the time you got this back on May 20th, do you recall any discussions with him concerning this memo?

HONORABLE WAUGH: I know that there's another memo that talks about going to -- back to D.C. And I don't remember whether I discussed the issue with him after I got this one or after I got the second one, but my recollection is that there was -- and again, I don't remember dialogue, but I believe there was a discussion and I think his point was well, they seem to be expanding their inquiry, maybe we should go back and talk to them about it. And my general recollection is that I probably said I don't think it's worth it because, you know, it's their inquiry. They can expand it if they want to. I just didn't see a point in going back to Washington. I don't remember dialogue, but that is my best recollection of what the discussion would have been.

MR. CHERTOFF: All right. Let me show you what's been marked as W-28, which is an e-mail from you to the Attorney General's then Assistant.

HONORABLE WAUGH: Right. It could be -- well, I'm sorry. I should wait for your question.

MR. CHERTOFF: Well, my question is, do you remember this e-mail as an effort to get some time to talk to Mr. Verniero about this issue raised in the memo we've just seen from Mr. Rover?

HONORABLE WAUGH: Right.

MR. CHERTOFF: Okay.

HONORABLE WAUGH: And I think maybe this is the one that I was thinking about that it's quite possible that between the 23rd when I sent the memo that's W-28 in and the 29th when I sent this e-mail to his secretary, I had not been able to talk to him and so I was asking -- telling his secretary that I needed to talk to him. And then my handwritten note that says, "Go back again to see them June 9, 10, AG will be there," I assume reflects that I talked to him, although it could be that his secretary told me that he was going to be in Washington, so if we needed to go back, that would be a time when we could do it.

MR. CHERTOFF: Now, you also -- I take it it's his handwriting that says, "Alex, let's discuss maybe time today, maybe."

HONORABLE WAUGH: Right.

MR. CHERTOFF: So is it fair to say as best you can recall, that around this time at the end of April, the beginning of May, you did wind up talking with him. You suggested perhaps that you didn't think it was worth going to Washington, but he indicated his willingness and readiness to do so on this issue of expanding the investigation.

HONORABLE WAUGH: Yes. But I think it was probably in reverse order.

MR. CHERTOFF: Okay. Then give us the order you think it was in.

HONORABLE WAUGH: He said maybe we should go to Washington and I said I don't think it's worth it. And then I think it wasn't an issue anymore because we never did go again.

MR. CHERTOFF: Now, on this issue though, let's be clear. The discussion was going to Washington because of a concern the investigation would be expanded to go from focusing on stops to focusing on consents to search, right?

HONORABLE WAUGH: Right.

MR. CHERTOFF: And as of this point in time, both of you had, both you and the Attorney General, had in your possessions the memo that made it clear that this consent-to-search data was precisely the data that had led to a consent decree in Maryland, right? Because that was dated April 23rd.

HONORABLE WAUGH: That -- I'm sorry. If Rover's April 22nd memo specifically mentions Maryland, then that would be correct.

MR. CHERTOFF: Well, I don't want there to be any doubt about it. It says at Page 7, "In the Maryland action, the plaintiff successfully argued that the percentage of minorities subjected to consent searches, supported a finding that the Maryland State Police engaged in selective prosecution. As a result of this finding, the MSP and a group of plaintiffs entered into a consent order."

So that as of the time there was a discussion about going to Washington, whether it was worth trying to go to Washington and limit the search, it was understood between you and the Attorney General that the implication of limiting the search would be to keep the Justice Department out of the consent-to-search issue, which was the issue that ultimately led to the consent decree in Maryland? I can break it up if it's too long.

HONORABLE WAUGH: Well, we both had that -- we both had that memo. We both -- I mean I knew because I read the memo and I have to assume that the Attorney General did as well, that consent to search was the issue in the Maryland case and that that was the basis upon which Maryland had agreed to a consent decree. So I think my answer to your question is that we did know that.

MR. CHERTOFF: And therefore, that was the context in which the discussion occurred about whether it was worth trying to go to Justice to limit the investigation to stops rather than consents to search, correct?

HONORABLE WAUGH: Well, that's one of the reasons why I didn't think it was worth going.

MR. CHERTOFF: Now, there then is a meeting that occurs on May 20th, right?

HONORABLE WAUGH: Right.

MR. CHERTOFF: And you actually prepared the agenda for that meeting.

HONORABLE WAUGH: I believe so.

MR. CHERTOFF: And that --

HONORABLE WAUGH: And yet it was typed by my secretary and I'm, I guess, 75 percent sure that I was probably the one that did it. Somebody else may have done it and she typed it.

MR. CHERTOFF: I'm going to show you W-29, which is actually three versions of the same typed memo, but I want you to turn to the second page, second sheet, which is a version that has writing on it that says, "Tickle two weeks."

HONORABLE WAUGH: Right.

MR. CHERTOFF: Is that your writing?

HONORABLE WAUGH: Yes, it is.

MR. CHERTOFF: Was it your habit sometimes after a meeting to make a note like this as a way to remind you or your secretary to kind of bring this to your attention every couple weeks and to take further action?

HONORABLE WAUGH: Yes. Not done every time, but that's what I would put if I wanted that done.

MR. CHERTOFF: Now, why was this meeting called?

HONORABLE WAUGH: I believe the meeting was called because the memo from Rover raised the issue of the Justice Department had asked for consent-to-search data and I think my recollection is, although it's not really stated in this memo, that they sort of not asked -- they had asked and then they weren't asking at present. But the issue, as far as I was concerned, had to be decided, and that is that's what they're asking for, are we going to supply them with that information? And I think I suggested that there should be a meeting.

MR. CHERTOFF: Now, in particular, how did you assemble the agenda items for the meeting? How did you decide what should be on the agenda?

HONORABLE WAUGH: I don't really remember specifically, I think I just tried to, you know, cull through the recent memos that I got from DAG Rover to try to decide sort of what are the issues that need to be talked about, status, decide them.

MR. CHERTOFF: Now, the bullet point production of consent-to-search documents, is it fair to say that comes out of that April 22nd memo which talks about the Maryland case?

HONORABLE WAUGH: Yes.

MR. CHERTOFF: And when it talks about proper characterization of documents, does that reflect an effort to try to discuss how one could characterize the consent-to-search data forms in a way so as to try to keep the investigation limited to the stop issue rather than getting into the consent-to-search issue?

HONORABLE WAUGH: I wouldn't put it that way. I think -- I think it was a way of raising the issue of whether these were documents that were -- maybe it was a way of trying to articulate whether these documents were related to the investigation that they said they were doing.

MR. CHERTOFF: Well, let me ask you this. If we go back to your April -- the April 22nd memo you got, Mr. Rover suggested on the last page, "We should state to USDOJ that if it wants to use this data," meaning consent-to-search data, "as an indicator of State Police activity, then USDOJ must be required to examine each case the factual circumstances that resulted in the office requesting the consent to search." Do you remember that suggestion?

HONORABLE WAUGH: I remember that it was in the memo.

MR. CHERTOFF: Was part of this discussion here relating to proper characterization of documents, to put on the table a discussion of whether you could, if you're going to have to turn this stuff over, figure out a way to tell the Justice Department the only way they really should be able to use it is if they're willing to go and look at each case individually?

HONORABLE WAUGH: I don't recall that. I mean I don't know how you limit the Justice Department from what they're going to do with a document when you give it to them.

MR. CHERTOFF: Was there a discussion about, at this point in time, about telling the Justice Department that you turned over the consent-to-search documents, but only because it might have information relating to the reason for the initial stop and not because you were agreeing that there should be a broadening of the investigation to consent to search?

HONORABLE WAUGH: At this time.

MR. CHERTOFF: Yeah.

HONORABLE WAUGH: I don't recall. Ultimately, when the letter was sent out in -- well, it was drafted in October and sent out in November, that's what was said.

MR. CHERTOFF: All right. The meeting occurs on May 20th in the Attorney General's Office.

HONORABLE WAUGH: Right.

MR. CHERTOFF: And you attended.

HONORABLE WAUGH: I attended. I think both Rover and Fahy attended. The Attorney General obviously. The Colonel. I think Captain Blaker. And I guess --

MR. CHERTOFF: Sergeant Gilbert?

HONORABLE WAUGH: -- Sergeant Gilbert.

MR. CHERTOFF: And as it relates to this issue with respect to the production of consent-to-search documents, what was the discussion?

HONORABLE WAUGH: Again, I don't recall dialogue except for a couple of things that really stood out in my mind from that meeting. But I think the discussion was with respect to that issue that the State Police was very concerned that the consent-to-search data, if produced for the Justice Department, could lead to a consent decree.

MR. CHERTOFF: And was it explained why they had that concern?

HONORABLE WAUGH: I'm sure it was to some extent and I think I came away from the meeting with the understanding that there was a significant relationship between their consent to search, or what they felt their consent to search numbers were and what they were in Maryland.

MR. CHERTOFF: So that they essentially expressed the view that the numbers in Maryland and the numbers in New Jersey appeared to be very close.

HONORABLE WAUGH: I'm not comfortable with "very close." I think that there was -- it was my understanding that there was a similarity. Whether -- I don't recall that it was refined that closely.

MR. CHERTOFF: Well, did the State Police indicate that because of the numbers and the comparison in the numbers between New Jersey and Maryland, that they were very concerned?

HONORABLE WAUGH: Yes.

MR. CHERTOFF: And did the issue arise about whether the State would agree to disclose the data about the consent to searches or try to resist it?

HONORABLE WAUGH: Again, I don't remember dialogue, but what I came away from the meeting was that we would wait until they asked for the documents again, and then they would probably be produced.

MR. CHERTOFF: And was there a discussion about the fact that when they were produced, if they were asked for and produced, there would be an effort made to still confine the focus of the inquiry on the stop data that's contained on the forms rather than allowing it to broaden out to consent to search?

HONORABLE WAUGH: I don't recall that discussion.

MR. CHERTOFF: Now, let me stand back and try to get just a general sense of this. Is it fair to say at this point it's clear that if one looks at consent-to-search data in New Jersey, it's going to be problematic for the State Police because the numbers are comparable to those in Maryland with respect to a consent decree?

HONORABLE WAUGH: That's what they were concerned about.

MR. CHERTOFF: It's also clear as of the meeting that consent to search involves different considerations than stop, right -- than stops?

HONORABLE WAUGH: Yeah.

MR. CHERTOFF: And it's also clear at this point or self-evident at this point that whatever objections can be raised with respect to violator surveys as it relates to the usefulness of stop data, those objections do not pertain with respect to consent-to-search data, right?

HONORABLE WAUGH: I don't think do. I don't think I ever heard anyone articulate the issue that way. But, I mean, it makes sense to me.

MR. CHERTOFF: Is it also clear at this point that one approach you could take to consent-to-search data if you have skepticism about it is to actually look at the underlying files?

HONORABLE WAUGH: Say that again?

MR. CHERTOFF: Is it also clear as of this point that if you have some question about the conclusiveness of the consent-to-search numbers, one approach to take is to look at the actual files of the individual cases?

HONORABLE WAUGH: Are you asking me whether I agree with that today?

MR. CHERTOFF: Well first, do you agree with that today?

HONORABLE WAUGH: Yeah, I think so.

MR. CHERTOFF: Wasn't that also clear at the time?

HONORABLE WAUGH: I don't remember that being discussed.

MR. CHERTOFF: Well, didn't Mr. Rover, even Mr. Rover himself say in his memo of April 22nd that the position he suggested taking with Justice --

HONORABLE WAUGH: Oh, yeah, you're right, he did.

MR. CHERTOFF: So it had to be clear to anyone who read the memo that one way to look at the consent-to-search numbers, even if you were skeptical about their conclusiveness, would be to drill down and look at the actual case files?

HONORABLE WAUGH: That's what he said in --

MR. CHERTOFF: And it was in the memo that was before everybody at the time of this meeting, correct?

HONORABLE WAUGH: I don't think -- I don't think the memo was before everyone at the time of the meeting.

MR. CHERTOFF: Well, it had been presented previous to the meeting to you, to the Attorney General and certainly Mr. Rover had it because he wrote it.

HONORABLE WAUGH: Right.

MR. CHERTOFF: Now, under these circumstances, let me ask you this. Did anybody in the meeting say or express a question about whether anybody should do any further investigation with respect to the consent-to-search data to see if there was a problem, a real problem?

HONORABLE WAUGH: I don't remember that being discussed.

MR. CHERTOFF: Was there any discussion in the meeting about whether there should be any investigation from a statistical standpoint or a case review standpoint to determine whether racial profiling really is a problem in the State of New Jersey?

HONORABLE WAUGH: I don't think I recall that being discussed either.

MR. CHERTOFF: Was there any discussion about whether somebody should look at the possibility that corrective action should be taken with respect to racial profiling or alleged racial profiling in the State of New Jersey?

HONORABLE WAUGH: Well, it was sort of -- most of the time, to my recollection and I can't say that it occurred at every meeting, when there was a discussion of racial profiling, there would usually be a discussion with the State Police about, you know, you're supposed to be making sure this doesn't happen. As I testified at my deposition, I remember the Attorney General asking the Superintendent if racial profiling was a problem and he said no. I don't recall a discussion of specific remedies though at that meeting.

MR. CHERTOFF: Well, let me get to this question. Now, you recall -- your testimony is you do recall, one thing you do recall from the meeting is the Attorney General saying to the State Police Superintendent, is there racial profiling and he says no, right?

HONORABLE WAUGH: Right. That's not the only thing that I recalled specifically.

MR. CHERTOFF: But you remember that -- that comment.

HONORABLE WAUGH: Yeah. And I think my testimony at my deposition was that I remember that taking place and I'm pretty sure that it was at that meeting because I think it falls into the context of that meeting in terms of the State Police being so concerned about a consent decree. But I'm not a thousand percent sure that it wasn't at another meeting, but I'm pretty sure that it was at this meeting.

MR. CHERTOFF: But even if it occurred at this meeting, the response you recall is simply there's no problem and it was dropped at that -- left at that?

I mean here's my question, maybe I can put it in context a little bit. You've told us that in this meeting what's on the table, either because of the memo that was submitted earlier or because of the discussion, is the fact that there's a new set of statistics, different than stops, which were the subject of the Soto appeal that appeared to have had a major impact on the litigation in Maryland that the State Police are worried about and that present different considerations from stop data and --

HONORABLE WAUGH: I would say that there was a new set of data being asked for by -- or documents being asked for by the Justice Department.

MR. CHERTOFF: It was also clear in the meeting that the State Police had done some kind of review of the statistics on consent to search because they made a comparison between their statistics and those in Maryland?

HONORABLE WAUGH: Well, they had to have known something in order to be concerned.

MR. CHERTOFF: Did anybody say at the meeting to the State Police, what are the numbers?

HONORABLE WAUGH: I don't recall that.

MR. CHERTOFF: Did anybody say at the meeting, why are you concerned about the numbers?

HONORABLE WAUGH: No, I don't recall that -- I don't recall that being discussed other than that they were afraid of a consent decree.

MR. CHERTOFF: And the response of the Attorney General to that was he wasn't going to sign a consent decree, right?

HONORABLE WAUGH: That wasn't his only -- I mean I recall the Attorney General saying something to the effect of if the Justice Department comes back to us with suggestions of remedial measures, I will seriously consider them, but I am not inclined to a consent decree and then he said whatever it is that somebody wrote on his agenda --

MR. CHERTOFF: That "They'd have to tie me to a train and drag me along the tracks."

HONORABLE WAUGH: It was that or something like that.

MR. CHERTOFF: All right. But the response to this issue with respect to the concern about the consent-to-search numbers was put in terms of the Attorney General's being steadfast in opposing a consent decree, right?

HONORABLE WAUGH: Well, I don't want to quibble with you, but the way I remember the meeting there were two responses. One was to ask the Superintendent if there was a real problem with profiling, and I don't remember exactly how the question was asked, but I do remember that he seemed a little bit upset.

MR. CHERTOFF: Who seemed upset?

HONORABLE WAUGH: The Attorney General. I don't know whether upset is right or frustrated but, you know, the Superintendent was -- or the State Police were concerned about this and he said, look, is -- he said something like, and I don't remember dialogue, he said something like is racial profiling a problem? Let's get that straight. Or something like that. And the Attorney General said -- I mean the Superintendent said no. Then there was a discussion of what remedies would be considered if the Justice Department came back and said, you know, we're concerned about what we've seen, and that's when I recall the Attorney General saying something like I would consider reasonably remedial measures, but I'm not inclined to sign a consent decree. I mean state government entities in my experience in the Attorney General's Office don't like consent decrees.

MR. CHERTOFF: But this is the question I'm driving at. Let me start with your state of mind. It's obvious to you in this meeting that the State Police -- the subject is now switched from stops as to which there's a debate about whether the numbers are meaningful to consent to search, which is a different set of issues, correct?

HONORABLE WAUGH: Well, I wouldn't say it was switched. I would say that it was -- that that was an added issue.

MR. CHERTOFF: All right. So now there's a new added issue and you also know the State Police have looked at the numbers because they wouldn't be able to be concerned if they hadn't looked at it, right?

HONORABLE WAUGH: They looked at it to the extent of being concerned.

MR. CHERTOFF: Right. So you knew there's information and data out there, right? Correct?

HONORABLE WAUGH: Again, I don't want to quibble with you, but I knew that they had the impression that the numbers would not be helpful to them. I know that there's been an issue as to whether specific numbers were discussed at that meeting and I don't recall that they were.

MR. CHERTOFF: In your mind though, did you have a curiosity about gees, how bad are the numbers if they're worried about it?

HONORABLE WAUGH: I don't remember thinking that. It was my position all along that the Justice Department should get what they were asking for.

MR. CHERTOFF: I'm not talking about from the standpoint of litigation. Let me step back.

Is the Attorney General responsible for supervising the State Police?

HONORABLE WAUGH: Yes.

MR. CHERTOFF: So in terms of the hierarchy, the buck stops with the Attorney General, right? Correct? In the Department of Law and Public Safety.

HONORABLE WAUGH: Yes.

MR. CHERTOFF: By the way, in terms of your position as Executive Assistant, were you in the chain-of-command for the State Police?

HONORABLE WAUGH: No.

MR. CHERTOFF: Okay. So that the Superintendent reported directly to the Attorney General?

HONORABLE WAUGH: Yes.

MR. CHERTOFF: But the Attorney General at least had supervisory authority over the State Police, right?

HONORABLE WAUGH: That was the theory.

MR. CHERTOFF: So he had obligations, not just as a lawyer litigating for a client, but as a manager supervising a department of state, right?

HONORABLE WAUGH: Right.

MR. CHERTOFF: In that capacity as his advisor, at any point in time, in the meeting or after the meeting, did you say to him, look, in substance, if the State Police are really worried about this, don't we need to kind of find out what the numbers are and why they're so worried and whether there's really a problem?

HONORABLE WAUGH: I don't believe I did.

MR. CHERTOFF: Let me ask you now in retrospect. Is it your view that it was part of the responsibility of the Attorney General in 1997 if there was a red flag up about a problem with the State Police, to take steps as a manager to find out if there really was a problem and if so to take steps to correct it?

HONORABLE WAUGH: If you're asking me, and this isn't precisely your question, but if you're asking me whether in hindsight I wish I had given that advice to the Attorney General, yes, I do.

MR. CHERTOFF: Now, with respect to this issue again of what was discussed in the meeting, did anybody raise the issue in the meeting of actually looking at the underlying cases to see whether, in fact, these requests for searches were valid or not valid?

HONORABLE WAUGH: I don't remember that -- I'm sorry. I don't remember that being discussed.

MR. CHERTOFF: Would I be correct in saying, therefore, in sum with respect to the meeting of May 20th, that there was other than the question that you recall being put to the Superintendent by the Attorney General, is there a profiling problem? to which the Superintendent said no, there was no inquiry or probing or questioning concerning the underlying facts as it relates to consent to searches?

HONORABLE WAUGH: I don't recall any such discussion.

MR. CHERTOFF: In fact, would it be fair to say in the entire period of time you were Executive Assistant Attorney General from the time of the Department of Justice began until you left to become a Judge, at no time did you participate in a meeting in which anybody in the Office of the Attorney General said let's actually find out what the facts are with respect to all these numbers and see if there's any corrective action to be taken?

HONORABLE WAUGH: Other than by cooperating with the Department of Justice and other than the, I think, consistent reminding the State Police that they were supposed to be policing unattended the issue, I don't recall any such discussion.

MR. CHERTOFF: Did you know, by the way, that from December '96 going forward until you left the Department, that George Rover was dealing with Sergeant Gilbert from the State Police as his point of contact with the State Police?

HONORABLE WAUGH: From what -- well, from when?

MR. CHERTOFF: From December '96 --

HONORABLE WAUGH: I don't think George Rover got involved until --

MR. CHERTOFF: Oh, you're right, let me --

HONORABLE WAUGH: -- January.

MR. CHERTOFF: Let me withdraw it.

HONORABLE WAUGH: I knew that he was dealing with someone and I probably knew it was Sergeant Gilbert, but I can't answer your question more specifically than that.

MR. CHERTOFF: Well, let me go to Page 119 of your deposition and refresh your memory, Line 15.

Question: "Was it your understanding that Deputy Attorney General Rover was a person who was dealing with Sergeant Gilbert?"

Answer: "Correct."

"And Rover would then communicate to you things from Sergeant Gilbert?"

"Well, Rover -- Rover would communicate with me if your question is every time Sergeant Gilbert told him something that he'd tell me, I don't think that would be the case. But I was the sort of person that he spoke to and then I spoke to the Attorney General."

Is that correct?

HONORABLE WAUGH: Yes.

MR. CHERTOFF: Is it fair to say that with respect to any information, as far as you knew and your understanding was with Mr. Rover, any material or significant information he received from the State Police he communicated to you?

HONORABLE WAUGH: Ask that question again, please?

MR. CHERTOFF: As far as you know and as far as your instructions were to Mr. Rover, any significant or material information that Rover received from the State Police he communicated to you.

HONORABLE WAUGH: My instructions were that he should keep me informed of what was going on. I having read his, both his deposition and his testimony before the Committee, I'm not sure that I have the confidence that he was telling me everything.

MR. CHERTOFF: Well, you instructed him not to freelance, right?

HONORABLE WAUGH: Yes.

MR. CHERTOFF: And you instructed him to tell you everything of material importance, right?

HONORABLE WAUGH: Yes.

MR. CHERTOFF: Insofar as he told you thing, did you communicate those to the Attorney General?

HONORABLE WAUGH: If I thought it was significant and he needed to know, yes, I would.

MR. CHERTOFF: Is it clear to you from the meeting, that the -- on May 20th, that the State Police believed the consent-to-search numbers were not helpful and they wanted to find a way to avoid providing them if possible?

HONORABLE WAUGH: That was my sense of the meeting.

MR. CHERTOFF: Now, eventually -- to skip ahead a little bit, in late October 1997 the Department of Justice finally forced the issue with respect to the copies of the consent-to-search forms, right?

HONORABLE WAUGH: My understanding was that in October of 1997 the Justice Department asked for the documents again and they were given the documents shortly after that.

MR. CHERTOFF: Now, the documents they asked for were consent-to-search forms, the forms themselves, right?

HONORABLE WAUGH: Right.

MR. CHERTOFF: They didn't ask for any compilations of data, right?

HONORABLE WAUGH: Correct.

MR. CHERTOFF: And you didn't suggest or no one suggested at the Office of the Attorney General, to your knowledge, that anybody voluntarily give them any compilations?

HONORABLE WAUGH: Well, other than the document that was -- that I sent to the Attorney General in July of 1997, if you consider that a compilation that would come within what you're asking me, other than that, I think that's correct.

MR. CHERTOFF: So when we talk about that one of the responses which was -- I asked you earlier what was the -- what effort was made by people in the Office of the Attorney General to address the actual underlying problem with profiling, your response was, well, to cooperate with the investigation in the Justice Department. But it's also fair to say that the cooperation with the Justice Department didn't mean giving them a lot of information so they could figure it out, it meant waiting till they asked for specific things and then giving them kind of what was asked for and nothing more. Is that fair to say?

HONORABLE WAUGH: I don't think I would have phrased it that way, but my --but we were cooperating with them by giving them what they asked for.

MR. CHERTOFF: But not volunteering anything.

HONORABLE WAUGH: Well, again, leaving aside the July 1997 document which is a particular issue, I guess -- I guess that would be correct.

MR. CHERTOFF: And you knew, for example, from the original form document that you got from Justice, that they did request an analyses, studies and reports regarding searches, among other things?

HONORABLE WAUGH: I knew that it was in that document and I think if you look at -- let me find it, W-17?

MR. CHERTOFF: Yes.

HONORABLE WAUGH: On Page 2, number five: "Mr. Posner asked about whether the State Police has any computerized data base of information about auditing State Police traffic stop activity, we advised DOJ that they do not have this information in the computerized data base."

MR. CHERTOFF: But my -- the information request calls for analyses, not necessarily computerized analyses, but analyses relating to, among other things, effectuating a search. Is it fair to say that no one made an effort to comply with that request?

HONORABLE WAUGH: Well, I guess to some extent it depends on how you view that document and how you view -- how the Justice Department was going about its inquiry. That document was given to us as sort of a this is the type of thing we asked for. I believe that they then started asking for specific things over a period of time, including some things that they asked for after I left. They -- they raised at the time that that telephone call talks about, they raised the issue of analysis and their question was, do you have it in computer form? They didn't ask for it in hard copy.

MR. CHERTOFF: And therefore, because they didn't ask for it in hard copy, a decision was made not to volunteer anything in hard copy?

HONORABLE WAUGH: I don't -- I don't think that I would say that a decision was made in the sense that that suggests that there was a conscious decision as to, you know, thought process as to whether or not to do that. I would agree with you that it was not provided.

MR. CHERTOFF: Was there a general approach to the issue of dealing with the Department of Justice in Washington that was essentially give them what they specifically ask for but nothing more?

HONORABLE WAUGH: It was certainly give them what they ask for. I don't recall anyone saying don't give them anything else. When we get to the July document, you know, we could talk about that because it was my view that it should have -- that it should be produced and for reasons that I guess I'll have to explain, it wasn't.

MR. CHERTOFF: All right. So let's get to that.

I'm going to show you W-30. I'm going to show you this. This is a memo to you -- I'm sorry, to Peter Verniero from you dated July 29, 1997. It attaches copies of State Police documents, including one, patrol issues, concerns at Moorestown station. There's a pie chart attached to it. A series of other documents. And it concludes with an analysis on the last several pages, State Police issues and concerns, that among other things, lists a lot of statistics about 1995 searches and criminal activities. Now, do you remember receiving the underlying documents apart from the cover page?

HONORABLE WAUGH: I'm sorry. You mean --

MR. CHERTOFF: You got the reports --

HONORABLE WAUGH: I received a document and I sent it to the Attorney General. And if you're asking

me --

MR. CHERTOFF: Is it this document?

HONORABLE WAUGH: -- whether I recall today that this, that all of these pages were attached to the document, I would have to say no, I don't recall that. I don't know where -- I mean they're all Bates

numbered --

MR. CHERTOFF: Well, I mean I can represent

-- I'll represent --

HONORABLE WAUGH: -- subsequently, and if this is the document that was in my file, then that's the document I got.

MR. CHERTOFF: Okay. I'll represent to you that we've been informed by letter from the Department of Law and Public Safety which is to produce the document, that the document in the form which you have is the way it was in the file.

HONORABLE WAUGH: All right. Then that's how I received it.

MR. CHERTOFF: Okay. When you got the document, where did you get it from, do you remember?

HONORABLE WAUGH: I testified at my deposition that I thought I got it from DAG Rover and I now think that that is not correct. I think I got it from a Deputy in the Division of Law who must have been working on some sort of litigation, and I don't remember who it was.

MR. CHERTOFF: Do you remember how it came to you?

HONORABLE WAUGH: No. It could well be that somebody came up to my office and said here's a document that we've come across in the process of doing whatever it is they were doing and we thought you should know about it. And then I gave it to Rover.

MR. CHERTOFF: Okay. And then in addition to giving to him, what did you tell Rover when you gave it to him?

HONORABLE WAUGH: I said that -- and again, I don't remember specific dialogue, but I gave him the document and I said, I think this is probably something that we should produce. What do you think? I think he agreed with me. And I told him to hold onto it and I was going to find out from the Attorney General whether he agreed.

MR. CHERTOFF: And tell us what you did.

HONORABLE WAUGH: I sent -- what I did?

MR. CHERTOFF: Yes. Tell us what happened.

HONORABLE WAUGH: I know that -- I remember that George came back to me once and said, "What about the document?" And I said I don't know yet. I'm pretty sure that I went in to the Attorney General once and said what about this document and he said something like I don't know yet or I haven't read it yet. And then I lost track of it.

MR. CHERTOFF: Well, let me ask you this question. You sent this document to Mr. Verniero, right?

HONORABLE WAUGH: Right.

MR. CHERTOFF: And you told Mr. Rover you wanted to wait a decision on turning it over.

HONORABLE WAUGH: Right.

MR. CHERTOFF: You didn't make that decision, did you?

HONORABLE WAUGH: No.

MR. CHERTOFF: You sent it up to Attorney General Verniero to make that decision, right?

HONORABLE WAUGH: Well, if you read my memo, I sent -- I sent it to him and I said in the memo that I thought it should be produced, but I was checking that with Rover.

MR. CHERTOFF: And then you --

HONORABLE WAUGH: And then -- and as I said, I'm reasonably sure that I asked him once about it and he hadn't made a decision and then I lost track of it.

MR. CHERTOFF: So, you clearly sent it up to him, right?

HONORABLE WAUGH: Right.

MR. CHERTOFF: You told him you thought it should be produced.

HONORABLE WAUGH: Right.

MR. CHERTOFF: You talked to him about it.

You went in and talked to him about it.

HONORABLE WAUGH: I asked him -- as I said, I'm reasonably sure I asked him about it once and he said something like I haven't looked at it or something like that. I mean that would not have been the first time I've gone in to an Attorney General and said what about some issue and I've been told, you know, I haven't focused on it, I haven't looked at it yet. So, you know, I'm trying to be careful that I'm not transporting some conversation that I had at another time into this and that's my recollection.

MR. CHERTOFF: Well, when you went in to him, did he indicate he knew what you were talking about? What the document was? Or did he say what document?

HONORABLE WAUGH: Well, the problem I'm having is I remember going in to him about some document and he said he didn't -- some memo I had sent him, and he said he wasn't sure where it was and he'd find it and, you know, I don't remember whether it was this document or another document.

MR. CHERTOFF: Well, what --

HONORABLE WAUGH: But I don't -- I don't have a clear recollection of him discussing the document with me, if that's what you're asking me.

MR. CHERTOFF: Let me move off this for a second.

Was there another document relating to preliminary statistical data having to do with Perryville station that Mr. Rover asked you about producing in early 1997?

HONORABLE WAUGH: I know that there is such a document. I don't really remember discussing it with Mr. Rover. It's very possible that if he said to me, I have a document that relates to a roadway other than the Turnpike, and he didn't think it needed to be produced, that I would have agreed with him and that would have been it. If he had told me that the thought it should be produced, then I definitely would have gone to the Attorney General with it.

MR. CHERTOFF: And if he didn't take a position, what would you have done, made the decision yourself or gone to the Attorney General?

HONORABLE WAUGH: I don't know.

MR. CHERTOFF: Given that the Attorney General --

HONORABLE WAUGH: I mean it was -- clearly it was my practice to send documents like that if I had them to the Attorney General, which leads me to believe that I never actually had that document. It wasn't in my file.

MR. CHERTOFF: If you were told about a document and there was a question about production, would you have gone to the Attorney General about it? Was that your practice?

HONORABLE WAUGH: If it -- again, if I was told that it related to a roadway other than the Turnpike, which is what the Justice Department was looking at, it is quite possible that I would have said well, then, I guess it doesn't need to be produced.

MR. CHERTOFF: So you would have made that decision on your own?

HONORABLE WAUGH: As long as he was agreeing with me.

MR. CHERTOFF: And if Rover didn't take a position?

HONORABLE WAUGH: Then I don't know what I would have done.

MR. CHERTOFF: Would your practice have been to go up to the Attorney General?

HONORABLE WAUGH: Mr. Chertoff, I don't know how to answer that question because I don't remember the conversation. What I'm trying to say is that it's perfectly possible that if I was told about a document that related to a roadway other than the Turnpike, that I might have agreed that it didn't need to be produced. Now, you're asking me well, suppose he didn't agree with me? And I just -- since I -- I just don't know. I can't -- I don't know how to answer that question because I don't remember such a conversation.

MR. CHERTOFF: I think Mr. Rover's testimony here was not that he thought it didn't need to be produced, but that he went to you and asked you what should happen and you told him he didn't need to produce it. The question was whether that's a decision you would have made yourself or would you run it by the Attorney General?

HONORABLE WAUGH: If it was a document that I thought was not relevant because it didn't relate to the roadway that they were looking at, yes, it is conceivable I would have made that decision myself as opposed to a document that did relate to what they were looking at.

MR. CHERTOFF: Now, I want to come back to the document of July 29th. Your recollection now is somebody from a different Department or different Division --

HONORABLE WAUGH: Right.

MR. CHERTOFF: -- came to you with this document, right?

HONORABLE WAUGH: Right.

MR. CHERTOFF: And they came to you because they said to you in substance, we ran across this and we think it's -- we, although not directly involved in what you're doing, we think it's significant enough that we need to bring it to your attention.

HONORABLE WAUGH: That's how I'm reconstructing how I got it.

MR. CHERTOFF: So it comes to you with an understanding that even to the untutored eye of someone not deeply involved in the case, they can see it's of some importance, correct?

HONORABLE WAUGH: I guess so. I mean, yes, somebody brought it up to me because they thought I should know about it.

MR. CHERTOFF: Was that Michael LoGalbo?

HONORABLE WAUGH: Who?

MR. CHERTOFF: Michael LoGalbo, if you recall?

HONORABLE WAUGH: I don't recall knowing that person.

MR. CHERTOFF: Okay. You talk it over with Mr. Rover. You both agree it should be produced, right?

HONORABLE WAUGH: Right.

MR. CHERTOFF: And I take it you would have looked at it, right?

HONORABLE WAUGH: I certainly would have looked at the cover memo.

MR. CHERTOFF: And just to go through it, because I understand you don't remember the documents, but I want to just go through the substance to see whether this is the kind of thing that was important to you, subject matter that you recognized as being important at that time. You see the first set of documents relates to allegations of profiling that are actually based on complaints from the State Police themselves, right?

HONORABLE WAUGH: Right.

MR. CHERTOFF: I mean that's a little bit kind of like a man bites do story. It's a little unusual that the State Police themselves would raise the issue as opposed to some defendant in a criminal case who has a motive obviously to come up with legal arguments. So I take it that's the kind of thing that would have captured your attention, right? At this -- by now, by mid-1997.

HONORABLE WAUGH: Yeah.

MR. CHERTOFF: And then if we go -- and there's a lot of numbers and there's pie charts. And then if you go to the end, the last couple of pages, it's pretty clear that someone has done a statistical review for the year 1995 for the very police station which is the subject of the Soto litigation, right?

HONORABLE WAUGH: It's -- well, if you're telling me it's for 1995, I'll accept it.

MR. CHERTOFF: Well, it says right on it, "Criminal activities, 1995." The last two pages. "Court searches, 1995. Probable cause searches, 1995."

HONORABLE WAUGH: Where is that?

MR. CHERTOFF: It's the last two pages.

HONORABLE WAUGH: Of the whole document?

MR. CHERTOFF: Of the document.

HONORABLE WAUGH: Oh, that's not what was on the screen in front of me.

MR. CHERTOFF: I'm sorry. I'm looking at July 29, 1997. The last two pages of the document.

HONORABLE WAUGH: That's what it says.

MR. CHERTOFF: Okay. And if we go to the last page, it actually gets to the issue of searches, right, consent searches? Right?

HONORABLE WAUGH: Right.

MR. CHERTOFF: And by this time this issue of consent searches and the relationship with Maryland has been not only the topic of a memo from Mr. Rover of a couple months earlier, but actual full-blown discussion in May with the Attorney General and the State Police where the State Police indicate their concern about it, right?

HONORABLE WAUGH: Right.

MR. CHERTOFF: So would you agree with me that although you don't remember the documents themselves, this is precisely the kind of information that when you reviewed it would have leaped out at you as being of enormous significance?

HONORABLE WAUGH: Can I answer the question in my own way?

MR. CHERTOFF: Sure.

HONORABLE WAUGH: I remember getting the document and I read the document and I concentrated on the beginning of the document and I understood it. What I came away from the document was is as follows: Some minority troopers at the Moorestown station made the allegation that majority troopers were profiling. State Police looked at the issue, came to the conclusion that the activity of the minority and majority troopers was approximately the same and therefore concluded that there was not profiling. That was my understanding of the document. I didn't focus on all the statistics in the back. But as I said in my cover memo, July 29th, I thought it was a document that probably should go to the Department of Justice.

MR. CHERTOFF: And when Rover talked to you

-- I mean as far as you know, Rover read the document too, because you asked him to look at it for relevance, right? And you'll agree with me the only way you can tell relevance is to look at the document, right?

HONORABLE WAUGH: I'd have to assume that he read it.

MR. CHERTOFF: So both of you concluded it's relevant. It comes to you in an unusual fashion. You pass it on to the Attorney General. All that's correct, right?

HONORABLE WAUGH: Right.

MR. CHERTOFF: You go in later. He says he hasn't made a decision yet, correct?

HONORABLE WAUGH: I don't know whether he said that or he said he hadn't focused on it yet, but he had not made a decision.

MR. CHERTOFF: But there's no question that he was aware that he had gotten it and that you had gone in to personally remind him about it, correct?

HONORABLE WAUGH: I went in to remind him about it. You're asking me whether he acknowledged that he had gotten it and I just don't remember that. Obviously if he had looked at me and said I don't have the faintest idea what you're talking about, I probably would have made another copy of the document and given it to him. So at some level, he acknowledged that he knew that there was a document he needed to look at.

MR. CHERTOFF: Now, in the upper right-hand corner of the document of the first page -- go back to the first page -- put it up on the -- there's a little scribble there that says "9-4." Is that your handwriting?

HONORABLE WAUGH: No, I think it's my secretary's handwriting.

MR. CHERTOFF: And was that what you would typically do to tickle yourself in some way to come back to something?

HONORABLE WAUGH: Right.

MR. CHERTOFF: And so your usual practice then is I guess your secretary would on September 4 would give you this and say you wanted me to remind you about this?

HONORABLE WAUGH: She would -- I mean she would give it to me on or after September 4th.

MR. CHERTOFF: And do you have any reason to believe that she didn't follow her regular practice here?

HONORABLE WAUGH: No. And I think that's when I went to talk to the Attorney General about it.

MR. CHERTOFF: And after that, you didn't pursue it any further?

HONORABLE WAUGH: No.

MR. CHERTOFF: And he never got back to you?

HONORABLE WAUGH: Correct.

MR. CHERTOFF: And although Mr. Rover had asked you a couple of times about it, he dropped it?

HONORABLE WAUGH: Correct.

MR. CHERTOFF: Now, in connection with the issue of discovery, did you have a conversation with Mr. Rover -- did you have a conversation with Mr. Rover concerning the manner and pace with which you should respond to discovery requests?

HONORABLE WAUGH: I had two.

MR. CHERTOFF: Tell us about those.

HONORABLE WAUGH: The first one was when I asked him to work on the issue and one of the questions he had was whether he needed to drop everything he was doing at the ABC and I told -- I'm sorry, the Division of Alcoholic Beverage Control, and I told him that he didn't. That he, you know, when he got a request he should work on it and he didn't have to drop everything else.

At some point in the spring, and I don't recall whether it was in connection with the time that he was sending the patrol logs and documents of that nature, or whether it was later in the spring when he was sending the -- whatever the stop information was for those days that were chosen, I had a conversation with him and I don't remember what he said, but whatever he said led me to believe that he was sort of accumulating documents to go to the Justice Department but not sending them out. And I said, George, why are you doing that? And he said something to me about well, you told me I didn't have to drop everything. And I said, George -- and I don't remember my exact words, but I said, George, this is the Justice Department. If you don't give them what they want, they're going to serve us with a subpoena or they're going to sue us. That's not what I was telling you. I was telling you you had -- you didn't have to drop everything, but when you got something you needed to give it to them. And if I can try to explain it in terms of civil litigation, if you have 90 days -- 60 days to respond to interrogatories, what I was telling him or what I was trying to tell him was, if it takes you -- if it takes you a certain number of days to do that, do it. But I wasn't tell him hold onto the documents until the 60th day and then send them in. And I went -- I think I went back -- I think I asked him about it a couple of times afterwards to make sure he was following my instructions.

MR. CHERTOFF: I'm going to -- I guess here's my question to you if I stand back and look at the last ten minutes of questions and answers.

There was a -- you answered earlier in connection with the May 20th meeting when the question was, what steps were taken to deal with the problem, if there was a problem, in terms of correcting it? Your answer was: "Well, we were working with the Department of Justice. You know, we were assisting them and cooperating with them and that was going to be the solution." And yet in --

HONORABLE WAUGH: I --

MR. CHERTOFF: Was that --

HONORABLE WAUGH: I said that one of the things I had in mind is that we were trying to cooperate with the Department of Justice and they had said that they would look at the stuff and they would get back to us.

MR. CHERTOFF: But in doing that cooperation, you'll agree with me, first of all, nobody said let's give them something they don't ask for, let's just give them a lot of stuff and ask for their help. Nobody ever directed that be done, correct?

HONORABLE WAUGH: Right.

MR. CHERTOFF: The person that you designated and supervised to be responsible for their production, at the very least, misunderstood his obligation to produce and took your instructions as an invitation to drag his feet, is that fair to say?

HONORABLE WAUGH: I'm not sure what you mean by "at the very least."

MR. CHERTOFF: Well, in other words, you would agree with me that your impression is that Mr. Rover believed you had instructed him to take his time in terms of responding and put things on the back burner.

HONORABLE WAUGH: Right.

MR. CHERTOFF: And, of course, you left him on in place to do this production even after you cleared up the misconception, right?

HONORABLE WAUGH: Yes.

MR. CHERTOFF: Likewise, when the memo comes up that's been given to you by someone in another Division who was identified as important and you pass it up to the Attorney General and he doesn't react to it, nothing further happens even though you believe it should be turned over, is that fair to say?

HONORABLE WAUGH: Yeah. And it's fair to say I'm deeply embarrassed as I sit here and say that I lost track of a document that I thought should have been produced, but that's what happened.

MR. CHERTOFF: But I guess my question is, in your dealings with the Attorney General, did he convey any sense to you that your instructions were to actually actively go out and try to collect material and give it to the Department of Justice in order to get their assistance in dealing with the problem?

HONORABLE WAUGH: We -- no. We went down to the Department of Justice -- first was the phone call. Then we went down and talked to them. The understanding was that they would ask us for documents and we would give it to them. There was never any discussion that I recall of us doing anything other than responding to what their requests were.

MR. CHERTOFF: And at no point in time during the entire time you were involved in this from the beginning of the review in November of '96 up until your departure, at no time did anybody in the Office of Attorney General talk about conducting an actual review of the problem to determine whether, in fact, the consent-to-search data revealed instances of profiling?

Is that fair to say?

HONORABLE WAUGH: A separate review, that's correct.

MR. CHERTOFF: The entire discussion was in terms of negotiating with the Department of Justice in terms of the scope at their request, right?

HONORABLE WAUGH: I'm not sure I understand what you mean.

MR. CHERTOFF: The discussion about racial profiling that you participated in was centered upon negotiation and dealing with the Department of Justice in terms of the scope of their request, right?

HONORABLE WAUGH: If I understand your question correctly, there was an issue that was raised as to whether the consent-to-search data came within their -- the scope of their original discussion with us or whether it was an expansion.

MR. CHERTOFF: But in general --

HONORABLE WAUGH: There was a meeting to discuss that. I was of the view, and I think there's a memo where I said something to the Attorney General earlier on, that I was of the view that we should give them generally what they wanted. The State Police didn't want to produce those documents, as I understood their position. And the decision was made that when the Justice Department asked for them again, they would be produced. And they were.

MR. CHERTOFF: And wasn't the decision made to produce them, but to produce them with a statement that said that they were only being produced because they might have some relevance to showing your reasons for the initial stop, but not because there was any concession that consent to search was a relevant

issue --

HONORABLE WAUGH: As I testified at my deposition, that was over-lawyering. You know, you asked me before was there some thought that we would give the Justice Department the documents and say but you can only use them this particular way? Number one, I don't recall such a discussion. And number two, it would have been ridiculous to have such a discussion because you can't ask the Justice Department to do it. And they were being given the documents to do whatever they wanted with and we were over-lawyering and saying well, we're giving it to you because maybe they're relevant to what you said you were looking at. But there was no doubt in my mind and I don't think there was any doubt in anyone else's mind that when they got the documents, they would look at the consent-to-search issue.

MR. CHERTOFF: But the idea was to try, as far as possible, to get them to focus away from it, right?

HONORABLE WAUGH: No.

MR. CHERTOFF: No? Isn't in the letter of November 5th, which I'm going to put up, R-20...

Now, it says here, "For this reason, the State would ordinarily object to the production of these documents for use in the inquiry the Justice Department has described to us because they're outside of the scope. However, we've noted the consent-to-search form has a section labeled 'Reason for initial contact narrative' which usually contains an articulation of the reason for the initial stop. Thus, they do contain some ancillary information related to your inquiry and we'll agree to produce these reports solely for that reason."

Now, putting aside the fact that it's clear that at the end of the day the Department of Justice could ask for whatever they want to ask for and subpoena it.

HONORABLE WAUGH: Right.

MR. CHERTOFF: Would you agree with me that the effort of the letter is designed to try, to the extent you can do in a situation of being a recipient of a request, to try to limit the focus and not give any suggestion that you're willing to agree that consent-to-search data could be relevant to something involving profiling?

HONORABLE WAUGH: Absolutely not.

MR. CHERTOFF: So you think that --

HONORABLE WAUGH: The -- I think I said to you when you were taking my deposition that it's like

-- there were times when I would answer an interrogatory by saying, you know, I object to the question, blah, blah, blah, notwithstanding the objection. Here's the information. That, in my view, and maybe over the past couple of years that I've gotten a more mature view of it or a different respect of it, that's over-lawyering. But there was no doubt in my mind, and I don't think there was any doubt in anyone's mind, that when the Justice Department got those documents, they were going to do whatever they wanted with them and what that letter said didn't make a damn worth of difference. It was just sort of -- I mean maybe it was just face-saving or maybe it was something like that to say well, you know, we said before we weren't sure it was -- I think Rover said to them he wasn't sure it was relevant to what they were looking at. The bottom line, Mr. Chertoff, is they got the documents and they were going to do whatever they wanted with them. And, you know, it's foolish to think that that letter was an effort to persuade them that they should do something else with it. I mean it's just --

MR. CHERTOFF: Well --

HONORABLE WAUGH: You wouldn't -- when you were U.S. Attorney, if you got a letter like that, your reaction would have been oh, yeah, I'm going to limit myself to what you tell me, wouldn't it have?

MR. CHERTOFF: Well, I don't know if you want me to answer questions here, but let me move to something else.

Z-14 is a memo from George Rover to Paul Zoubek which is dated February 26, 1999. And it lists "Numerous documents I have not produced to DOJ, including the following: July 5th, 1996, IAB motor vehicle stop, audited at Moorestown station, Lieutenant Gilbert." Now, that's the document we saw earlier that's contained in the July 29th, 1997 memo.

As to that one, you will agree with me that there was essentially -- you believed it should be produced. Mr. Rover believed it should be produced. The Attorney General, it was put in his hands, he did nothing and it was not produced to your knowledge, correct?

HONORABLE WAUGH: And I didn't remind him about it.

MR. CHERTOFF: IAB -- number six. "Audit IAB Perryville, Washington station. Hunterdon County statistics. Gloucester County data base arrest data." I believe it was Mr. Rover's testimony that with respect to all of the decisions not to turn these documents over, he never made these decisions himself, he always presented them to you and you made the decision. Do you disagree with that?

HONORABLE WAUGH: I remember, because we just talked about it, the Perryville, Washington station document, if the Hunterdon County document was a similar document that also dealt with a highway not the Turnpike, it's possible that that could have, you know, I don't know whether he said I have a document or I have documents. And if he asked me about two documents at the same time, then my answer would be what it was before.

The Gloucester County data base arrest data, I had seen the document recently, but I don't ever remember seeing that document, and it certainly wouldn't fall under my definition of a document that didn't relate to the Turnpike. And I have absolutely no recollection of telling him not to produce it and I don't think I did.

MR. CHERTOFF: Would you agree with me that you -- that you were aware that Mr. Rover was getting statistical information from Sergeant Gilbert or others in the State Police during the time that you supervised Mr. Rover?

HONORABLE WAUGH: I was aware that he was -- he was getting information from the State Police. I don't know that I would go so far as to say that I definitely knew it was statistical in that -- to go back to the discussion at the May 20th meeting, the discussion as I recall it was that there was a similarity between the numbers that the State Police had and the numbers in Maryland. I don't recall anyone talking about specific statistics and I don't ever remember anyone telling me a specific statistic.

MR. CHERTOFF: Did you know that Mr. Rover had also gotten information from the State Police regarding the statistics concerning the individual troopers whose activities were the subject of the Soto case?

HONORABLE WAUGH: My understanding is that's the Gloucester County data base, arrest data. I did not know about that though.

MR. CHERTOFF: Is it -- is it -- I mean the testimony by Mr. Rover was any statistical information he got essentially he conveyed to you. Is it your position that that's not necessarily the case?

HONORABLE WAUGH: Yes. I mean if you'll look at my file, any document I got -- well, there may have been some documents I got that I didn't send to the Attorney General, but virtually every document I got, I sent to the Attorney General. I sent the Moorestown document to the Attorney General. If George had given me the Gloucester County data base, I would have sent that to the Attorney General. None of those documents, six, seven or eight, are in my file and as far as I know, I never had them. Because if I had, one, they'd be in my file; and two, I would have sent them to the Attorney General.

MR. CHERTOFF: Suppose he conveyed the information orally to you, it wouldn't be in your file, would it?

HONORABLE WAUGH: If, as I think I -- as I think is possible, if not more than possible, you know, likely, documents number six and seven he conveyed orally that he had some documents that related to other roadways as we discussed before, I very well might have told him that I didn't think they needed to be produced.

MR. CHERTOFF: Would you have told --

HONORABLE WAUGH: The Gloucester County data base, if he had said I have a document that relates to the southern end of the Turnpike, I would have wanted to get that document and I would have sent it to the Attorney General and I certainly wouldn't have told him not to produce it.

MR. CHERTOFF: Did you know whether he was getting ongoing data -- or when did you actually leave the Department to become a Judge?

HONORABLE WAUGH: I actually left in January, but it was, as I think I explained in my deposition, it was probably early to mid-November that one, I started working on the process of filling out forms and going to interviews and all that stuff. And two, my father was having chemo -- not chemotherapy, radiation treatments and I was taking time off to go to that.

MR. CHERTOFF: What year are we talking --

HONORABLE WAUGH: And from my --

MR. CHERTOFF: What year are we talking about, October of --

HONORABLE WAUGH: '97.

MR. CHERTOFF: Okay.

HONORABLE WAUGH: No, not October, November.

So the last document in my file, as I recall, was my memo to the Attorney General forwarding the two drafts of the letter to the Justice Department.

MR. CHERTOFF: So to the --

HONORABLE WAUGH: And then I know I went on vacation for a week after that.

MR. CHERTOFF: So to the extent there were, for example, documents relating to statistical studies of stops or searches for six months in '97 and six months in '98, ending in October of both years, you would have been gone by the time that material was generated, is that fair to say?

HONORABLE WAUGH: Well, I certainly would have been gone by the time anything having to do with '98 was generated. And if the '97 information was generated in '98, I was gone then.

MR. CHERTOFF: So -- but with respect to documents or statistics that were generated before, the only thing you specifically remember is the Moorestown statistics that we've talked about, correct?

HONORABLE WAUGH: I specifically remember that and I have a very general recollection of a discussion of one or two documents that related to other roadways.

MR. CHERTOFF: Now -- and, of course, you were present at the May 20th meeting where the issue of consent-to-search statistics was discussed, at least in general, if not in specific numbers, correct?

HONORABLE WAUGH: Well, you use the word "statistics" and statistics to me suggests numbers and my recollection of the discussion was that it was not a number discussion as much as similarity discussion. But with that caveat, yes.

MR. CHERTOFF: In other words, they didn't use a specific number, but it was clear they were talking about numbers or percentages being similar, correct?

HONORABLE WAUGH: They were concerned that their numbers were similar to Maryland's.

MR. CHERTOFF: Now, in connection with that meeting on May 20th or any other meeting where you participated, did you ever give the Attorney General advice that consent-to-search data was not legally sufficient to establish at least a prima facie case of racial profiling or selective enforcement?

HONORABLE WAUGH: I don't recall -- I don't recall saying that.

MR. CHERTOFF: Did the Attorney General ever in any meeting you attended turn to you and ask you for advice about what, if anything, he should do in terms of following up on consent-to-search numbers that had been talked about in the May 20th meeting?

HONORABLE WAUGH: Not that I recall.

MR. CHERTOFF: Were you --

HONORABLE WAUGH: He did ask -- I think he did ask me what I thought about the issue of providing the consent-to-search documents to the Justice Department, but I --

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

HONORABLE WAUGH: But if that's not your question, if you're talking about following up on statistics --

MR. CHERTOFF: I'm asking you, not in his capacity as someone asking what should be turned over to a litigation adversary, namely the Department of Justice, but in his capacity as manager and supervisor and constitutional officer designated to be over the State Police, in your presence or to your knowledge, did he ever ask anybody for advice regarding whether the consent-to-search data was significant in terms of establishing the existence of racial profiling?

HONORABLE WAUGH: I don't want to quibble with you, but he wasn't -- the answer to your question is no, but he wasn't in the habit of differentiating what hat he was wearing when he asked a question.

MR. CHERTOFF: Okay. In any respect --

HONORABLE WAUGH: But if your question is, did the Attorney General ever ask that question in my presence that I recall, my answer is no.

MR. CHERTOFF: And you certainly never advised him that the consent-to-search data was too inconclusive or too irrelevant to follow up upon in terms of determining whether there was selective enforcement?

HONORABLE WAUGH: I don't recall such a discussion.

MR. CHERTOFF: As a matter of fact, let me just turn back to one document which is that July 29th, document. And let me ask you now, using what you know now, would you agree with me that if one saw that of the 144 people stopped on the Turnpike who were asked to consent to search, 62 percent were minority and 30 (sic) percent were non-minority, in your mind would that be a sufficient disparity to warrant at the very least further examination of the facts to determine if there was some selective enforcement?

HONORABLE WAUGH: Knowing what I know now, I think I would agree with that.

MR. CHERTOFF: In fact, as the state of the law was back in 1997, would you agree with me that the statistical disparity, 62 percent and 38 percent, would be prima facie enough to warrant further inquiry with respect to racial profiling?

HONORABLE WAUGH: I don't know that I know what the state of the law was at that time. I knew what -- I knew what the legal arguments were in the Soto appeal.

MR. CHERTOFF: And you understand that in the Soto appeal as the law was laid out, once you came forward and showed a statistical disparity, the burden then shifts to establish or to explain away or to give a valid reason why that disparity occurs. Was that the state of the law at that time?

HONORABLE WAUGH: Mr. Chertoff, I haven't recently read the Soto brief and I'm not a criminal lawyer, so if that's what you're telling me, I'll take your word for it, but whatever the brief said. I was more familiar with it maybe then than I am now. I just don't remember.

MR. CHERTOFF: Let me ask it this way. Certainly, as of 1997 you were not in a position to say to the Attorney General of New Jersey that he could ignore the consent-to-search data or not pursue it further because in and of itself it didn't really, wasn't probative with respect to the issue of selective enforcement?

HONORABLE WAUGH: Well, you're asking me a question about something that I didn't think of and so it's hard for me to answer the question knowing what I

-- thinking of only what I knew in 1997. In hindsight, I wish I had done a lot of things differently.

MR. CHERTOFF: But you certainly never advised him that consent-to-search data was not probative?

HONORABLE WAUGH: I don't recall having any such discussion.

MR. CHERTOFF: Did he ask you or anybody in your presence?

HONORABLE WAUGH: I don't recall it being discussed.

MR. CHERTOFF: Now, after this Senate inquiry was announced, you had -- you did have conversations with Mr. Verniero concerning the matters that are the subject of this review, correct?

HONORABLE WAUGH: I had many -- I had discussions with Peter Verniero on a regular basis and there were times when we discussed the subject matter of the inquiry.

MR. CHERTOFF: And I believe you told us in the deposition that at least as of that point in time you had a conversation about the May 20th meeting in which Mr. Verniero indicated he didn't remember making a comment about the train tracks.

HONORABLE WAUGH: Right.

MR. CHERTOFF: And you told me you did remember it?

HONORABLE WAUGH: Right.

MR. CHERTOFF: And did he also discuss with you when matters concerning racial profiling "crystalized" in his mind?

HONORABLE WAUGH: I don't know that he used the word "crystalized" when he was talking to me, but I do recall that he said that his view of the issue changed in 1998 after the Turnpike shooting.

MR. CHERTOFF: And how did he come to say that to you in these conversations that I guess occurred since the fall of last year? How did it come up?

HONORABLE WAUGH: I don't remember.

MR. CHERTOFF: Since the deposition, which I guess was a few weeks ago, did you have any further conversation with him?

HONORABLE WAUGH: I've talked to him on the telephone three times and we did not mention the subject of this inquiry at all.

MR. CHERTOFF: And just one question with respect to the conversations you had concerning the train tracks and his testimony, did those occur before or after you were identified on the witness list as a potential witness in the case?

HONORABLE WAUGH: The witness list, I believe, came out in February? January? If it came out in 2001, it was before.

MR. CHERTOFF: So it would have been 2000.

HONORABLE WAUGH: Yeah. It was -- it was when the documents came out, I think.

MR. CHERTOFF: I have nothing further, Mr. Chairman.

SENATOR GORMLEY: Jo. Go ahead.

MS. GLADING: Judge Waugh, when Peter Verniero arrived at the Department of Law and Public Safety, did you bring him up to speed on the Soto decision or brief him on it in that transition?

HONORABLE WAUGH: I don't -- I don't believe I did. I can't guarantee you 100 percent that I didn't, but I don't recall having done it.

MS. GLADING: Do you know who else might have?

HONORABLE WAUGH: Well, it could have been -- I mean I assume he had transition discussions with Attorney General Poritz. I don't recall whether there was a transition book or if I saw it but it would not have been unusual for a transition book to have something like that in it. I think once he -- once he got there I would have talked to him about the areas of my responsibility, but I don't think I would have talked to him about this issue because it was sort of outside the area of my general responsibility.

MS. GLADING: Okay. Before Peter Verniero arrived in April of '96 when Mr. Fahy sent you the memo about reporting on the -- or he copied you on the memo reporting on various suppression motions around the state and the status of those motions, that memo also mentioned the development of an auditing process. Do you recall that in the memo? We discussed it during your deposition.

HONORABLE WAUGH: I'll take your word for it.

MS. GLADING: Okay. Did you have any discussions with Mr. Fahy or Mr. Rover about their participation in the committee that was chaired by Lieutenant Colonel Littles?

HONORABLE WAUGH: No. I was really a little

-- it's possible that I knew about it, but I was really a little surprised at the deposition when I learned that there was such a committee. And I don't know whether it was because I just didn't know about it or because I had forgotten about it.

MS. GLADING: So you would not -- would you have briefed Mr. Verniero on the existence of this committee and the work that it had done and any reforms it had proposed?

HONORABLE WAUGH: No.

MS. GLADING: Who might have, do you know?

HONORABLE WAUGH: I don't know.

MS. GLADING: Would Mr. Rover or Mr. Fahy have done that? Would they have gone directly to him with something?

HONORABLE WAUGH: Well, I don't recall -- I mean --

MS. GLADING: I'm sorry, Mr. Susswein or Mr. Fahy?

HONORABLE WAUGH: Susswein might have or Fahy might have. I just don't know.

MS. GLADING: If it was known as early as January of '97 in the draft of the letter to Loretta King that the stop rates were running about the same as the level in Soto and higher than other State Police stations, and there was discussion in that letter about the need to do a violator survey, what's your understanding of why a violator survey was not done?

HONORABLE WAUGH: I think the violator survey has always been something of in intractable problem because a simplistic violator survey on the Turnpike would probably show that 99 or 100 percent of the people are violating the speed limit, especially when it was 55, and therefore everyone would fall into the category and the thought was that there ought to be some way or we maybe wished or hoped that some way could be found to quantify types of violations and seriousness of violations. I mean as a general proposition, if you -- back then when the Turnpike speed limit was 55, if you were going 55, everyone was passing you. And if everyone is passing you at 55, then everyone is a violator.

MS. GLADING: So was the idea of a violator survey not necessarily a valid one to refute the statistics that the State was seeing?

HONORABLE WAUGH: No, it is a valid idea, but my understanding was, and I'm not a social scientist or a statistician, that it's not all that easy to come up with one that's meaningful. And, in fact, it's my understanding that one hasn't been done. Although I think I read in the newspaper that a user survey has been done in the last year or so.

MS. GLADING: And is it your understanding that the premise of a violator survey is that it would potentially refute high minority stop rates or consent search rates because it could show that minorities violate traffic laws more frequently or more egregiously?

HONORABLE WAUGH: Well, I don't know about -- I don't know whether I thought that. I think the idea was that it would give you a better idea of what the population of people who could be stopped was.

MS. GLADING: Well, doesn't that mean people who could be --

HONORABLE WAUGH: Yes, if that's what you found, I suppose your answer would be correct. I don't know that that's what you would find.

MS. GLADING: But that would be the reason --

HONORABLE WAUGH: But the issue was you want to find out what the -- they wanted to find out what the violators -- what a good violator survey would show.

MS. GLADING: All right. Let me clarify my question. And I'm not suggesting that that's what would be found. What I'm saying -- what I'm asking you is, wouldn't the only reason to do a violator survey be to determine that the numbers are not disparate in terms of the rate of which minorities are being stopped because minorities are breaking the law more frequently or more egregiously, traffic laws?

HONORABLE WAUGH: I'm having trouble with breaking the law because you could -- you could have one category of people stopped would be people whose taillights are out. And, you know, I suppose technically that's breaking the law and you could make the argument maybe that since minorities in our society are typically in the lower socioeconomic class because of past histories of discrimination or -- that they are more represented in that class of people.

MS. GLADING: We could determine that --

HONORABLE WAUGH: I mean I don't know that I can think of all the possibilities that you could have.

MS. GLADING: Actually that kind of a violator survey of non-moving violations, you could do right now based upon tickets, right?

HONORABLE WAUGH: No, because -- because the idea of a violator survey is to come up with the people who could be stopped, not the people who were stopped.

MS. GLADING: Okay. In the January 3rd, 1997 letter, did Peter Verniero ever ask you about the existence of ongoing statistical analyses as was indicated must exist in that letter?

HONORABLE WAUGH: In the letter to Loretta Kind?

MS. GLADING: Um-hmm.

HONORABLE WAUGH: I don't recall that we discussed it.

MS. GLADING: Did he have any discussion with you subsequent to that letter about the continuing high rate at which minorities were being stopped?

HONORABLE WAUGH: We may have, but I don't recall a specific discussion.

MS. GLADING: Can you tell me why George Rover was selected to be the liaison with the Department of Justice and the State Police?

HONORABLE WAUGH: Yes. Jack Fahy was the person who had handled this issue for a number of years and I don't remember exactly when, but certainly by the time the Legal Affairs unit was disbanded, he went back to CJ and he was in the State Grand Jury unit and that was a good opportunity for him. It was something he wanted to do and I think that he was sort of burned out on profiling. So then the issue became well, if it's not going to be Jack, who's it going to be? If the Legal Affairs unit in the Office of the Attorney General had still been there, then it would have gone to somebody else in that unit because if it wasn't, I had to try to think of someone else. George Rover was a DAG that I had hired into the Legal Affairs unit when I was the Director and at some point he left Legal Affairs I think before it was disbanded and went over to ABC, but he would come and visit me on a regular basis and say, you know, I'd really like to get back in OAG, is there something you can use me for? And when I had to think of somebody to do this, he occurred to me and I think I asked him if he would be in a position to do it. And if you look at -- there's one draft letter that he sent me where under his signature he put "Special Assistant to the Attorney General" and I crossed it out --

MS. GLADING: I saw that.

HONORABLE WAUGH: -- and I said nice try, because that's what he wanted to be, he wanted to be a Special Assistant to the Attorney General and that's not what I was offering him. I mean if -- what he really would have liked is for me to -- if somebody had said to me, you can hire somebody to be your assistant, I think he would have liked to come back into the OAG. That's not what I had to offer, but I did have this project for him to work on.

MS. GLADING: So he was not selected because of his expertise in criminal law or in Civil Rights law, right?

HONORABLE WAUGH: No. He did, as I understood it, when he was hired have experience in litigation.

MS. GLADING: I want to clarify something you testified to earlier. You said that you had your second conversation with Mr. Rover about what he interpreted to mean that he should drag his feet on producing documents to DOJ sometime in the spring. I assume you meant the spring of '97, right?

HONORABLE WAUGH: Yes.

MS. GLADING: He -- the documents indicate that -- well, at that point he was collecting documents for the 30 sample days, is that correct?

HONORABLE WAUGH: No. What I don't remember is there were -- early on there were some patrol logs and other things that were requested by the Justice Department and he gathered them up and was sending them out.

MS. GLADING: The examples, you mean, that Justice wanted to look at before they made their actual formal request?

HONORABLE WAUGH: Right. So it was either in connection with that or it was later in connection with the -- the information for the -- was it 30 days?

MS. GLADING: The 30 days, right.

HONORABLE WAUGH: Yeah.

MS. GLADING: Well, he didn't actually start sending information for the 30 days until June 17th. So if he was accumulating a box of information and not sending it and it was the 30 days, it would have been later than the spring, right?

HONORABLE WAUGH: What day in June?

MS. GLADING: June 17th.

HONORABLE WAUGH: Doesn't summer start on June 21st?

MS. GLADING: My point is that he was sending -- he just began sending documents on that day, but -- oh, when you had the second conversation with him he hadn't sent anything?

HONORABLE WAUGH: No. No, that's not what I'm saying. I don't remember exactly what it was that he said that sparked this conversation. And so that's why I'm saying it was either in connection with the first set of things or the second set of things. My sort of general recollection is it was in the spring but, you know, I don't know that I can be more specific than that.

MS. GLADING: Okay. Do you have any explanation for why then, according to Sergeant Gilbert's testimony, George Rover had most of the documents that were responsive by October and he sent them out over the course of the next seven months and finished sending them in May? Was that the --

HONORABLE WAUGH: May of '98?

MS. GLADING: Correct.

HONORABLE WAUGH: No, I don't have any explanation for that at all.

MS. GLADING: At the May 20th meeting, you testified I think that you knew that the State Police were concerned about the consent-to-search numbers but that nobody actually asked what the numbers were, right?

HONORABLE WAUGH: That's my recollection.

MS. GLADING: Okay. And that Peter Verniero made a comment suggesting that if remedial action -- if there was a sense that remedial action -- that the DOJ would seek remedial action, that he would consider that, is that right?

HONORABLE WAUGH: Yeah.

MS. GLADING: What prompted the discussion of remedial action? Was there any sense by individuals --

HONORABLE WAUGH: It was the discussion of the consent decree. In other words --

MS. GLADING: Let me ask the question this way.

HONORABLE WAUGH: Okay.

MS. GLADING: Was there any sense by the people in the room that remedial action and a consent decree were a very real possibility in this case?

HONORABLE WAUGH: My understanding of the State Police concern, as I think I testified, is that they -- their concern was that their numbers had some approximation to the Maryland numbers and therefore that the Justice Department would look for a consent decree. The Attorney General didn't just say no consent decree, period, end of discussion. He said what I said he said, and I don't remember his exact words, and that is that if the Justice -- and he told the Justice Department the same thing when we were down there, if they were asking for remedial measures, he would consider it but he wasn't inclined to sign a consent decree. And then there must have been some further discussion and that's when he talked about being tied to whatever it is he said he would have to be tied to.

MS. GLADING: Okay. Then let me ask this. If he would consider remedial actions, was there an understanding that remedial actions might be necessary or appropriate?

HONORABLE WAUGH: The understanding that I think we had was that it was the position of the State Police that there was not a major problem with racial profiling and that they were enforcing all of the things that had been done in the years before, beginning with the Dintino reforms up until the things that I -- it's my understanding were suggested after the Soto case came down, some of which were just making sure that the Dintino reforms were followed.

MS. GLADING: Well, if there was a sense that there was no problem and there was -- and everyone in the room felt secure in that representation, why would the State take the position that it would engage in remedial action if they didn't think it was needed?

HONORABLE WAUGH: Because maybe the Justice Department would think it was needed. I mean that's --

that was the discussion down in Washington, that they were going to look into the issue. In fact, if you look at my notes from the discussion with Mr. Rosenbaum, he said that they would look at the issue, then they would get back to us and they might talk about pre-litigation resolutions. And so when the Attorney General went down, he said if, you know, if when you're done you think there are remedial actions that need to be taken that we haven't taken already, and I don't know whether he phrased it exactly this way, we will very seriously consider them, but I have to tell you I'm not really that interested in a consent decree.

MS. GLADING: Okay. At this point at May 20th I guess you had the 30 dates.

HONORABLE WAUGH: Yes.

MS. GLADING: Was there any sense there was a need to go and look at the data? New Jersey needed to look at its own data to determine whether or not it had a problem and the information that it was going to be sending to DOJ?

HONORABLE WAUGH: I don't recall any discussion like that.

MS. GLADING: In the memo that George Rover sent you on April 22nd, he has a lengthy -- he engages in a lengthy discussion about the need to perhaps educate DOJ about the conflicting messages coming from Civil Rights and from Drug Enforcement Agency. Do you recall that discussion?

HONORABLE WAUGH: I do.

MS. GLADING: In your deposition you testified that -- and he attached some information I think from DEA. You testified that "I don't think I read this information that carefully because I wasn't really particularly persuaded that this was something we should be doing."

HONORABLE WAUGH: That's right.

MS. GLADING: I'm wondering why then you list it as an item of discussion on the May 20th agenda?

HONORABLE WAUGH: Because he had suggested it and therefore it was an item that needed to be considered.

MS. GLADING: So was it discussed?

HONORABLE WAUGH: I don't recall a discussion of it, but I would have to assume that we probably went down the agenda and I certainly know or at least I'm pretty sure, that we never did that. And whether that decision was made at that meeting or not, I don't know.

MS. GLADING: Okay. And earlier when you

testified about Justice not sending a target letter. You had actually engaged in a conversation with Justice about them not sending a letter, right? HONORABLE WAUGH: Well, I don't know that they refer to it as a target letter, but at -- I called, I assume Mr. Rosenblum, because he is the person I had spoken to, and said the Attorney General has asked me -- you know, I don't remember the dialogue exactly, but I would have said something like, the Attorney General has asked me to call you. He wants to come down and meet with the Justice Department, and he's asking that you not send out any sort of letter, until that's been done. And, his answer was, fine.

MS. GLADING: Okay. And then, you advised the Attorney General, in an E-mail, on November 18th, "Please tell Peter that the U.S. Department of Justice is willing to defer sending a letter confirming that they are investigating profiling by State Police, in order to meet with Peter, to discuss the investigation." And then, they had asked for possible meeting dates. Is that correct?

HONORABLE WAUGH: I did send that E-mail to his secretary.

MS. GLADING: When you left the Department, I understand that your transition out was a little bit non-traditional because of other issues. But, did you brief anyone, or bring anyone up to speed on the status of the Department of Justice investigation?

HONORABLE WAUGH: I don't think so. And, And, I think the reason for that was not so much my personal circumstances as that I was leaving, and I know, at some point, I learned that the First Assistant Attorney General was leaving. And, I don't think we knew who was taking our place. So, I don't think there was anyone to talk to. That, at least, is my recollection.

MS. GLADING: Did you subsequently ever receive a phone call from David Hespe, asking for -- to be updated on the status of the investigation?

HONORABLE WAUGH: No. I don't think I've -- well, I'm pretty sure I've never talked to David Hespe on the phone. And, I'm not sure that I've ever talked to him in person, other than maybe saying "Hello."

MS. GLADING: Did you talk with Rover before you went on vacation in November, to advise him that you were leaving, and probably not returning?

HONORABLE WAUGH: I wasn't leaving, and not returning.

MS. GLADING: You were --

HONORABLE WAUGH: When I went on vacation, I did not know that I was going to be nominated.

MS. GLADING: Okay.

HONORABLE WAUGH: After, when I got back -- see, I don't know how long an answer you want. My father used to do judicial evaluations for various governors. In August, he --

MS. GLADING: Not that long.

HONORABLE WAUGH: All right.

MS. GLADING: When --

HONORABLE WAUGH: He got a letter from the governor, and I don't know whether -- and, that said that she was going to nominate me. And, I don't know whether he got it when I was in Europe, and he called me, or he got it after I was in Europe, and he spoke to me. But, when I went on vacation, I did not know that I was going to be nominated.

MS. GLADING: Okay. Did you ever have a conversation with George Rover, telling him that you were not going to be his supervisor on this issue, any longer?

HONORABLE WAUGH: I assume that I must have. He's --

MS. GLADING: Okay. Do you recall --

HONORABLE WAUGH: He went to my farewell party, and he -- you know, everyone knew what was going on. So, I must have had some discussion with him.

MS. GLADING: So, how did you leave it, at that point? Was he going to be reporting directly to the Attorney General, on this issue?

HONORABLE WAUGH: I don't really remember that discussion. Maybe he was, because I really don't know -- I really don't know when the decision was made, as to who were going to be the new -- that the people replacing me and Ms. Mintz. And, in fact, I think that they didn't -- I don't think anyone was called Executive Assistant, Attorney General, after I left.

MS. GLADING: I don't have anything else, Mr. Chairman.

SENATOR GORMLEY: Senator Robertson, then Senator Lynch, then Senator Girgenti.

SENATOR ROBERTSON: Thank you, Mr. Chairman. Good afternoon, Judge.

HONORABLE WAUGH: Good afternoon.

SENATOR ROBERTSON: How many lawyers are there in the Division of Law and Public Safety, Department of Law and Public Safety?

HONORABLE WAUGH: Now?

SENATOR ROBERTSON: I'm --

HONORABLE WAUGH: I'm sorry. There are hundreds.

SENATOR ROBERTSON: There are hundreds?

HONORABLE WAUGH: Right.

SENATOR ROBERTSON: So, in essence, it's a very large law firm, really?

HONORABLE WAUGH: Yes.

SENATOR ROBERTSON: And, you had an executive position in this very large law firm. Now, normally -- I don't know, you were engaged in private practice until about April of 1989, correct?

HONORABLE WAUGH: Right.

SENATOR ROBERTSON: In what sort of a firm was that?

HONORABLE WAUGH: It's a sort of a general -- it's called Smith, Stratton, Wise, Heher, and Brennan. It was in -- it's in Princeton, and it does litigation, business-type stuff, trusts and estates. I did the litigation.

SENATOR ROBERTSON: Okay. So, there were various departments within the law firm?

HONORABLE WAUGH: Right.

SENATOR ROBERTSON: And, when you're dealing with a law firm that has various departments, isn't it customary that when a problem comes in the door, you send it to the right department? If an anti-trust matter comes in the door, you don't send it to trusts and estates. Doesn't that sound correct?

HONORABLE WAUGH: I would agree with that.

SENATOR ROBERTSON: As a matter of fact, there was even a -- there's even a canon of ethics, as I recall, that said that you're not supposed to take on a case, or a responsibility, as an attorney, if, in fact, you don't have the background for it. If you're a real estate attorney, for instance, you shouldn't be doing murder cases, things of that sort. Regardless of the canon of ethics, is that your understanding, however?

HONORABLE WAUGH: Yes.

SENATOR ROBERTSON: The reason I ask question is because it concerns me that the Department of Justice came in with what might have been an important investigation as to what was going on in the State Police, in the State of New Jersey. Your response was to farm that out to a fellow whose experience -- had no criminal experience, and was in the Alcohol -- Alcoholic Beverage Control area. In retrospect, do you think it would have been better to bring in somebody who would have had some experience in the criminal law area?

HONORABLE WAUGH: In retrospect, yes. But, I have to qualify that by saying that, I guess, to some extent, I didn't view it as criminal litigation. I mean, certainly, the Soto appeal was. But, a -- something like this, with the Civil Rights Division of the Justice Department, is really a civil litigation. But, I certainly agree with you that it would have been much better, especially in hindsight, to have someone with some criminal law background.

SENATOR ROBERTSON: Well, what was your assessment, at the time, as you began to know more about the types of numbers that might be out there, or even the possibility that there existed some sort of a survey, or study, that had been done, within the State Police? What was your -- what was your determination, if any, with respect to the possible liability to the State of New Jersey, with respect to the obligation to make discovery in the Soto case?

HONORABLE WAUGH: I really didn't think of it. I wasn't focused on that issue. I -- yes, I did edit the Soto brief, because one of my concerns was to make it clear, in the Soto brief, that we weren't, one, defending -- primarily, that we were not defending racial profiling, as a practice. In other words, it was not our position that you can profile. And, because it was being circulated, and if somebody circulates something to me, I'll edit it. But, I wasn't involved in the -- I wasn't an attorney on the Soto case, as far as I was concerned. And, it just never occurred to me. I mean, I heard Mr. Buckman testify today. And, that's really the first time that it registered with me that, gee, maybe there's an issue, because maybe the discovery issues in a criminal case are some -- are different than they are in a civil case.

SENATOR ROBERTSON: And, you hadn't really had a background in the criminal law, as such?

HONORABLE WAUGH: No.

SENATOR ROBERTSON: And, I take it, to the best of your knowledge, it hadn't occurred to Mr. Rover, either? Is that correct?

HONORABLE WAUGH: He certainly never discussed it with me.

SENATOR ROBERTSON: All right. And, he didn't have any background in criminal law either --

HONORABLE WAUGH: None.

SENATOR ROBERTSON: -- before this assignment?

HONORABLE WAUGH: Not that I know of.

SENATOR ROBERTSON: Now, the Office of the Attorney General, among other things, is the lawyer for the State of New Jersey. Is that correct?

HONORABLE WAUGH: I don't want to quibble with you. The -- there's the Department of Law and Public Safety. And, the Department of Law and Public Safety has a number of divisions. One of those divisions is the Division of Law. And, as a general proposition, the Division of Law is -- provides counsel to the State, and State government agencies. The Office of the Attorney General is sort of the Attorney General's personal staff, and some administrative people. And, there was, at one time, an entity called Legal Affairs. And, that entity provided legal advice to the Department, as an employer, or as an entity that might contract with people, and to the State Police. And, I don't want to get caught up in -- you know, people say the Office of the Attorney General -- and, generally, by that, they just mean, you know, all those people over in the Justice Department, the Justice Complex. To me, Office of the Attorney General is a more confined group of people. So, I don't want to get hung up on that.

SENATOR ROBERTSON: Did it ever occur to you, as you began seeing some of the data, or hearing some of the numbers, that the State of New Jersey might be exposed to civil liability, in the form of a class action, or some other form of lawsuit, on behalf of innocent motorists, who had been stopped and searched under circumstances --

HONORABLE WAUGH: I don't --

SENATOR ROBERTSON: -- that might be considered racial profiling?

HONORABLE WAUGH: I don't remember thinking that.

SENATOR ROBERTSON: Did it occur to you, or to Mr. Rover, to anyone else, to call up the Division of Law, and have someone come in and make that assessment?

HONORABLE WAUGH: I can't tell you what occurred to other people. I can tell you that it did not occur to me.

SENATOR ROBERTSON: Is it your experience, in private practice, that when a matter comes in to a large law firm, whether or not it's transactional in nature, or civil in nature, or criminal in nature, that as these -- excuse me, that as questions arise, it's common for the attorney in charge to pick up the phone and contact the different, other departments within the law firm, to find out if anything can, or should be done, with respect to particular questions?

HONORABLE WAUGH: I'm familiar with doing that. I mean, your prior question was, did it occur to me that there were issues of liability? And, I think my answer was, "No." And, therefore, it didn't occur to me to ask someone to look into it. If it had occurred to me, then I might have.

SENATOR ROBERTSON: See, the reason I'm asking these questions is that one of the things that we have to be concerned about, as Senators, and representing the people, representing taxpayers, is the extent to which all those folks over in the Hughes Justice Complex, are talking to each other enough, to keep the State of New Jersey out of trouble. Whether it's liability with respect to the Division -- to the Department of Justice in Washington, or liability in a Civil Court, in a class action, or otherwise. That's the reason I was asking these things. Drawing your attention to the May 20, 1997 meeting, as you began to hear some of the statistics that came in, whether it was at that meeting, or subsequently, did you develop an opinion as to whether or not racial profiling was happening on the Turnpike?

HONORABLE WAUGH: I don't believe that I ever came to the conclusion, at that time, that racial profiling was a pervasive problem. I think, there was always the issue of whether there were some troopers who weren't doing what they were supposed to be doing. But, in terms of it being a pervasive practice, or, I think, what the attorney -- what Attorney General Verniero eventually concluded, in the interim report, no, I didn't reach that conclusion. I think, if I had, I would have spoken up.

SENATOR ROBERTSON: At the time, what, if anything, was the most troubling statistic, or fact, that crossed your desk, or crossed your mind, or happened at a meeting?

HONORABLE WAUGH: I don't know if I can answer that question.

SENATOR ROBERTSON: Did you take note of the fact that there was such a high incidence of consent searches done on minority drivers, as opposed to non-minority drivers, during the period of time?

HONORABLE WAUGH: I -- I knew that there was the concern about the -- that number that was talked about at the May 20th meeting. I don't know that I ever saw any statistics, unless that is -- there is some statistics that address that. And, the document that's attached to W-30 --

SENATOR ROBERTSON: Um-hmm.

HONORABLE WAUGH: But, as I said, if you read the document the way I read it, which was the cover memo, and I'm not a numerate person, so I really didn't look at all the attachments in terms of statistics. But, if you read that -- the theory, as I understood it, of that memo, was that there were minority State Troopers who said the majority troopers are profiling, and, presumably, we're not. And, State Police went out and looked into it. And, I don't know whether they did just stops, or they also looked at consents to search. And, they concluded that there was no significant statistical difference. And, therefore, they concluded that there wasn't a problem. There's a certain logic to that, whether on -- in hindsight, and pouring over the document, the way we've been doing, people have been doing, for the past however many months, that logic disappears. But, you know, on July 29th, 1997, that's how I read the document.

SENATOR ROBERTSON: Well, we can certainly understand the concern, in the Committee here, because we're pouring over the documents a lot -- let's put it this way, the documents have been in our hands a lot less time, than those documents were in the hands of the Attorney General's Office. We're involved in this in a matter of weeks, when Mr. Fahy was involved in this for a matter of years. So, that's why we have a concern about the conclusions that are being drawn from these documents by everybody, up and down the line. Can you, as you sit there, now, and observing what you've had an opportunity to observe, with respect to the numbers, as they came in, can you tell us why there was no investigation as to whether or not racial profiling existed?

HONORABLE WAUGH: I think the answer to that, and in hindsight, it may not be an entirely satisfactory answer, are two things. One, the State Police kept assuring us that there was not a problem. And, two, and I understand that this statement could be looked at with some skepticism, but it's the truth. And, it's what I felt. That ultimately, the Justice Department was going to get the documents that they were asking for. And that, if they felt that there was a problem, they would come back to us. Now, there's this -- I'll call it schizophrenic relationship, where you're the agen -- you know, we're the agency, and we're also the lawyer for a sub-agency. And, you know, I can see how, in this particular case, that relationship didn't work particularly well. But, my view, at the time, was that the -- that ultimately, the Justice Department was going to get the documents. And, if you look at what was sent to them in November, or what -- I don't know when it was sent. But, what we said, in the November -- I guess I don't have it. The November, 1997 letter, where we said we would send them, or we did send them the consent to search documents, that -- those were documents which, if analyzed, presumably would have come up with the same numbers that were in some of these other reports, and therefore, the Justice Department was getting that information.

SENATOR ROBERTSON: Well, but if you're at a meeting in May of 1997, and you're being told by people who have looked, in more detail, at these documents, that the numbers are on a par with the State of Maryland, which had already to be found to be engaging in some --

HONORABLE WAUGH: I don't -- I don't want to -- I'm sorry. I'm interrupting.

SENATOR ROBERTSON: No, that's okay. I was just going to say that, why, then, doesn't that suggest to you that there's a serious question to get to the bottom of?

HONORABLE WAUGH: I can answer that question as follows: One, and this -- I don't want to quibble, again, but the -- my understanding is that Maryland was never found to have been engaged in a racial profile. There was a lawsuit, and they entered into a consent decree. I don't know why. I never, you know, talked to anyone in Maryland. I never participated. So, I don't know why they did that. But, certainly, they did that. But, the State Police continually represented that profiling was not a major problem, and that they were addressing the issue in the way that had been set out by various procedures, starting with what I'll call the Dintino reforms, through when -- after the Soto decision came down, I think there was a -- the State Police Superintendent sent out a document that everyone had to read and sign, and there were training programs. And, that's what we were being told. In hindsight, which is always 20/20, I certainly wish that I or -- you know, it would have been nice if it could be me, because then I could be the hero. But, somebody else had said, gee, maybe we should go beyond what the State Police is telling us, and we should find some independent way of doing that. I wish that had been done. But, it wasn't.

SENATOR ROBERTSON: People who were brought in to take a look at this matter, the team that was brought in, one of the things that strikes me, and maybe my -- maybe my recollection isn't correct on this -- was there anybody of color among the team? Anybody who might be able to sit in a meeting, and say, hey, gee, guys, you know what, maybe it's not just about surviving the next letter from the Justice Department. Maybe it's not just about surviving the next appeal in the Soto case. Maybe it's about whether or not it's fair for folks to be driving on the Turnpike, and worry about being searched.

HONORABLE WAUGH: Well, one, I was concerned about that issue, and I think other people were concerned about that issue. But, obviously, I'm not a person of color. To answer your question more specifically, it -- I'm not sure what committee, or group, you're talking about. The group that was set up by, I guess, Attorney General Poritz, or somebody at her request, that Mr. Fahy participated in, was chaired, as I understand it, by Major Littles, who is an African-American. And, I know that I have seen some indication that Assistant Attorney General Ramey was involved in some discussions, after I left. And, he is of African-American descent.

SENATOR ROBERTSON: You talked, before, about the initial meeting with the Department of Justice, and the fact that they had given you sort of a blank letter, and said, these are the kinds of documents that we normally request in reviews of this sort. Do you remember that?

HONORABLE WAUGH: Right.

SENATOR ROBERTSON: Was that blank letter from the Department of Justice considered, by New Jersey, to be a request for information?

HONORABLE WAUGH: I think, to some extent, that was somewhat amorphous, and it probably -- I mean, maybe it shouldn't have been. But, the way -- the way things happened, as I understand it, is that we received that document, and the letter from Ms. King was sent back from the Attorney General, and that enclosed some documents. And then, a course of conduct developed, whereby -- between Mr. Posner and Mr. Rover, that the Justice Department would ask for specific information of the type that was on that document. And, it went on like that through -- from things that I've seen, I think, in 1998 they specifically requested -- well, that's -- it's not a document. But, at some point, they specifically requested permission to speak to troopers. And, they requested copies of audits.

SENATOR ROBERTSON: So, I take it, then -- it was a question of these are the sorts of -- is this a fair statement of the position of the Department? Well, these are the sort of documents that you request, generally? And, when you request them, we will comply?

HONORABLE WAUGH: Senator, I don't think anyone phrased it quite like that. I think it was -- but, I think that's the way it happened, that the Justice Department asked for information in bits. You know, they -- first they -- they asked for some preliminary information. Then they wanted the stop information. Then, ultimately, they came back to asking for the consent to search data. And, I don't know what they asked for, specifically, after I left. Although, I've read that they asked for audits.

SENATOR ROBERTSON: With respect to the Department of Justice, what was the State's position between the time that they first became aware of the Department of Justice's concern, all the way up until the release of the interim report? What was the State's position, with respect to the existence, or non-existence, of racial profiling?

HONORABLE WAUGH: I can't speak, after I left.

SENATOR ROBERTSON: Okay.

HONORABLE WAUGH: But, my understanding of the position was, one, that racial profiling was not to be done. Two, that there was no official policy of racial profiling. Three, that as far as we knew, there was no pattern and practice of racial profiling. Is that three?

SENATOR ROBERTSON: I think.

HONORABLE WAUGH: And, four, there is always the possibility that there are troopers who are not following orders. And, that was something that the State Police need to be vigilant about. My understanding is, from having read the interim report, I think, at the time it came out, that that position changed, based upon, you know, the reasons that were expressed in the report.

SENATOR ROBERTSON: You indicated that you left the Department, finally, in January of '98. When had you been notified of the Governor's interest in nominating you for a judgeship?

HONORABLE WAUGH: Sometime in November.

SENATOR ROBERTSON: Of '97?

HONORABLE WAUGH: Yes.

SENATOR ROBERTSON: So, between November of '97, and January of '98, two months later, you were able to fill out the Gubernatorial questionnaire? You were interviewed by the Counsel's Office?

HONORABLE WAUGH: I don't know that I was interviewed by the Counsel's Office.

SENATOR ROBERTSON: Oh. Okay.

HONORABLE WAUGH: I have -- I don't know how relevant this is, but I think I've had four four-ways. One when I was hired, and three judicial four-ways. I was -- I went through the whole process, but was never nominated during the Florio administration. I went through the process, to some extent, I think, including a four-way, when Attorney General Poritz was the Attorney General. And then, finally, in 1997 and '98, they were finally able to nominate me.

SENATOR ROBERTSON: And, just finally, Mr. Chairman, one little area, here, about the Violator Survey. You had indicated, before, that you had wished, or hoped, that some way could be found to put that sort of a survey together. One of the things I'm perplexed about, as I listen to the same thing being said by a number of people, about how important the survey is, is why is a baseline survey so difficult to do? I mean, and this is, if you happen to know. I'm not saying that you had the responsibility for it. But, why is a baseline survey so difficult to do, that statisticians, or experts in the field can't come up with a model that can be used?

HONORABLE WAUGH: My understanding, and I'm not a statistician, I'm not a numerate person, is that a -- what I'll call a simplistic base survey would be, you know, count the number of people that are speeding.

SENATOR ROBERTSON: Well, you can count the number of people going 55, 65, 75, 85, and so forth.

HONORABLE WAUGH: Well, that's -- my understanding is that's when it becomes more complicated about how you're going to do that, how you're going to work in the people who have other violations, who were, you know, tailgating, who were riding in the left lane. That's really the extent of my knowledge.

SENATOR ROBERTSON: Okay. Thank you, Judge Thank you, Mr. Chairman.

SENATOR GORMLEY: Senator Lynch?

SENATOR CAFIERO: He's not here.

SENATOR GORMLEY: Girgenti's here?

SENATOR GIRGENTI: Thank you very much. I just have a few questions. Good afternoon, Judge. Regarding the July 29th memo, you said that you'd articulated to your secretary, to remind you of the memo on September 4th?

HONORABLE WAUGH: Right.

SENATOR GIRGENTI: As indicated by the 9/4 written on the cover sheet? Why did you decide to let five weeks laps until the memo was again brought to your attention?

HONORABLE WAUGH: Because I sent out the memo at the end of July. And, I know there was some period of time, and it was four or five days, not too long after that, when the Attorney General was on vacation.

SENATOR GIRGENTI: It was --

HONORABLE WAUGH: Then -- there's --

SENATOR GIRGENTI: Go ahead.

HONORABLE WAUGH: Then, after the Attorney General came back from vacation, a Deputy Attorney General who reported to me, and who was also -- happened to be my wife's best friend, died very suddenly. And, that was a -- it was -- it took up some time. And, that -- I mean, that's the best answer I can give you.

SENATOR GIRGENTI: Yes, because I was just -- when I looked at it, it seemed to be an inordinate amount of time to ignore a document of that importance. You know, a five-week period. And, you said, around that time, I believe it was September 4th, you went to the Attorney General's Office to remind him of the document?

HONORABLE WAUGH: That's -- that's my recollection. As I said earlier, I've gone to the Attorney -- to various Attorney General's Office, to remind them of various things, where I was looking for an answer. And, I always have a concern that I'm remembering one thing, when it should be another. But, I'm pretty sure that I went -- that I spoke to him on at least one occasion, and said something like, "We need to make a decision about this document." And, he said, "I haven't focused on it." Or, something like that. "I'll get back to you."

SENATOR GIRGENTI: Did his lack of attention to the document disturb you any?

HONORABLE WAUGH: No, because I -- there are times when there is a lot of stuff going on in the Attorney General's Office, and people are focused on a lot of stuff. And, it's not that -- it's not really all that rare, when you have to go back. What disturbs me is that I didn't keep going back.

SENATOR GIRGENTI: Okay. Now, regarding your hiring, I think it was touched on, before, of George Rover. You were concerned that he had a reputation of freelancing, as you said before? Can you elaborate about that? And, how did he develop that reputation?

HONORABLE WAUGH: I don't have -- I don't know if I can answer that, exactly. There -- when he worked for me, he worked on a situation involving Belmar, and there were times when I thought that I would have liked him to know a little bit more -- I would have liked for him to be letting me know a little bit more of what was going on, and that's why, when I spoke to him, I really wanted to make it clear that I wanted to know what was going on.

SENATOR GIRGENTI: So -- but, he did have that reputation? Or, is that your personal ---

HONORABLE WAUGH: It was a -- I mean, to some extent, it was a joke between us. But, yes, he did have that. And, I think he -- I don't want to be unfair to him. But, he was someone who sometimes liked to go out and shmooze. And, I wanted him -- I wanted to make sure that he knew that I wanted to know what was going on.

SENATOR GIRGENTI: All right. Had you worked with Rover on other matters prior to the D.O.J. inquiry?

HONORABLE WAUGH: He worked for me when I was Director of Legal Affairs. And, in fact, I hired him.

SENATOR GIRGENTI: All right. And then, so, why was Rover transferred from the Office? I believe you might have said that, before. The Attorney General, to ABC?

HONORABLE WAUGH: I believe that he was not happy in Legal Affairs, at the time, and that he knew John Hall, who was then the Director of ABC, or the

Acting Director of ABC, and that he talked to him about a position.

SENATOR GIRGENTI: And then, why was he eager to return? You said that he wanted to come back and work with --

HONORABLE WAUGH: I think he liked to be -- I want to say I think he liked to be close to the flame. I think he wanted to come back and be in O.A.G.

SENATOR GIRGENTI: All right. And then, just finally, you may have covered this, earlier, when you spoke. Just -- you were talking about the January 3rd, 1997 draft of the D.O.J. letter. And, you said you did not recall any discussion with Verniero about the continuing high minority stop rate, I believe.

HONORABLE WAUGH: Right.

SENATOR GIRGENTI: And, or about why Verniero wanted to delete that passage that was pointed out to you. Did you ever find out why it was deleted? Or, did you ever question it? Or --

HONORABLE WAUGH: I don't recall discussing it, at all, with him, which would not be unusual in the sense of how it would happen is that we would send drafts back and forth. And, if he didn't want to discuss it with me, it might just -- you know, it would arrive in my in box, and I would tell my secretary to re-type it.

SENATOR GIRGENTI: But, you didn't have a --

HONORABLE WAUGH: If your question is, did I ever -- did I look at it, see the change, and go to him and say, "Why did you do this?" I don't remember doing that.

SENATOR GIRGENTI: And, you had no reaction when you saw it? Did you, at that time, realize that that had been deleted? Or --

HONORABLE WAUGH: I don't remember having a reaction. But, it was four years ago. And, I just don't remember.

SENATOR GIRGENTI: Okay. Thank you.

SENATOR CAFIERO: Senator Zane?

SENATOR ZANE: Yes. Judge Waugh, I think at the opening of your testimony, you indicated that Justice Verniero, then Attorney General Verniero, had said to you, handle the issue regarding racial profiling. Isn't that correct? At the beginning of your testimony.

HONORABLE WAUGH: Yeah. I -- I think, after we met with the Justice Department, he told me he wanted me to coordinate the providing of the information. Not that I was going to do it myself. I was going to get somebody else to do it. And, I would keep him informed as to what was going on.

SENATOR ZANE: And, that was when?

HONORABLE WAUGH: That would have been, probably, in December of '96.

SENATOR ZANE: And, the issue was racial profiling, correct?

HONORABLE WAUGH: Correct.

SENATOR ZANE: You indicated, at the Justice Department meeting, that then Attorney General Verniero indicated to the people from the Federal government that were present that there was no official position proving racial profiling. Isn't that what you testified to, earlier today?

HONORABLE WAUGH: I'm sorry. I'm not sure I understand your question. If --

SENATOR ZANE: Did you tes --

HONORABLE WAUGH: -- if you're asking me to draw a distinction between, there's no official position approving it, and it's disapproved, I wouldn't have drawn that distinction. I think it was made clear, to the State Police, through a number of methods, that racial profiling is disapproved. Is that what you're asking me?

SENATOR ZANE: Judge, what I wrote down, when you were asked the question by Mr. Chertoff, there were about three or four points that you mentioned, that Justice Verniero wanted to accomplish at that meeting. I was only able to write down about two of them. One had, Verniero wanted the Justice to know about the Soto appeal. Do you recall saying that?

HONORABLE WAUGH: Right.

SENATOR ZANE: And, I don't know what the others were. But then, you also said that Verniero wanted -- Attorney General Verniero wanted the Justice Department that there was no official position, in New Jersey, approving racial profiling. In other words, this wasn't a policy. This wasn't a --

HONORABLE WAUGH: Right. Yeah. I'm sorry. I --

SENATOR ZANE: Is that correct?

HONORABLE WAUGH: When you asked me the question, before, I didn't catch the "approving."

SENAOR ZANE: Okay. You indicated that Fahy worked for, and reported to you, as early as 1993. Am I correct?

HONORABLE WAUGH: When, when I was Legal Affairs Director, Jack Fahy was in Legal Affairs, and he reported to me. So, that would have been sometime, I think, in 1990 -- through 1993, when I became Executive Assistant Attorney General. After that, I wouldn't be entirely comfortable with he reported to me. He would come up -- sometimes he would come up and vent. Sometimes he would come up and ask me a question, or tell me what was going on. But, I was not his direct supervisor, because as long as he was in Legal Affairs, whoever was the Legal Affairs Director was his supervisor.

SENATOR ZANE: When were you no longer Legal Affairs Director?

HONORABLE WAUGH: It would have been August or September of 1993.

SENATOR ZANE: During that period of time, the litigation was going on in Gloucester County. Is that correct?

HONORABLE WAUGH: Right.

SENATOR ZANE: And, he was reporting back to you, telling you what was going on?

HONORABLE WAUGH: Not on a regular basis. But, he was doing it periodically.

SENATOR ZANE: You also indicated that you read the Soto decision, correct?

HONORABLE WAUGH: Yes.

SENATOR ZANE: You indicated that there were several areas that you disagreed with. I think that's what you said. And, that they would be subject to appeal. Am I correct?

HONORABLE WAUGH: Right.

SENATOR ZANE: You indicated that the Judge shifted the burden to the State, and away from the moving parties. Am I correct?

HONORABLE WAUGH: Right.

SENATOR ZANE: That was one of your reasons. But, you understood that that case was about racial profiling, did you not?

HONORABLE WAUGH: Yes.

SENATOR ZANE: Senator Robertson asked you a couple -- a number of questions. And, one made reference to the May 20th, 1997, meeting. And, in essence, what you said was, I'm not going to say crystallized, but in essence, that's when you began to realize that racial profiling was going on in New Jersey. Am I correct?

HONORABLE WAUGH: The May 20th meeting?

SENATOR ZANE: Yeah.

HONORABLE WAUGH: No, I didn't say that.

SENATOR ZANE: What did you say? Well, let me ask you this way. When did you say it became somewhat clear to you that racial profiling was going on in New Jersey, and it wasn't just a few troopers not doing what they were supposed to do?

HONORABLE WAUGH: I'm sorry. I don't remember Senator Robertson asking me that question. But -- so -- but, let me try to answer your question.

SENATOR ZANE: Okay.

HONORABLE WAUGH: When I heard, subsequent to my leaving the office, that there were State Troopers, and I don't know whether it's ever been determined how many, who were deliberately indicating, in their logs, that they were stopping non-minorities, when in fact, they were stopping minorities, that, to me -- I mean, when you -- when you put down data that's not correct, that indicates, to me, that you know you're doing something wrong, and you're trying to hide it. And, that changed the way that I viewed the issue.

SENATOR ZANE: And, that was when, Judge?

HONORABLE WAUGH: Whenever the publicity came out about what had been discovered. I mean, I don't know whether -- I know it was part of the investigation of the Turnpike shooting that took place in '98. I don't know when it hit the newspaper -- that, that particular issue.

SENATOR ZANE: So, it wasn't clear to you that racial profiling was going on until after the shooting incident in 1998? Is that correct? Is that your testimony?

HONORABLE WAUGH: In terms of it being more pervasive than just a limited number of troopers who weren't doing what they were supposed to.

SENATOR ZANE: Did you have an opportunity to read Justice Verniero's transcript, when he appeared before this Committee, approximately two years ago?

HONORABLE WAUGH: No.

SENATOR ZANE: You've heard the reference made to when it crystallized with Justice Verniero, have you not?

HONORABLE WAUGH: Yes.

SENATOR ZANE: Do you happen to know when that was, that he has said it crystallized?

HONORABLE WAUGH: Do I know?

SENATOR ZANE: Do you know when it was that he said it crystallized in his mind?

HONORABLE WAUGH: I think -- I mean, my recollection is that he said it crystallized in his mind after the Turnpike shooting.

SENATOR ZANE: The same as your recollection, correct?

HONORABLE WAUGH: I don't know that, because the particular fact that I focused on, Senator, was the information that there was -- there were troopers who were changing their records. And, I don't know whether that information was available in '98, or whether it wasn't available until '99.

SENATOR ZANE: Judge, what did you think was going on, on the New Jersey Turnpike, that people were bringing suit for, in Gloucester County, that minority troopers were complaining about, that individuals were complaining about, that statistics that you had already seen referenced, and showed the number of stops? What did you think that was?

HONORABLE WAUGH: I thought that there were troopers who were not doing what they were supposed to be doing, and that that was not supposed to happen, and that the State Police were supposed to be doing something about it.

SENATOR ZANE: But you still didn't think that was racial profiling? Is that what you're saying, here, today?

HONORABLE WAUGH: No, I'm not saying that, Senator.

SENATOR ZANE: Well, then, did you think it was racial profiling?

HONORABLE WAUGH: What, what I said was, that I didn't think it was a pervasive problem. Obviously, if one trooper stops one motorist because that motorist is a minority, that's racial profiling. I never said that I thought there was no racial profiling. And, if I said that, then let me correct the record. Because that's not my position. What I said was that it was my belief, at that time, that racial profiling was not a pervasive problem, but that there was always the possibility that there were individual troopers who were not supposed to -- not doing what they were supposed to be, and that would be racial profiling. And, that wasn't supposed to happen. And, the State Police, throughout the time that I was there, were taking various remedial measures to prevent that, starting with Colonel Dintino.

SENATOR ZANE: Prior to the shooting incident on the Turnpike, had you read statistical data that indicated that minorities in numbers that ranged from 34 to 50 percent, depending upon, I guess, who's study, and what year, were being stopped on the New Jersey Turnpike?

HONORABLE WAUGH: I read the document that's attached to W-30.

SENATOR ZANE: Is that answer, then, yes, you did?

HONORABLE WAUGH: If -- I believe that that document shows those numbers.

SENATOR ZANE: And, it still didn't occur to you that that was racial profiling?

HONORABLE WAUGH: As I explained, my under -- what I took away, from my reading of that document, and -- at the time, was that minority troopers had made the allegation that majority troopers were profiling. And, I assumed that the -- their allegation was included, and were not, and the State Police did an analysis, and they came up with statistics that said that the numbers were, essentially, the same for majority and minority troopers. And, that's why I took away from that document. Now, I'm willing to admit that, in hindsight, maybe I should have taken away more, from that document. But, that's what I took away from it, at the time.

SENATOR ZANE: Judge, did you attend the meeting, I think, May 21st, 1996, when Sergeant Gilbert was present?

HONORABLE WAUGH: I would have to know more about the meeting, because I don't know that I knew Sergeant Gilbert, at the time. Where was the meeting, and who else was there?

SENATOR ZANE: The Attorney General's Office, I think, if I have the right date. Were you -- did you attend the meeting on December the 24th, 1996, in the Attorney General's Office?

HONORABLE WAUGH: Yes.

SENATOR ZANE: And, was Sergeant Gilbert at that meeting?

HONORABLE WAUGH: I don't know. I don't know that I -- I knew who Sergeant Gilbert was. But, as I think I testified at my deposition, if he -- if he came in, I'm not sure I would know -- although, I suppose, recently I've seen his picture in the paper.

SENATOR ZANE: Do you have a recollection?

HONORABLE WAUGH: I mean, I know -- I know the Colonel was there. And, it's unusual for the Colonel to come to a meeting by himself. But, I don't know who was with him.

SENATOR ZANE: And, you were present, also? Is that correct?

HONORABLE WAUGH: On December 24th?

SENATOR ZANE: Yes.

HONORABLE WAUGH: Yes.

SENATOR ZANE: And, the Attorney General was present?

HONORABLE WAUGH: Yes.

SENATOR ZANE: And, Mr. Fahy was present?

HONORABLE WAUGH: I believe so. Yes.

SENATOR ZANE: And, possibly, Mr. Rover?

HONORABLE WAUGH: I doubt Mr. Rover was there, because I don't think I had gotten him involved until after that.

SENATOR ZANE: And, you recall no discussion at that time, from Jack Gilbert -- from Sergeant Gilbert, who's name happens to be Tom, regarding statistical data that he had, and he presented at that meeting? You have no recollection of that?

HONORABLE WAUGH: No.

SENATOR ZANE: When Senator Robertson asked you the question again that I referred to, about the May 20th meeting, and you didn't really know what was going on -- racial profiling, that you didn't really know it was going on until after the Turnpike shooting, you also said the two reasons why you didn't know it was, one of the things you said is the State Police kept assuring you that there was no problem. Do you recall saying that?

HONORABLE WAUGH: Yes, I do.

SENATOR ZANE: And, isn't that not the truth, if, in fact, Sergeant Gilbert provided data, from the State Police, at that meeting on the 24th? Because, he testified here, that he did.

HONORABLE WAUGH: Well, I don't remember him -- I don't remember him doing -- presenting such statistics, so I don't remember what the statistics were. And, I don't know whether he said, at that meeting, that he thought there was a problem of racial profiling. It's my recollection, from things that I've read, and I don't know whether I looked at his transcript. I don't think I looked at his transcript on the -- oh, I think it was from -- at some point, I got the -- I got the understanding, and maybe I'm wrong, that it was Sergeant Gilbert's position that he -- that although he had certain statistics, he did not feel that racial profiling was a problem in the sense that it was determined to be, when the interim report came out. Now, if I'm wrong about that, I don't know what to say, because I don't remember very much about what happened at the meeting on the 24th.

SENATOR ZANE: You do remember him saying that? Is that what you're suggesting? Do you remember -- do you remember anything --

HONORABLE WAUGH: No. What I'm saying is, I don't remember if he was at the meeting. I don't remember what he said at the meeting. But, to answer your question, which was, am I incorrect, or is not the truth, I think is what you said, that the State Police had always said that racial profiling was not a significant problem. I would have to know what it is, exactly, that he said he said at that meeting. Because, I can't emphasize this enough, Senator. I'm not saying that we were told by the State Police that there was absolutely no trooper who was profiling. What we were told was that it was not a pervasive problem, that there were some troopers who were not doing what they were supposed to be. And, they were taking steps to make sure that that didn't happen.

SENATOR ZANE: Wasn't the meeting on the 24th of December regarding a consent order similar to the one that Maryland had entered into? Do you recall that?

HONORABLE WAUGH: I don't recall the meeting that way. I'm sure that the issue of a consent order came up, because I'm pretty sure that the Attorney General would have related his conversation with the Justice Department. And, as I testified before, what he told the Justice Department was, when you're done, if there are remedial actions that you want us to take, we'll seriously consider them. But, I'm not inclined to enter into a consent order. I don't remember the issue of a consent order in terms of Maryland, until the period of time leading up to the May, 1997, meeting. But, because I don't remember exactly what happened at the December 24th meeting, I can't answer the question better than that.

SENATOR ZANE: You have no recollection, then, at that meeting, there being a discussion regarding there being a consent order of any kind?

HONORABLE WAUGH: No, I'm not trying to say that, Senator. I'm saying that it's quite likely that in the context of reporting on what was discussed with the Justice Department, the Attorney General would have said, "I told them that we would consider remedial measures, but that I was not inclined to enter into a consent order."

SENATOR ZANE: Judge, do you also recall one of your reasons for not believing that racial profiling was happening in New Jersey, as of May 20th, 1997, that you also indicated that the Department of Justice was going to get the documents. And, if they think there's a problem, they will get back to us. Do you remember saying that?

HONORABLE WAUGH: I remember saying the second part of that. I don't believe that that was one of my reasons for thinking that there -- that racial profiling was not a pervasive problem.

SENATOR ZANE: You weren't suggesting that the Federal government wasn't that serious about it, why should we be?

HONORABLE WAUGH: No. I had no belief that the Federal government wasn't serious about it.

SENATOR ZANE: What were they serious about, if he didn't believe it existed, at that time?

HONORABLE WAUGH: They were serious about finding out whether it did exist.

SENATOR ZANE: One last question. What suddenly made it clear to you, in 1998, after the shooting, that racial profiling was apparently happening, here in New Jersey?

HONORABLE WAUGH: Senator, that's not my testimony. My testimony is that my view of the issue changed when I learned that there were troopers who were falsifying, or alleged to have falsified their call-ins, or their logs, to say that they had stopped non-minorities, when they stopped minorities, because I believe that that practice would indicate that they knew they were doing something wrong. When I read the interim report, and all the reasons that were set forth in the interim report, is when I first had knowledge of everything that had been done, and the conclusions that were reached. All I'm saying is that I believe that the facts that came out, at some point, and I don't know whether it was '98 or '99, that troopers were altering their documents, was something that changed the way I looked at it.

SENATOR ZANE: All right. It changed the way you looked at it. You said it changed your view. What was your view, prior to the Turnpike shooting incident, about the issue of racial profiling, in your own words?

HONORABLE WAUGH: My view was that there was no -- let me phrase it differently. I accepted the representations of the State Police, that there was no pervasive racial profiling.

SENATOR ZANE: Judge, with all due respect, let me interrupt you. I am not concerned with what you expected from the State Police. Tell me what you thought.

HONORABLE WAUGH: I'm answering your question, Senator.

SENATOR ZANE: Go ahead.

HONORABLE WAUGH: I accepted the representation of the State Police, that there was no pervasive practice of racial profiling, and that there were individuals troopers who might not be following orders. That was my understanding of the situation. In retrospect, maybe it was not correct, because a lot of stuff has been discovered since then, that is included in the report. You asked me what my understanding was, at the time, and that's what I'm telling you.

SENATOR ZANE: I asked you what your view was. I have no further questions.

SENATOR GORMLEY: Senator Lynch?

SENATOR LYNCH: Judge Waugh, in 1996, as Executive Assistant to the Attorney General, did you have a defined scope of responsibilities?

HONORABLE WAUGH: Yes. And, I don't want to quibble with you, Senator, but my title was Executive Assistant, Attorney General.

SENATOR LYNCH: I'm sorry. Executive Assistant, Attorney General. And, you had a written scope of responsibilities?

HONORABLE WAUGH: Oh, no. I don't believe so.

SENATOR LYNCH: Then, was there an organization chart that you fit into?

HONORABLE WAUGH: I'm sure there was. There were --

SENATOR LYNCH: And, do you know --

HONORABLE WAUGH: There were organization charts that changed on a regular basis.

SENATOR LYNCH: But, I'm asking you about '96. Let's go to December of '96.

HONORABLE WAUGH: My area of responsibility, as I understood it, under both -- well, from DeVesa to Verniero, was that my primary area of responsibility was civil enforcement matters, which would include the Division of Consumer Affairs, the Division on Civil Rights. It didn't usually include the ABC. And, it didn't usually include racing, although sometimes racing came in or out of my purview. I was -- I had tort claims, act settlement authority, I believe, up to $1 million. So, I was sometimes asked to either approve, or look for approval, of settlements. I got involved with a number of issues that the Division of Law might be working on, from time to time. I was -- it was also part of my responsibility to oversee the Department's Affirmative Action Officer, and to work on the -- what we call discrimination appeals, which were complaints or appeals from employees who felt they had been the subject of discrimination. And, from time to time, I also did, or arranged for training of Department personnel on EEO/AA issues.

SENATOR LYNCH: I assume that under the heading of civil rights matters, that that is why you were involved in going to Washington in December of '96, with the Attorney General?

HONORABLE WAUGH: I don't -- I don't know, Senator. I think, in some ways, it was because I was the guy that took the call. And, I --

SENATOR LYNCH: And, do you have --

HONORABLE WAUGH: And, I had had some prior involvement with it, because I was involved in the discussions to do the Soto brief.

SENATOR LYNCH: And, I assume that beyond the relatively defined scope of responsibility, the Attorney General, from DeVesa, to Verniero, would, from time to time, give you tasks to perform, that might not be within that purview?

HONORABLE WAUGH: That was part of the job, generally referred to as special projects.

SENATOR LYNCH: Whatever you got, you did?

HONORABLE WAUGH: Whatever I was asked to do, I did.

SENATOR LYNCH: Prior to getting the call from Rosenbaum -- blum, whatever it was, did you -- had you ever had any discussion with the Attorney General, or anyone else, at the -- at your Department, regarding the potential for a Department of Justice inquiry/investigation?

HONORABLE WAUGH: No.

SENATOR LYNCH: So, that phone call to you came out of the blue, as far as you were concerned?

HONORABLE WAUGH: Correct.

SENATOR LYNCH: Prior to that time, in your responsibilities, had you, over the years, developed a relationship, rapport, with higher echelon of the State Police?

HONORABLE WAUGH: I generally had some sort of relationship with higher echelon of the State Police. And, sometimes it was a good relationship, and sometimes it was not.

SENATOR LYNCH: Would you go to the State Police Headquarters fairly frequently, to meet with Troop Commanders, and the Superintendent, and others?

HONORABLE WAUGH: At different times that I was there, I went to Division Headquarters quite frequently. At other times, I went rarely. When I was Legal Affairs Director, I tried to meet with Colonel Dintino -- I don't know whether we ever managed, really, to have weekly meetings, but bi-weekly, or periodic meetings. I think I also neglected to mention that I was sort of in overall charge of the 9-1-1 program. And, that required me to go to meetings at State Police --

SENATOR LYNCH: Now, with regard to Soto --

HONORABLE WAUGH: Right.

SENATOR LYNCH: Judge Ciancia testified, at his deposition, that they were not locked into the moving forward on the lead to appeal, until they were to read the transcripts. Is that your recollection?

HONORABLE WAUGH: I don't recall it being discussed, but certainly, you can always withdraw an appeal, up until -- I mean, you an always withdraw an appeal, up until, like I guess, it's decided. I don't remember a specific discussion that way. But, I think there were discussions that I was involved in, and discussions that I wasn't involved in. So, I would have to know when he said that discussion took place.

SENATOR LYNCH: Were you aware of the -- strike that. I believe that you, maybe, testified earlier that you weren't aware of the Littles Committee that was formulated --

HONORABLE WAUGH: I don't --

SENATOR LYNCH: -- Soto.

HONORABLE WAUGH: I don't recall being aware of it. And, there were some documents that I was shown, in my deposition, or there was at least one, where something was going to Jim Ciancia, and not to me. And, I certainly don't recall ever having met with that committee.

SENATOR LYNCH: Did you ever have any discussion with Fahy, or Susswein, about it?

HONORABLE WAUGH: It's not impossible that I would have discussed it with Fahy. But, I don't remember. I had very little interaction with A.A.G. Susswein.

SENATOR LYNCH: Did you -- did you ever find out, prior to your leaving the Attorney General's Office, that there was an audit, or an attempt at an audit, of the arrest data available for the 19 troopers involved in Soto?

HONORABLE WAUGH: I think I testified, before, that I had no recollection of ever having been told about that document. It wasn't in my file. If I had received it, I would have given it to the Attorney General. And, my best recollection is that I never knew about that document.

SENATOR LYNCH: I'm not talking about a document. I'm asking you --

HONORABLE WAUGH: I'm sorry.

SENATOR LYNCH: -- if you had ever heard about such an audit, prior to your leaving the Attorney General's Office, in December or so, of 1997?

HONORABLE WAUGH: Not that I recall. I'm sorry. I thought you were asking me, specifically, about that document.

SENATOR LYNCH: You indicated earlier that when the bells and whistles went off, it was after the audits in -- that were announced on falsification of records by the State Police, or certain members of the State Police.

HONORABLE WAUGH: I don't know that I testified to bells and whistles. I -- my testimony, Senator, is that when I heard about that, that really changed the way I thought about the issue.

SENATOR LYNCH: Did you know that one of the problems in Soto was that they didn't have a gray spot on the patrol charts?

HONORABLE WAUGH: No, I don't think I recall that as an issue. I know that one of the issues in Soto was that there were not -- there were a lot of people for whom there was no statistic. And, I -- my understanding was that Superintendent put out a lot of stuff to make sure that that information was being provided.

SENATOR LYNCH: Well, let me suggest, the record says that while in Soto, that they may have had 33, 35 percent of the radio log information available regarding race. They had no information with regard to the patrol charts, because it wasn't designated to be put there. And, that it took two-and-a-half years, until the fall of 1998, before it was incorporated into the patrol charts. Does that refresh your recollection?

HONORABLE WAUGH: I don't -- I don't recall that being an issue.

SENATOR LYNCH: Did you ever have conversations regarding Soto, with Fahy, or anyone else, about the defense seeking data from the State, regarding consent to search information?

HONORABLE WAUGH: No. My understanding had always been that that was not an issue.

SENATOR LYNCH: And, who gave you that understanding?

HONORABLE WAUGH: I think I got it, somewhat, from reading the decision. I mean, I -- back, a long time ago, I had a lot of -- I would have discussions with Jack Fahy. And, I can't guarantee you, Senator, that he never mentioned that as being an issue. But, I was -- as I said, my understanding of that case was that it focused on stops, and not consents to search.

SENATOR LYNCH: When did you first to learn who Tommy Gilbert was? You said you found out, somewhere, who he was.

HONORABLE WAUGH: I -- Senator, I just -- I really don't remember. I don't know that I ever met with him. I knew that Jack Fahy and George Rover was -- were meeting with someone. If -- Senator Zane asked me if he was at the December 24th meeting. If he was, I'm sure I would have met him, then. I just don't recall when I first was aware of his existence.

SENATOR LYNCH: At some point, did you become aware of his existence? Did you have a conscious -- do you have a conscious recollection of when you first became aware of the existence of Sergeant Tom Gilbert?

HONORABLE WAUGH: No. I mean, if he was at a meeting that I was at, the general custom was everyone would get introduced. But, if you're asking me, four or five years later, when did I first know that there was a Sergeant Gilbert? I can't answer that question.

SENATOR LYNCH: How long did you -- prior to December of '96, how long had you known Mr. Rover?

HONORABLE WAUGH: Well, I stopped being Legal Affairs Director in '93. And, I hired him to work in Legal Affairs, and I think it was fairly -- it was probably the first half of my tenure there, rather than the second. So, I probably knew him in '96, did you say?

SENATOR LYNCH: I'm saying, how long before December of '96 had you known Mr. Rover?

HONORABLE WAUGH: Probably four or five years.

SENATOR LYNCH: Did you know him --

HONORABLE WAUGH: I don't know whether there's a document that says when he was hired to work in Legal Affairs. I interviewed him, and I hired him.

SENATOR LYNCH: I'm not asking you about documents. I'm asking you, based upon your recollection, today, how long did you know Gilbert before -- I mean, Rover, before December of '96?

HONORABLE WAUGH: When -- I knew him from the time that I hired him to work at Legal Affairs.

SENATOR LYNCH: And, you think that was some four years before that, or better?

HONORABLE WAUGH: I think it probably was.

SENATOR LYNCH: And, did you develop a personal relationship, social relationship, with Rover, over the years?

HONORABLE WAUGH: Not a social relationship. He was somebody who worked for me. And, I tried to be friendly with the people who worked for me.

SENATOR LYNCH: But, you had some history with him which demonstrated that he was capable of having -- freelancing. Is that right?

HONORABLE WAUGH: I had that concern.

SENATOR LYNCH: Now, when you get this call from the Department of Justice in late November, early December, 1996 -- early November, I'm sorry, 1996, you, of course, immediately communicate that to the Attorney General?

HONORABLE WAUGH: Right.

SENATOR LYNCH: And, you're -- you have concerns that this call could trigger some problems for the Department, correct?

HONORABLE WAUGH: I guess so. I mean -- I don't mean to quibble with you, Senator --

SENATOR LYNCH: I mean, it wasn't a --

HONORABLE WAUGH: It wasn't a social call. It was a call saying they wanted to do something. And, they wanted me to relay that information.

SENATOR LYNCH: All right.

HONORABLE WAUGH: That's what I did. And, obviously, it was a subject of concern. It was a significant issue.

SENATOR LYNCH: And then, there are memos, and discussions leading up to a meeting on December the 24th, 1996, in the Attorney General's Office, in which you are present, along with the Superintendent of the State Police, and others.

HONORABLE WAUGH: You said -- I'm sorry. What was the date?

SENATOR LYNCH: December 24, 1996.

HONORABLE WAUGH: Right. I was at that meeting.

SENATOR LYNCH: And, the purpose of that meeting was to review the format that had been provided in Washington, by the Department of Justice, as to the kind of information they were looking at?

HONORABLE WAUGH: I would say that the purpose of the meeting was broader. The purpose of the meeting was to report on the trip to Washington, the meeting with the Justice Department, to tell them about what was said, and to start thinking about how we were going to interact with the Justice Department, and supply them with what they were going to ask.

SENATOR LYNCH: Would you characterize that as the beginning of a strategy as to how this would be handled?

HONORABLE WAUGH: I don't think I would use the word strategy, but --

SENATOR LYNCH: Why don't you use your own term, then.

HONORABLE WAUGH: I think it was the discussion to talk about how we were going to handle the Justice Department inquiry, and how their requests for information were going to be responded to.

SENATOR LYNCH: And, was it discussed, on that day, that who would interface with the Department of Justice?

HONORABLE WAUGH: I'd have to assume it was -- and, as I said, there was some time when the decision was made, that Jack Fahy was go -- was not going to be the one, and whether --

SENATOR LYNCH: Was Fahy at this meeting, on December the 24th?

HONORABLE WAUGH: He may have been. I don't remember. He -- it would be likely that he was, because he was still involved, and he had gone to Washington.

SENATOR LYNCH: And, he would have been the natural, because he was familiar with the racial profiling issues, and the discrimination cases filed by troopers, as well?

HONORABLE WAUGH: Right. Yes.

SENATOR LYNCH: And, he had a history, dating back, with you, into the early 1990's, in handling those kinds of cases?

HONORABLE WAUGH: Well, I don't -- yes, I guess so. I mean, he certainly had a history with me, in that he worked for me at Legal Affairs.

SENATOR LYNCH: But, you knew he was handling those kinds of cases.

HONORABLE WAUGH: I knew that he -- from time to time, he did.

SENATOR LYNCH: So, because of his experience, he would have been the natural one to handle this?

HONORABLE WAUGH: Yes.

SENATOR LYNCH: And, once you -- it became determined that there was -- that Fahy could not, or should not handle this, because he had moved on to handling the grand jury, and he was burnt out, or whatever, on racial profiling issues, was a discussion held as to who would become that interface with the Department of Justice, in retrieving information, and communicating with them, and working with you?

HONORABLE WAUGH: Yes.

SENATOR LYNCH: Who did you have that discussion with?

HONORABLE WAUGH: I don't remember specifically the discussion. But, I'm sure it was with the Attorney General. And, he would have said, at some point, if Jack Fahy's not going to do this, who is going to do it?

SENATOR LYNCH: Okay. So, now you have an Attorney General who, admittedly, and of record, has no background in the criminal law, or in -- having any familiarity with what a consent to search is, or what probable cause is, to search, and so forth. And, you have an Executive Assistant, Attorney General who also has no familiarity. And, your first choice would have been Fahy, but your second choice becomes a third person, namely Rover, who has no familiarity, whatsoever, with the criminal law, consent to search, probable cause issues that are inherent, here?

HONORABLE WAUGH: Right. That's how it happened.

SENATOR LYNCH: Of course, it's just coincidental that he's not in the Department of Law, or in Criminal Justice, correct?

HONORABLE WAUGH: Yes.

SENATOR LYNCH: How many people did you have, to select from, who had familiarity with, and had clear backgrounds in the criminal law, and with the issues that are inherent in this inquiry?

HONORABLE WAUGH: I can't give you an exact number. But, certainly, there would have been quite a few people.

SENATOR LYNCH: Scores of them, correct?

HONORABLE WAUGH: I would say, at least.

SENATOR LYNCH: Now, you tell Rover, in a memo, that you don't want him freelancing?

HONORABLE WAUGH: Right.

SENATOR LYNCH: And, you had some history of him freelancing?

HONORABLE WAUGH: Right.

SENATOR LYNCH: Did you tell him that I want to be copied on everything that you send to Washington? Or, that you communicate to anyone, in this matter, so that I can see it?

HONORABLE WAUGH: I don't remember phrasing it that way. I may have. I made it clear to him that I wanted to know what was going on.

SENATOR LYNCH: Well, then, you found out later that year, mid-year sometime, that he was accumulating data, and not sending it along to the Department of Justice, correct?

HONORABLE WAUGH: I had that feeling. And, I told him that that's not what he was supposed to do.

SENATOR LYNCH: And, do you recall when that was? Was that July?

HONORABLE WAUGH: As I said to, I think it was Ms. Glading, I don't remember whether it was in connection with the documents that were being sent out, in terms of preliminary documents, or the documents that were sent out in terms of these six -- thirty days that they were asking about. It was one of those two times.

SENATOR LYNCH: So, now, armed with the idea that Rover had proven to you, pre-December '96, that he was capable of freelancing, and now that he's not following your instructions during the course of 1997, when you talked to him, did you say, "I want to be copied on everything you receive, and everything you send out"?

HONORABLE WAUGH: Senator, I don't remember phrasing it in those words. But, I let him know that I wanted to know what was going on.

SENATOR LYNCH: It seems pretty clear, from the record, that -- nobody wants to get written copies of everything. They want to know what's going on, but they don't reduce it to memos, as to the fact that they want to be copied on whatever it is you receive, and send out. Is that clear to you?

HONORABLE WAUGH: I'm not sure I understand your question. Is it your ques --

SENATOR LYNCH: Well, we have something that's important to you, and to the Attorney General, and clearly, to the State of New Jersey, regarding a Department of Justice inquiry that begins with a phone call to you in November of 1996. Correct?

HONORABLE WAUGH: Yes.

SENATOR LYNCH: It's important that there be a clear exchange of information, insofar as you were concerned, if you were going to cooperate, as you suggested that you and the Attorney General had agreed upon, in the meeting in Washington, in December -- November or December of 1996. Correct?

HONORABLE WAUGH: Yes.

SENATOR LYNCH: Now, why do we not see a memo from you, or the Attorney General, saying to Rover, and others, I want to be copied on whatever it is you receive regarding the Department of Justice inquiry, and whatever you send out to the Department of Justice?

HONORABLE WAUGH: Because it never occurred to me to send that sort of a memo. I made it clear to --

SENATOR LYNCH: Even though you're faced with the fact that Rover had freelanced before December of '96? And, was freelancing in the middle of '96 -- '97?

HONORABLE WAUGH: Senator, I didn't send him that memo, and it didn't occur to me. I made it clear to him, on several occasions, what I wanted.

SENATOR LYNCH: So, we know that the Attorney General and you understood, in December of '96, that this was something that was important to you, and to the State, correct? This Department of Justice inquiry?

HONORABLE WAUGH: Correct.

SENATOR LYNCH: And, at some point in time, over the period of months between memos and meetings, you had a clear understanding that as far as the Attorney General was concerned, and I expect -- suspect, you, that not only was this important, but it was clear that the Attorney General didn't want it to be called in investigation, but rather, something like an inquiry, correct?

HONORABLE WAUGH: That was my understanding.

SENATOR LYNCH: And, it's also clear, at least by May of 1997, that the Attorney General didn't want this to become a -- translate into a consent decree?

HONORABLE WAUGH: That was clear to me, when we met with the Justice Department, that he -- that he was not -- he told them he was not inclined to a consent decree. Senator, can I explain that?

SENATOR LYNCH: Which is why he indicated that he wanted to cooperate, to the fullest, correct?

HONORABLE WAUGH: Can I explain my answer?

SENATOR LYNCH: Sure.

HONORABLE WAUGH: A consent decree has a talismanic meaning in State government. No State government agency wants to have a consent decree. It was -- that's why the Attorney General said that we would be more than happy to discuss remedial measures. But, he was not inclined to have a consent decree.

SENATOR LYNCH: We don't want to -- we don't want it called an investigation. We don't want a consent decree. And, there was an alternative to a -- alternative to a consent decree, and that would have been the filing of a suit by the Department of Justice, and a contest by the State of New Jersey, correct? If you believe there wasn't any profiling going on. Isn't that correct?

HONORABLE WAUGH: I don't understand.

SENATOR LYNCH: In other words --

HONORABLE WAUGH: If, if they had --

SENATOR LYNCH: In other words, you don't need a consent decree for some action to be initiated, here. The State doesn't have to voluntarily do anything. The State could say, we don't have any racial profiling going on, through our State Police, on the Southern end of the New Jersey Turnpike, and you can go ahead and file a suit, and we'll contest that action. You could do that, couldn't you?

HONORABLE WAUGH: Sure.

SENATOR LYNCH: So, that was an option?

HONORABLE WAUGH: Sure.

SENATOR LYNCH: And, you did learn sometime -- and you --

HONORABLE WAUGH: Well, I don't -- Senator, yes, it was an option. But, it was not an option that I ever considered, or anyone else considered.

SENATOR LYNCH: Well, if you had firm -- if you were convinced, other than with some anecdotal information from the hierarchy in the State Police, that there wasn't any racial profiling going on --

HONORABLE WAUGH: Senator, that --

SENATOR LYNCH: -- if you were convinced that there wasn't, wouldn't you say to them, it's not happening. Go ahead and file your suit.

HONORABLE WAUGH: Why would I do that? That would be a stupid thing to do, Senator. In the first place, I never testified that there was no racial profiling. I testified that it was not a pervasive problem. There was always the issue as to whether there were some individual troopers who were profiling. That's number one.

SENATOR LYNCH: And, regardless of --

HONORABLE WAUGH: Can I finish my answer?

SENATOR LYNCH: Sure.

HONORABLE WAUGH: And, number two, the Justice Department calls up. They said, we're concerned about this issue. We want to work with you. We want to look at the statistics, the documents. And, we'll do an analysis. And, we'll come back to you. And, we may discuss, with you, a pre-litigation resolution. And, it would have -- under no circumstances would I even contemplate saying to the Justice Department, well go stick it. Why don't you sue us?

SENATOR LYNCH: And, I agree with you on that. So -- but, I just wanted to point out, for purposes of this record, that the consent decree was not the only option. The other one was intolerable, namely, the filing of a suit by the Justice Department. Correct?

HONORABLE WAUGH: Well, Senator, I don't want to quibble with you, but you can't -- my understanding is, you can't have a consent decree unless there is an action in which the consent decree is filed. So, if you agree --

SENATOR LYNCH: That can be done on the same day that you've had your agreement --

HONORABLE WAUGH: Right.

SENATOR LYNCH: -- which we -- you know, just let's not go through splitting hairs. The fact is, if you had a consent decree, yes, technically, you'd have to file an action. But, you'd announce the consent in advance of the action being technically filed. Correct?

HONORABLE WAUGH: That would -- that's the way it would usually be done.

SENATOR LYNCH: So, we don't want in investigation, at least being characterized an investigation. Because, at this point in time, there's nothing in the public domain. And, when I say, this point in time, I mean, the middle of 1997. We don't want an investigation.

HONORABLE WAUGH: What do you mean by nothing in the public domain?

SENATOR LYNCH: There's no newspaper accounts of the inquiry by the Department of Justice. HONORABLE WAUGH: That's correct.

SENATOR LYNCH: And, no such thing happened until February of '99, to the best of your knowledge, correct?

HONORABLE WAUGH: No such thing happened while I was in the Attorney General's Office.

SENATOR LYNCH: So, you don't want an investigation. You certainly don't want to enter into a consent decree, and God forbid, you don't want an action filed -- a contentious action filed, by the Department of Justice. So, you have these meetings and these memos exchanged. And then, you have a meeting in May, with the Attorney General, and others, including yourself, which essentially is another strategy meeting, isn't it?

HONORABLE WAUGH: Well, Senator, you're using the word strategy. And, I'm not sure exactly --

SENATOR LYNCH: Well, you characterize it for me, Judge.

HONORABLE WAUGH: Senator, it was -- there were a number of issues that needed to be resolved. And, it was a meeting to resolve those issues. And, as far as I was concerned, the primary issue that needed to be discussed was the issue of the consent to search data.

SENATOR LYNCH: And, it was clear that nobody in that room was anxious to send along consent to search data, that maybe currently existed in the -- in the Department of Law, or in the Division of State Police. Nobody was anxious to send that along to the Department of Justice?

HONORABLE WAUGH: It was clear to me, at the meeting, that the State Police was not anxious to have that information produced. And, it was the result of the meeting, as I understood it, that the information would be produced when it was asked for, again.

SENATOR LYNCH: So, you were aware, then, a that meeting --

HONORABLE WAUGH: But, to answer --

SENATOR LYNCH: -- that the Division of State Police had information regarding consent to search?

HONORABLE WAUGH: I was aware that the Division of State Police had documents that were consent to search documents, that could be supplied to the Justice Department. Yes.

SENATOR LYNCH: Did you ask anyone how long it would take them to retrieve all of the consent to search documents for the last 36 months?

HONORABLE WAUGH: No.

SENATOR LYNCH: Did anyone?

HONORABLE WAUGH: Not that I recall.

SENATOR LYNCH: Did they ask them how long it would take to retrieve consent to search documents for two months?

HONORABLE WAUGH: No.

SENATOR LYNCH: Or, any length of time?

HONORABLE WAUGH: No.

SENATOR LYNCH: And then, after that May meeting, sometime in June, there was some, apparently, there's -- in the record, there's an agreement between the Justice Department and the Attorney General's Office, that on 30 random dates, that would be selected for doing, retrieving information. Is that correct?

HONORABLE WAUGH: My recollection is that the 30 random dates were identified before the May meeting. But --

SENATOR LYNCH: But, not agreed upon?

HONORABLE WAUGH: Well --

SENATOR LYNCH: Wasn't one of the discussions at the meeting as to one -- some of the concerns that there might be for what those random dates were? Whether there were some idiosyncracies about them that might be -- there might be a pattern about, with regard to the Department of Justice?

HONORABLE WAUGH: I remember that being something that Mr. Rover brought up. But, I didn't think it was an issue any longer, by the May 20th meeting.

SENATOR LYNCH: Now, at this point in time, by May 20th, 1997, has the Attorney General, Mr. Verniero, expressed to you, or to others, to your knowledge, that he has some concerns about the politics of this inquiry, by the Department of Justice?

HONORABLE WAUGH: When the call first came in, which would have been November of 1996, he expressed that concern to me. I told him I didn't think that there was -- that that was an issue. And, my understanding that -- was that after we went down and met with the Justice Department, he no longer had that concern. So, that was -- yes, that was discussed. But, it was a non-issue, as far as everyone was concerned, as far as I understood, by the end of December of 1996, by the time we had met with the Justice Department.

SENATOR LYNCH: Suppose the -- May 20, 1997 meeting, from the record, it appears as if information was doled out slowly, over the next 12 months, to the Department of Justice. Do you have knowledge of that?

HONORABLE WAUGH: No. I mean, other than that I think somebody else asked me that question.

SENATOR LYNCH: How -- how about during the months of January, February, March, April, May, June? How frequently would you talk to Mr. Rover, on the phone, or in person?

HONORABLE WAUGH: Um -- I don't know. You know, it would depend on whether there was a specific issue that was being discussed. That might be a couple times a week. If there was no issue pending, it might be less.

SENATOR LYNCH: Do you have your calendar from 1997?

HONORABLE WAUGH: No.

SENATOR LYNCH: Did you keep your calendar in the Law Diary, like Mr. Zoubek?

HONORABLE WAUGH: No.

SENATOR LYNCH: Who kept your calendar?

HONORABLE WAUGH: My secretary.

SENATOR LYNCH: What happened to it?

HONORABLE WAUGH: I don't know. If you're asking me about meetings with Mr. Rover, most of the time, he either called, or he stopped by, so it would be unlikely that they'd be reflected on my calendar. I didn't -- I didn't have the sort of formal calendar that the Attorney General did.

SENATOR LYNCH: The first six months of 1997, would you say that you talked to Rover more than a dozen times?

HONORABLE WAUGH: Oh, I would think so.

SENATOR LYNCH: Much more?

HONORABLE WAUGH: I wouldn't be surprised.

SENATOR LYNCH: And, the record also indicates that then they began sending information -- Rover started sending information to the Department of Justice, and ultimately, getting to R-20, which, if we could put it up --

MS. GLADING: R-20?

HONORABLE WAUGH: Is that a document I

already have?

SENATOR LYNCH: I believe so.

MS. GLADING: Yes, it's also W-32.

HONORABLE WAUGH: Oh, yes. I have it.

SENATOR LYNCH: Would you identify that document?

HONORABLE WAUGH: It's a copy of a letter that was sent by George Rover to Mr. Posner dated November 5, 1997.

SENATOR LYNCH: Which -- not to be talking political, what happens to be the day after the election of November of 1997, correct?

HONORABLE WAUGH: If you say so, I was --

SENATOR LYNCH: If I said it was November the 4th, you would accept that, I guess, wouldn't you?

HONORABLE WAUGH: I was on -- I left for vacation, I think, before the letter was sent.

SENATOR LYNCH: Well, in this ultimate letter that goes out to Mark Posner from Mr. Rover, which is not indicated as having a copy to anyone, it defines a consensual motor vehicle search, does it not?

HONORABLE WAUGH: Which paragraph? Are you talking about the second paragraph?

SENATOR LYNCH: Yes.

HONORABLE WAUGH: Yes.

SENATOR LYNCH: Is that an accurate depiction of what a consent search is?

HONORABLE WAUGH: I think it may be inaccurate. I think that it's not probable cause. I think it's reasonable suspicion.

SENATOR LYNCH: And this -- and this -- this ultimate letter that went out to Posner from Rover had been the subject of at least two drafts prior to this going out on November the 5th, correct?

HONORABLE WAUGH: Right.

SENATOR LYNCH: And those drafts were reviewed by Attorney General Verniero?

HONORABLE WAUGH: Yes.

SENATOR LYNCH: So, now you have --

HONORABLE WAUGH: Well, wait a minute. There were two drafts that were sent in at the same time. There was not, as I understand it, a redraft that then went in. I sent in Rover's version. I sent in my version. I recommended that he send out my version. And that's what was authorized.

SENATOR LYNCH: So, you have a version that's dated November the 3rd, 1997, and Rover has the version dated October 31, 1997, which are drafts, I take it.

HONORABLE WAUGH: Which -- which exhibit is that?

SENATOR LYNCH: Your draft was November the 3rd, 1997 and Rover's was October the 31st, 1997?

MS. GLADING: That's W-31.

HONORABLE WAUGH: Do I have that?

MS. GLADING: W-31.

HONORABLE WAUGH: Yes, there were two drafts. And I don't think I have the document so I can't tell you what the dates were. But I received his draft, and then I think I did another draft. So they may have different dates.

SENATOR LYNCH: Now, leading up to this memo, even though you testified earlier that you knew ultimately that the Department of Justice would seek out whatever data they really wanted, but leading up to this memo, there is exchanges with you and Rover and others as to why we shouldn't be sending out consent to search information, correct?

HONORABLE WAUGH: There were -- there were memos and discussions about that issue.

SENATOR LYNCH: And since you didn't want an investigation -- characterize it investigation, and since you didn't want a consent decree, and since you didn't want a formal complaint filed, I suggest to you that your strategy was you had to fend off consent to search data, is that not correct?

HONORABLE WAUGH: I don't think so, Senator. I think that the decision was that when they asked for it again, they would get it.

SENATOR LYNCH: And you -- but you knew at this point in time, certainly by October of 1997, that the foundation for the Maryland consent decree was consent to search.

HONORABLE WAUGH: Right.

SENATOR LYNCH: And you knew that our information had been characterized, at least anecdotally, as similar to Maryland.

HONORABLE WAUGH: Right.

SENATOR LYNCH: Yet, the day after the election in 1997, a letter is sent to Posner which clearly mis-describes what a consent to search is. And I suggest to you that's a clear indication that you wanted to differentiate the New Jersey consent to search problem from the Maryland consent to search problem, is that not correct?

HONORABLE WAUGH: No.

SENATOR LYNCH: Are you suggesting to me that neither you nor the Attorney General nor Rover knew what a consent to search was?

HONORABLE WAUGH: I can't speak for Mr. Rover and I can't speak for the Attorney General.

SENATOR LYNCH: How about you?

HONORABLE WAUGH: I can tell you that I did not catch that error. And if your question to me is was it a deliberate error, I have no basis to believe that.

SENATOR LYNCH: Let me read your draft of November the 3rd, 1997, which I take it you have in front of you.

HONORABLE WAUGH: Right.

SENATOR LYNCH: Well, first let me do this, let me read the Rover draft, which is October 31. In the draft from Rover, October 31, 1997, on the second paragraph, it says, "In New Jersey, consensual motor vehicle searches must based upon a written consent executed by the motorists before the 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," underlined, "determines that there is probable cause to believe that there may be contraband in the vehicle." Is that correct?

HONORABLE WAUGH: That's what it says.

SENATOR LYNCH: Now, what two words are underlined?

HONORABLE WAUGH: After and thereafter.

SENATOR LYNCH: So, we're emphasizing that we have to go through this arduous procedure in order to do a consent to search, correct?

HONORABLE WAUGH: That's what it says.

SENATOR LYNCH: Right. And then you did a draft on November the 3rd in which the same language is employed and the emphasis remains the same on, "Such requests are only obtained after," emphasized, "a motorist has been stopped and only if the law enforcement officer thereafter," emphasized, "determines that there is probable cause to believe that there may be contraband in the vehicle," correct?

HONORABLE WAUGH: That's what it says.

SENATOR LYNCH: Do you understand what the significances -- the significance was at that point in time of emphasizing these two words?

HONORABLE WAUGH: I don't really recall, and I doubt that I paid much attention to it. I changed two sections of the letter and I indicated there that I had changed them and that is what I was anticipating.

SENATOR LYNCH: And what did you change?

HONORABLE WAUGH: I -- I think I could generally characterize it as I softened the letter because I think Rover's version was -- you know, we told them that we would consider objecting or something like that. And I just changed it.

SENATOR LYNCH: He employed the harsher language that suggested that the State would seriously consider objecting to the production of these documents and you changed that to -- you changed that to the State would ordinarily object to the production of these documents, correct?

HONORABLE WAUGH: Correct.

SENATOR LYNCH: And that's the form that went out into the -- to Posner.

HONORABLE WAUGH: That's my understanding.

SENATOR LYNCH: Wasn't this a pretty carefully edited letter?

HONORABLE WAUGH: Not carefully enough because I didn't catch the error with respect to the difference between probable cause and reasonable suspicion.

As I testified before --

SENATOR LYNCH: It doesn't say anything about reasonable suspicion. It says, in effect, it defines a consent search as not only requiring a written consent but also requiring probable cause, which would be a more difficult test than a probable cause search, wouldn't it?

HONORABLE WAUGH: That's what I said. I said that I didn't catch the error with respect to probable cause and reasonable suspicion.

SENATOR LYNCH: It wasn't being disingenuous at all, correct? There was no intent to being disingenuous and push them away from the relationship, the similarity between New Jersey and Maryland?

HONORABLE WAUGH: No, certainly not on my part. And I -- I doubt that there was -- very strongly doubt that there was on Mr. Rover's part. I think he just didn't understand the difference the way I didn't understand it.

SENATOR LYNCH: And the Attorney General, who saw all three of these --

HONORABLE WAUGH: Right.

SENATOR LYNCH: -- you think he misunderstood, as well?

HONORABLE WAUGH: You'll have to ask him that question. But, Senator, if what you're asking me is do I have any knowledge of any sort that would support the notion that this letter was deliberately misdrafted to deliberately misstate the law, my answer is categorically, no. I have no such information.

SENATOR LYNCH: How do you rationalize having the three of you handling such a significant inquiry in providing significant documentation to the U.S. Department of Justice and none of the three of you even understand what you're talking about?

HONORABLE WAUGH: What do you mean by rationalize? I mean --

SENATOR LYNCH: How can you --

HONORABLE WAUGH: How do I explain it?

SENATOR LYNCH: How can the three of you -- putting these drafts together to send this letter to Posner at the U.S. Department of Justice --

HONORABLE WAUGH: Because none of us--

SENATOR LYNCH: -- when you don't even know what you're talking about as a far as a consent search?

HONORABLE WAUGH: Because none of us had criminal justice experience. And if we had had criminal justice experience, we would have caught the error.

SENATOR LYNCH: If you had -- if somebody on this team had criminal justice experience, you would have known what a consent search was and you would have been able to retrieve all that data for the Department of Justice long before it ultimately went there, wouldn't you?

HONORABLE WAUGH: I don't follow the connection. Do you want -- can you explain what you mean, Senator?

SENATOR LYNCH: I'll withdraw it.

(Pause)

SENATOR LYNCH: When were you sworn in on the Superior Court?

HONORABLE WAUGH: January 23rd, I believe, 1998.

SENATOR LYNCH: And to your knowledge, who took your place as Executive Assistant Attorney?

HONORABLE WAUGH: My understanding is that no one got that title, that that title was not continued. But I think a lot of my duties were inherited by Nancy Kaplen.

SENATOR LYNCH: Who?

HONORABLE WAUGH: Nancy Kaplen.

SENATOR LYNCH: And did you call her to walk through what you had left behind?

HONORABLE WAUGH: I don't recall. She -- she certainly -- I mean she may have called me, I may have called her. But I don't remember any discussions. I think my understanding is that she didn't get this issue.

SENATOR LYNCH: Who did?

HONORABLE WAUGH: I know that -- from what I've seen, that at some point, Mr. Hespe had the issue. But --

SENATOR LYNCH: When did you learn that?

HONORABLE WAUGH: I think I saw his name mentioned in testimony.

SENATOR LYNCH: With your leaving toward the end of 1997 and Rover having freelanced on you before in another context and then, again, and during the course of 1997, didn't you think it incumbent upon you to notify the Attorney General or someone who was going to be taking your place that that was a concern of yours?

HONORABLE WAUGH: I don't think I thought of it at the time, but certainly in hindsight, I should have.

SENATOR LYNCH: No further questions.

SENATOR GORMLEY: Senator Matheussen?

SENATOR MATHEUSSEN: Judge, I just have a couple of questions for you.

You had indicated before -- actually you testified before that State Police said they didn't want to produce the documents, do you recall saying that? And if you can recall it, can you put us in a time frame of when you were talking about that?

HONORABLE WAUGH: My understanding from the May 20th meeting --

SENATOR MATHEUSSEN: May 20th?

HONORABLE WAUGH: 1997.

SENATOR MATHEUSSEN: Okay.

HONORABLE WAUGH: -- was that -- that -- and going up to that meeting was that there was an issue as to whether these documents should be produced.

SENATOR MATHEUSSEN: Can you tell me specifically what documents you were talking about?

HONORABLE WAUGH: The consent to search documents.

SENATOR MATHEUSSEN: Okay.

HONORABLE WAUGH: That there was a question as to whether they were -- went beyond the scope of what the Justice Department was looking at. That the purpose of the meeting in significant part was to discuss that issue.

The State Police had a lot of concern about a consent decree. And my understanding after the meeting was that the decision was that if the Justice Department asked for them again, they would get them.

SENATOR MATHEUSSEN: Was there a legal opinion that stemmed from that May 20th meeting with regard to the consent to search documents?

HONORABLE WAUGH: No.

SENATOR MATHEUSSEN: Did anybody in your office, including yourself, have a legal opinion as to what those consent to search documents meant with regard to where the Department of Justice might be going with their inquiry into this matter?

HONORABLE WAUGH: Did I have an opinion or did I ask somebody to write an opinion?

SENATOR MATHEUSSEN: Did you have an opinion? Did you have a legal opinion?

HONORABLE WAUGH: Well, I -- I mean clearly they were looking at the issue of consents to search.

SENATOR MATHEUSSEN: And did you have a legal opinion about what would have been the ramifications of those documents?

HONORABLE WAUGH: Those documents specifically, no. But I was aware that a selective prosecution or profiling, I guess, type of case could be made from those documents, as well as the stop issue.

SENATOR MATHEUSSEN: Who specifically in the State Police said that they were unwilling to give those documents over to Department of Justice?

HONORABLE WAUGH: I can't say that somebody said that they were unwilling. But what I understood is that they were very concerned about it. And I think I have the sense that they really didn't want them produced, but I don't know that anyone said that specifically. I'm --

SENATOR MATHEUSSEN: So, then before --

HONORABLE WAUGH: I don't remember, Senator. You know, dialogue from a meeting that took place four years ago, except for the couple of --

SENATOR MATHEUSSEN: I understand.

HONORABLE WAUGH: -- things that I testified about that stuck out. But my understanding of the meeting was the issue was should they be produced.

SENATOR MATHEUSSEN: Okay. Well, it is -- I don't want to quibble with you, but I think there is a very important distinction to be made. State Police concerned that these documents were damaging as opposed to State Police saying we don't want to give-up these documents are very, very different things. I mean you could be a defendant in the case and be concerned about the testimony that's against you or you could be a defendant in the case and not want to give that testimony. There's a big difference. And I think we're talking about --

HONORABLE WAUGH: I understand that.

SENATOR MATHEUSSEN: And I think we're talking about the integrity of the State Police at this point in time.

My question to you is you gave testimony before, and I wrote it down. The quote was that State Police said they didn't want to produce the documents.

Now, is it not your statement that it was -- they didn't want to produce the documents or was it that they felt the documents would be damaging? Which is it?

HONORABLE WAUGH: Well, looking at the question and the way you've asked it, I'm not sure. You can not want to produce documents without asking that they not be produced.

There -- there was an issue, Senator, as to whether the documents should be produced. I know that State Police was concerned about it.

And looking at the distinction that you've drawn for me, I can't sit here today and say that somebody from State Police definitely said they didn't want to produce those documents.

SENATOR MATHEUSSEN: Let's go up --

HONORABLE WAUGH: So, to the extent that I did testify to that, then I'd like to correct my testimony.

SENATOR MATHEUSSEN: So, it's that they knew that they were concerned about the documents.

HONORABLE WAUGH: Right.

SENATOR MATHEUSSEN: Was that concern also shared by the people in the Attorney General's Office?

HONORABLE WAUGH: I don't think it was shared in the same way that the State Police have.

SENATOR MATHEUSSEN: Well, how then --

HONORABLE WAUGH: Because --

SENATOR MATHEUSSEN: How then did the Attorney General's Office view these documents? Did they view them as being damaging?

HONORABLE WAUGH: I think we accepted -- I accepted what State Police seemed to be saying, and that is that they felt that there was a similarity between those documents and the ones from Maryland. And consequently, they could raise an issue.

But as to whether the documents would actually be damaging, I don't know that we have an opinion. And I don't know that the -- I don't know that that was relevant to the issue of whether they should be produced. Because the decision, as I said, is when they were asked for, they would be produced.

SENATOR MATHEUSSEN: Okay. Senator Zane asked you before what was your view of what was going on. In other words, did you actually think profiling was going on, not just on perhaps a very selected basis of a few State Troopers, but did you actually believe that profiling was going on?

HONORABLE WAUGH: I did not.

SENATOR MATHEUSSEN: You did not?

HONORABLE WAUGH: I -- other than -- I think you said a selected basis.

SENATOR MATHEUSSEN: On a very -- yeah, on a very small scale.

HONORABLE WAUGH: Right.

SENATOR MATHEUSSEN: There was some troopers who --

HONORABLE WAUGH: I don't think at that time I thought that there was a pervasive problem of racial profiling.

SENATOR MATHEUSSEN: Was that decision relative to the time of May 20th when we had these consent to search documents or was that sometime before or sometime after the May 20th consent to search document meeting?

HONORABLE WAUGH: I -- I don't think that I can answer that question because I think, to some extent, that was always my understanding. I mean there was an issue as to whether it was more pervasive, and that's what the Justice Department was looking at.

But if I had felt that it was more pervasive based upon what I knew at the time, I think I would have been more aggressive or suggested that we do something more than we were doing.

SENATOR MATHEUSSEN: And that was in spite of what you learned at the May 20th meeting?

HONORABLE WAUGH: Right.

SENATOR MATHEUSSEN: What was the opinion perhaps of D.A.G. Rover at that time?

HONORABLE WAUGH: I don't know.

SENATOR MATHEUSSEN: Did you ever ask him his opinion?

HONORABLE WAUGH: I didn't -- I didn't ask him that question as such. But I think that in conversations that he and I had, he probably expressed the view that he did not think that profiling was a pervasive problem.

SENATOR MATHEUSSEN: How about --

HONORABLE WAUGH: I mean if he had -- if he had told me that, that would have been something that would have caught my attention and I think I certainly would have reported that to the Attorney General that the person who's involved in the production of documents thinks that it's a pervasive problem.

SENATOR MATHEUSSEN: About -- how about D.A.G. Fahy, what was his view of it?

HONORABLE WAUGH: I -- I don't know. I mean I think the answer would be the same with respect to him. If he had -- if anyone had told me that was working on it that they felt that there was really a significant problem here and that it went beyond just individual troopers, I would have certainly brought that to the attention of the Attorney General.

SENATOR MATHEUSSEN: Is it my understanding that you knew of Sergeant Gilbert, but you do not recall being in meetings with him?

HONORABLE WAUGH: I knew of Sergeant Gilbert, and people have told me that I was at meetings with him and I have no basis to dispute that. But he was not one of the people that I really knew at the State Police. And I don't know how else to answer that. I don't recall ever interacting with him directly other than whatever conversation might have taken place at a meeting.

SENATOR MATHEUSSEN: The May 20th meeting, the consent to search -- I'll call it the consent to search meeting. The statistics that were talked about, where did those statistics, in your opinion, at that time, come from?

HONORABLE WAUGH: Well, I don't believe that there were specific statistics discussed. I think what the State Police said was they felt their numbers were similar to, or however it was phrased, the numbers that come from -- that were involved in the Maryland case. And I assume --

SENATOR MATHEUSSEN: Well, did D.A.G. Rover --

HONORABLE WAUGH: And I assume that that information came from State Police as opposed to someplace else.

SENATOR MATHEUSSEN: And who specifically at the State Police?

HONORABLE WAUGH: That I don't remember. If -- if Sergeant Gilbert was the one who addressed that issue at the meeting, it might have been him, if it was one of the, um, other officers who was there.

SENATOR MATHEUSSEN: But you did know that -- you testified earlier you did know that Sergeant Gilbert was the contact person in State Police for D.A.G. Rover.

HONORABLE WAUGH: Right.

SENATOR MATHEUSSEN: Who, in turn, directly reported to you.

HONORABLE WAUGH: Right.

SENATOR MATHEUSSEN: But no one at the meeting of May 20th revealed or concluded that sergeant Gilbert had, in fact, produced these consent to search documents.

HONORABLE WAUGH: Right. I'm sorry, produced the consent to search documents?

SENATOR MATHEUSSEN: Produced the numbers, the statistics for the consent to search.

HONORABLE WAUGH: I didn't know that there were specific statistics.

SENATOR MATHEUSSEN: You knew that the Department of Justice had this inquiry, gone to Washington, you had gotten the initial phone call. In your own mind, where did you think this was going to lead?

HONORABLE WAUGH: I thought it was going -- I thought that the Department of Justice would have gotten back to us sooner than they did, and said either we looked at this and we don't think there's a problem or we've looked at this and we think it's more of a problem than you do, and these are specific things that we think need to be done in order to address the problem.

And then there would have been a discussion as to whether that was going to be done through a consent decree or whether we would reach some sort of agreement short of a consent decree as to how that would be done.

SENATOR MATHEUSSEN: Were you more concerned about the D.O. -- the Department of Justice actually finding something wrong or were you more concerned, what you said before, about the issue? Meaning profiling.

HONORABLE WAUGH: I was more concerned about the issue.

SENATOR MATHEUSSEN: Do you think that was also the same concern that was shared by D.A.G. Rover?

HONORABLE WAUGH: As far as I know.

SENATOR MATHEUSSEN: And how about Attorney General Verniero?

HONORABLE WAUGH: As far as I know.

SENATOR MATHEUSSEN: But yet -- I'll ask you the same -- I'll tell you what I asked D.A.G. Rover a couple of days ago why was New Jersey willing to accept the Department of Justice's pace, were the words he used, pace, why didn't we proceed at our own pace in uncovering or trying to go back and taking a look at the issue of racial profiling? Why we were accepting what the D.O.J. wanted and not what we wanted to do?

HONORABLE WAUGH: The short -- I'd like to give a short answer and a longer answer. And the short answer is I don't think anyone ever considered trying to accelerate the pace. And the reason that I think that that was the case is because the Justice Department had called up. They said they wanted to look at the issue. They were going to make it as unobtrusive as possible. I think that's reflected in my notes. You know, we went down and met with them. The procedure was put in place.

As far as I knew, the documents were produced. And I don't think it occurred to anyone to say to them, gee, maybe you ought to be doing this more quickly than you are.  And I think probably the reason is because it was our understanding that it was not a pervasive problem, that it was -- that it was what I -- you characterized it before as -- you had a term, and I can't remember what it was -- selective. And so it didn't occur to -- it certainly didn't occur to me.

SENATOR MATHEUSSEN: But yet there was a conscious decision, and you mentioned it before, too, that if -- if we had come across documents or statistics that showed that racial profiling or something was going on on other roads other than the New Jersey Turnpike, we would not have -- and you would have not allowed under your direction the D.O.J. to have those documents, isn't that correct?

HONORABLE WAUGH: I don't think I would characterize it that way. And I understand that I -- there is -- there may be an inconsistency here. If I -- as I recall correctly, Mr. Rover told me that there were some documents that related to another roadway and I said -- or agreed with him, I don't remember which, I guess they don't need to be produced, if we had that conversation.

SENATOR MATHEUSSEN: Did he say --

HONORABLE WAUGH: And -- um -- and maybe later on, I would have taken a different decision. And certainly in hindsight, I probably should have. But that's -- that's what I think I said at the time, that they related to something different.

SENATOR MATHEUSSEN: Did he say those documents were damaging?

HONORABLE WAUGH: No. If he had said that -- if he had told me that there were documents that were damaging, I would have wanted the documents and I would have sent them to the Attorney General.

SENATOR MATHEUSSEN: To the Attorney General? I have no further questions.

SENATOR GORMLEY: Okay. Senator Furnari?

SENATOR FURNARI: Judge, I just have a few. And I know you've heard very similar questions go around this over and over, and I think it's because we have a very difficult time comprehending how this -- how this all fits. And I've read in the paper recently that people seem to confuse the issue. And I think you characterized it as the schizophrenic relationship of the Attorney General's Office with the State Police.

But I think every first year law student knows that the obligation of a Government lawyer is justice, that's the first thing.

HONORABLE WAUGH: I would agree with that.

SENATOR FURNARI: Okay. So, how is it that we seem to get lost or there seems to be, at least from what I'm reading, with this confusion about representing or wanting to go along with what the State Police believes even though maybe that isn't the best thing in pursuit of justice.

HONORABLE WAUGH: If you're asking me about the production of the consent to search data, my view was that those should be produced.

The decision, as I understood it, was that when they were asked for again, they would be produced. And they were produced.

SENATOR FURNARI: Okay. But the problem with that is, again, -- and as I understood your testimony before, it was you felt some degree of comfort that the Department of Justice would be investigating this issue. This issue that we've all agreed from the very beginning was an extremely important issue for the State of New Jersey. And that is racial profiling.

So, then we come to a crucial time where they make a request for a document, the most -- the highest ranking officials in the State of New Jersey meet and say, all right, we'll give it to them, quote, unquote, if they ask it again which, as I understand, means we're not going to give it to them right now.

HONORABLE WAUGH: Right.

SENATOR FURNARI: So, what we're saying is you weren't giving it. You were refusing to give a document. If they never got it, then how could they pursue justice?

HONORABLE WAUGH: Because, Senator, I'm aware of the fact that there is an inconsistency here. And all I can say is that it was my view that the Justice Department would come back and ask for the documents and that they would be produced.

In hindsight, there were a lot of things I wish had been done differently. This situation is what I would say is a -- is a public official's worse nightmare. It's a -- it's something that happened as it happened and now it's being put under a microscope. And in the basis of hindsight, I see, and I'm sure other people see things that should have been done differently. And you wish -- I wish that I had done them differently. But I'm telling you the way it happened.

SENATOR FURNARI: So, the problem for us, I think, is -- is that -- is that is that, in retrospect, what it is? In these -- these things don't look, to me, very much like things that only become clear under a microphone scope. You know, usually what I think if the Department of Justice sent in a request for a document and I was in pursuit of justice, the first thing I would say is, okay, well, we have to give it, not if they sometime in the future ask us again, we'll give it. Because if they don't, then I've defied my obligation to give it.

That's all I -- that's all I have.

SENATOR GORMLEY: Senator O'Connor?

SENATOR O'CONNOR: Judge, I have you testifying at this point just under five hours. So, it's my obligation to stretch this out so we can get to that point. I'm kidding. That's an attempt at humor.

I heard you testify, Judge, that it was your position all along that the Department of Justice should get the documents that they were requesting, right?

HONORABLE WAUGH: yes.

SENATOR O'CONNOR: That was probably five hours ago that you said that.

Did you hear or did you read of Deputy Attorney General Rover's testimony in which he said that at one point, when -- in his role as the person who was responding to document requests, he went to you with one such request and what he was told to convey back to the Department of Justice was that you were working on something -- not you, but the A.G.'s office was working on something and that he should -- he would get back to them when that was prepared. And that not to do anything unless the Department of Justice repeated the request and then to let you know about that.

Have you read about that or --

HONORABLE WAUGH: That wasn't me, that was somebody else.

SENATOR O'CONNOR: Okay. That was not you.

HONORABLE WAUGH: I think that was something that happened in November or December of '98, as I recall what I've read.

SENATOR O'CONNOR: And you testified that at least as far as Mr. Rover was concerned, you had frequent meetings with him, correct? And he reported back to you what was given to him by the State Police.

HONORABLE WAUGH: I -- I would -- I don't want to quibble, Senator, and I've said that. And I'm not sure I know what you mean by frequent. I mean every time he wanted to talk to me, he either called or he'd drop by. There were certainly a lot of meetings. And he was telling me what his interaction with the Justice Department was.

And I don't want to, you know, in the grand scheme of things, I suppose they were frequent as opposed to seldom.

SENATOR O'CONNOR: And you testified also that you had instructed him that he wasn't to do any freelancing.

HONORABLE WAUGH: Right.

SENATOR O'CONNOR: So, that what he did basically was under your direction?

HONORABLE WAUGH: What he was supposed to do was under my direction.

SENATOR O'CONNOR: Okay. And then can you tell us then, is there an explanation as to why, given your position, that the Department of Justice wasn't getting the documents they were looking for, why it took such a long period of time, or whatever it was that was produced for them. Why it came over such a long period of time.

HONORABLE WAUGH: No.

SENATOR O'CONNOR: There's no explanation.

HONORABLE WAUGH: As I've testified before, I had that conversation with him and I don't remember exactly when it was, but it was in one of two time periods. And I had the sense that he was holding things before he sent them out, and I told him clearly and uncategorically that -- clearly and categorically, I guess, that he was supposed to send stuff out when it was ready to be sent out.

And if he -- if he wasn't doing that, I was not aware of it.

SENATOR O'CONNOR: Thank you.

SENATOR GORMLEY: We are going to take a ten-minute break. We're going to come back and then we have MR. Zoubek to testify.

Just for the record, Senator -- on another matter, Senator Lynch and I are going to be reviewing the four-way on the nominee to be State Treasurer, but at approximately -- well, what we'll do is we'll -- at the end of -- we'll have to inform the Governor's Office, we'll do that review at the end of Mr. Zoubek's testimony. I just wanted that on the record just so people understand that that's another matter that's pending and we'll be doing that review. But obviously we have -- we'll ask them to wait until the end of the witness' testimony and then we'll go over and do that review. We'll take a break right now, we'll be right back.

HONORABLE WAUGH: Senator?

SENATOR GORMLEY: Yes?

HONORABLE WAUGH: Do I understand correctly from what you've said that you're finished with me?

SENATOR GORMLEY: You're finished.

HONORABLE WAUGH: Thank you. I --

SENATOR GORMLEY: Thank you.

(Recess)

SENATOR GORMLEY: Mr. Zoubek, would you please stand for the oath? Raise your right hand.

P A U L Z O U B E K, SWORN

SENATOR GORMLEY: Mr. Chertoff?

MR. CHERTOFF: Good evening.

MR. ZOUBEK: Good evening.

MR. CHERTOFF: Mr. Zoubek, you're currently the First Assistant Attorney General.

MR. ZOUBEK: I am.

MR. CHERTOFF: Now, when did you come over to the Department of Law and Public Safety?

MR. ZOUBEK: I started with the Department of Law and Public Safety on July 21st, 1997.

MR. CHERTOFF: And what was your assignment at that point in time?

MR. ZOUBEK: I was asked to come into the Attorney General's Office and the Office of the Attorney General as an Assistant Attorney General focusing on health care fraud issues based on some of the work I had done in the U.S. Attorney's Office.

MR. CHERTOFF: Did there come a time that your position changed?

MR. ZOUBEK: Yes. On December 8th, 1997, I left the Office of the Attorney General and I was sworn in as a Director of the Division of Criminal Justice.

MR. CHERTOFF: And when did you become First Assistant?

MR. ZOUBEK: I was sworn in as First Assistant Attorney General on March 22nd, 1999.

MR. CHERTOFF: All right. Let me direct your attention to your tenure as head of the Division of Criminal Justice.

First of all, were you involved up until February, 1999, were you involved in dealing with the Department of Justice in connection with a review or investigation by the Civil Rights Division of the issue of racial profiling? Again, before February of 1999?

MR. ZOUBEK: No.

MR. CHERTOFF: Who, to your knowledge, was responsible for dealing with that?

MR. ZOUBEK: I came to learn in February of 1999 that Deputy Attorney General George Rover had been involved in document production issues. And I came to learn also that over the years, perhaps David Hespe, former First Assistant, Alex Waugh, Executive Assistant General and Jack Fahy, along with Attorney General Verniero may have touched that issue.

MR. CHERTOFF: But, again, just to be completely clear for the record, before February, 1999, this was not part of your responsibility?

MR. ZOUBEK: No, it was not.

MR. CHERTOFF: All right. Now, was the Soto appeal -- for processing of the Soto appeal part of your responsibility before February, 1999?

MR. ZOUBEK: As the Director of the Division of Criminal Justice, any and all appeals I'm ultimately responsible for criminal appeals out of the Division of Criminal Justice. But there were no decision points for me in the Soto matter until sometime in February of 1999 -- January or February of 1999.

MR. CHERTOFF: Now, in 1998, did there come a time there was a shooting on the Turnpike?

MR. ZOUBEK: Yes, in the early morning hours, April 23rd, 1998.

MR. CHERTOFF: Okay. And as one of the follow-ons from that, did you get involved with something that became known as the Troop D audit?

MR. ZOUBEK: After some time and the involvement of the -- what has been called the Hogan and Kenna investigation regarding the incident on the Turnpike near Exhibit 7A, there did come a time where there was another audit that was developed which this Committee has referred, and others have referred to as the Troop D Audit.

MR. CHERTOFF: Who instructed that that audit be commenced?

MR. ZOUBEK: I had discussions with Lieutenant Colonel Robert Dunlop of the State Police. When I was Director of Division of Criminal Justice, he was the investigative, if you will, Lieutenant Colonel, and he's the person at the State Police I dealt with most frequently. And I believe that that was a suggestion that Lieutenant Colonel Dunlop had, consulted with me and it went forward.

MR. CHERTOFF: Now, the focus of that -- what we'll call the Troop D Audit -- and just to be clear for the record, that's the audit that was actually headed by Lieutenant Sachetti?

MR. ZOUBEK: I came to learn that he worked on that, yes.

MR. CHERTOFF: All right. That focused on the issue of falsification of records as it relates to racial profiling, correct?

MR. ZOUBEK: It was to focus on falsification of records with respect to the issue of race.

MR. CHERTOFF: And did you receive regular reports from somebody about the progress of that?

MR. ZOUBEK: I did receive reports. I wouldn't say that they were weekly or monthly. I did have a number of meetings and discussions with Lieutenant Colonel Dunlop, and then a couple of specific meetings with respect to that audit.

MR. CHERTOFF: All right. Well, tell us -- again, I want to keep you in 1998. In 1998, what were the -- what was the content of the conversations you had with Lieutenant Colonel Dunlop concerning the audit?

MR. ZOUBEK: Well, periodically checking on the status and whether the matter was moving forward. That was an audit that both Lieutenant Colonel Dunlop and I were focused on and wanted to make sure it moved. And at some time during the fall, I was concerned about the movement of that audit and asked to have a meeting. And I believe I had a meeting with Lieutenant Colonel Dunlop and others involved in the audit. My first full briefing as to their progress sometime in the middle of December of 1998.

MR. CHERTOFF: Now, what concerned you? Why did you call the meeting?

MR. ZOUBEK: I called the meeting because I wanted to see how we were progressing with the Troop D Audit.

The issue of falsification of records with respect to race I felt was a major concern, and it was something I wanted to see how it was progressing.

MR. CHERTOFF: Now, did you regularly -- I want to focus you on the period of time before this meeting, December, 1998. Did you regularly report to Attorney General Verniero concerning this audit?

MR. ZOUBEK: I informed him that the audit was occurring. I informed him that we had also seized records on the Turnpike to enable us to do the audit. And then periodically, I would update him that it was in progress.

But it was a substantial audit and I received a more substantial briefing sometime in December of 1998.

MR. CHERTOFF: Again, before December, 1998, did you report to anybody else besides the Attorney General concerning that audit?

MR. ZOUBEK: The Attorney General is who I reported to. So, that would have been the only person I would have reported to.

MR. CHERTOFF: You didn't go through Commissioner Hespe?

MR. ZOUBEK: I -- there are times at which Mr. Hespe may have been present. But my -- I considered myself as Director of the Division of Criminal Justice to be direct to the Attorney General.

MR. CHERTOFF: In any of the conversation you had with Mr. Verniero, until the middle of December of 1998, did Mr. Verniero ever indicate to you either that he would or that you should convey to anybody working with the Department of Justice, review any information relating to this audit or even the existence of the audit?

MR. ZOUBEK: During 1998, there was no discussion that I had with respect to information going to the Justice Department.

MR. CHERTOFF: And you had no idea what the Justice Department was looking for.

MR. ZOUBEK: I wouldn't say that. I think I, at some point in time, whether it was after the shooting, I was aware that there as a Justice Department inquiry investigation as it related to issues of racial profiling in the wake of the Soto case.

MR. CHERTOFF: But other than that general awareness, you were not, again, involved in any of the dealing with the discovery requests?

MR. ZOUBEK: I was not.

MR. CHERTOFF: That was Mr. Rover, right?

MR. ZOUBEK: I came to learn that.

MR. CHERTOFF: And by the same token, nobody assigned Mr. Rover to be part of what you were doing in terms of the Troop D Audit so that he could get the benefit or be aware of that.

MR. ZOUBEK: No, and I think it's important to understand that at that time, as Director of the Division of Criminal Justice, as a prosecutor, I reviewed the Troop D Audit as the beginning of a process for possible examination of matters that may or may not need to be prosecuted. And Mr. Rover was not in the Division of Criminal Justice. So, there was no need for me to consult with him at all.

MR. CHERTOFF: Now, also Mr. Fahy was involved during this point in time from time-to-time in dealing with the Soto appeal, correct?

MR. ZOUBEK: He -- he had tried the Soto case. There was another lawyer, Jerald Sims, in our Appellate Bureau who handled that. And he, at times, was consulted by Mr. Sims as it related to issues in the appeal. And I also came to learn was consulted at times through 1998 by Attorney General Verniero on issues with respect to racial profiling.

MR. CHERTOFF: And so, again, with respect to the work that your subordinate Mr. Fahy was doing as it related to Soto and racial profiling, he would report to the Attorney General directly outside of your chain of command.

MR. ZOUBEK: Well, I think I'd have to break that up between the racial profiling in general, the -- and the Soto case. The Soto case was an Appellate matter within the Appellate Bureau and he would, therefore, have provided assistance to the Deputy Attorney General handling that case.

As it relates to the racial profiling and the Justice Department, Mr. Fahy did, at times, directly work with the Attorney General on that issue.

MR. CHERTOFF: So, it's fair to say that with respect to that profiling responsibility of Mr. Fahy, you were out of the loop on that?

MR. ZOUBEK: I mean he would -- he had a practice of sending me -- if he was sending a memo to the Attorney General on issues, so I'd know what he was doing, in addition to his responsibilities in the State Grand Jury, he may, at times, forwarded me a copy of a document.

MR. CHERTOFF: But generally, you were not part of the meetings of the discussion, is that fair to say?

MR. ZOUBEK: I was not.

MR. CHERTOFF: Is it fair to say based on your experience at the time that in 1998 the only person in the Department of Law and Public Safety with an overview of the Troop D Audit, the racial profiling discussion for the Department of Justice, the Soto appeal and other matters with -- dealing with racial profiling was, in fact, the Attorney General himself?

MR. ZOUBEK: That would be correct.

MR. CHERTOFF: Everything else was -- all those individual parts of things were compartmentalized among various different people, but only one person had an overview?

MR. ZOUBEK: As Attorney General responsible for all those matters, yes, the Attorney General would have been in the position to have that overview.

MR. CHERTOFF: And to your knowledge, the Attorney General didn't bring anybody else in to the center to a take a comprehensive view of all these different issues, Soto, racial profiling, the Department of Justice and the Troop D Audit in 1998?

MR. ZOUBEK: I didn't understand that question?

MR. CHERTOFF: As far as you know, other than the Attorney General, there was no one in the Department of Law and Public Safety who was situated to have an overview of all of these various threads of activity that related to racial profiling.

MR. ZOUBEK: As Director of Division of Criminal Justice, I did have purview over portions of that. But, no, there was not anyone else assigned in the Office of the Attorney General other than, at times, David Hespe did have contact with respect to the racial profiling issue and at times issues with respect to the Justice Department.

MR. CHERTOFF: By the way, in the course of the conduct of the Troop D Audit in 1998, again before December -- mid-December, did you have conversations with Debra Stone concerning the Troop D Audit and the impact it might have on the Soto appeal?

MR. ZOUBEK: I had a number of conversations during 1998 with Debra Stone, who is one of the Deputy Directors in the Division of Criminal Justice moving forward, as we were examining issues in the Hogan and Kenna case and Troop D to make sure that we were paying attention to the impact that it may have on the Soto case.

MR. CHERTOFF: Did she express opinions to you about whether the Troop D Audit was reviewing facts that might affect the wisdom of going forward with Soto in 1998?

MR. ZOUBEK: We had a number of conversations that -- and I don't think they were ever really divided up Troop D Audit versus Hogan and Kenna. So, we did have a number of those discussions. And she did identify issues with respect to the concerns that she had regarding the Soto appeal.

MR. CHERTOFF: Did you convey those to Attorney General Verniero?

MR. ZOUBEK: I did in the latter part of 1998 and more 1999, which would have been consistent with getting more of a completed review of that case.

MR. CHERTOFF: In the latter part of 1998 when you conveyed these concerns to the Attorney General, what was his response?

MR. ZOUBEK: There was a discussion as it related to his understanding as to the reasons why an appeal was taken in Soto and why it was being maintained. Many of those issues have been discussed before this Committee, such as the reliability of the underlying analysis done by the defense in the Soto case. The issue of the shifting of the burden of proof in that case.

And in particular, the determination by Judge Frances that there was not a need for an individualized hearing to determine in a particular case whether racial profiling had occurred with respect to that single defendant.

MR. CHERTOFF: Well, I want to come back to the particular concerns raised by Ms. Stone in 1998. Did she -- and did you pass on to Attorney General Verniero her view that some of what was emerging factually from the Troop D Audit suggested perhaps it was inadvisable to push forward with the appeal because of facts about profiling might, in fact, be more unfavorable for the State than was previously thought?

MR. ZOUBEK: Well, I think it's important to put into context -- and I think she's testified this, too, at her deposition. She expressed to me that she had been opposed to the appeal originally and that she advised me that that was her position and that things were occurring in those investigations were strengthening that view.

MR. CHERTOFF: And the things that were occurring were new facts coming out suggesting falsification and things of that sort, correct?

MR. ZOUBEK: Yes. And I believe Ms. Stone is on record extensively in a couple of memos later in February and March with respect to some of her views with what was happening with the State Police and some of those observations were gathered earlier in 1998.

MR. CHERTOFF: But I want to stay in 1998. In 1998, she conveyed to you that she felt the facts being developed in the Troop D Audit and facts being uncovered were strengthening her argument against the appeal, correct?

MR. ZOUBEK: Yes. And, again, if I can, just for the record, she never identified and said because of the Troop D Audit. And I think it's important because it wasn't until later in 1998 that we received a full presentation as to what was beginning to be found in the Troop D Audit and we didn't receive a full description of that until February 10th, 1999.

MR. CHERTOFF: But incomplete as things were in 1998, did you convey her concerns to the Attorney General?

MR. ZOUBEK: I had -- I did have a general discussion with the Attorney General on the issue of the Soto appeal.

And he outlined to me the reasons why he understood the appeal was originally taken and why it was currently being maintained.

MR. CHERTOFF: And he didn't find any of these strengthened concerns based on what was being revealed? That didn't move him off the position of going forward with the appeal.

MR. ZOUBEK: No. And in some of those initial conversations, I, in particular, did also share the concern with respect to the fact that the -- as to the concern that the law had been set. That you could have the analysis done solely by statistics without any individualized analysis of the underlying case.

So, that's more of the discussions that was -- that were occurring at that time.

We had -- later on in 1999, additional discussions.

MR. CHERTOFF: I want to stay in 1998. I don't want to drift over into the next year yet.

In mid-December, you get a report on the status of the Troop D Audit?

MR. ZOUBEK: There was a meeting in which there was an oral report, but there was not any delivery of statistics. There was a general description that they were finding discrepancies. Some of them were race based.

And they were instructed to continue with that work. And once they had gotten to a point where they had a more complete analysis, I wanted to have a briefing that occurred later in February.

MR. CHERTOFF: Now, did you report on this to the Attorney General?

MR. ZOUBEK: I kept him informed that I had the meeting in December. That -- and he shared the concern with respect to the falsification issue and advised me that whatever resources we needed to put on that audit should be put on that audit.

MR. CHERTOFF: As of mid-December, was it your understanding that the way this audit was going to be conducted was in three phases, covering each of the three barracks on the Turnpike?

MR. ZOUBEK: That's my understanding. And, indeed, if I can, I'm only going to mention February 10th because it memorializes something that I received a synopsis of the audit at that time. And I think it reflects that on June 11th, 1998, Lieutenant Sachetti and his crew was ordered to do an audit of the Turnpike in all three of its barracks.

MR. CHERTOFF: And you understood there to be three phases, including a phase that went out -- that went beyond your comparison of discrepancies on the documentation and went underneath to look at even documentation that was on the surface. Fine.

MR. ZOUBEK: Yes, but I think it's important to recognize that if you look at the description of the Troop D Audit, Phase Three was supposed to be a random selection of stops that could be reviewed.

Phase Two did include looking behind the documents to determine whether there was any falsification.

MR. CHERTOFF: Now, in the course of -- again, in 1998, in the course of your getting reports and information concerning the Troop D Audit, did there come a point in time that you received a document indicating that there had previously been audits not related to falsification that dealt with the issue of racial profiling going back into 1996 and thereafter?

MR. ZOUBEK: Well, what I received sometime later in June of 1998, Debra Stone brought to me, and particularly brought to my attention, that there had been a prior audit with respect to Trooper Hogan and the record reflects that she gave me a synopsis of audits that were done by the staff inspection unit with the Internal Affairs and there were four or five audits that were done by a Lieutenant or Sergeant Hinkle that went -- some of them went back to 1995.

MR. CHERTOFF: Now, I'm going to show you -- ask that you be shown Z-3 for identification, which we'll put in front of you. And ask you if this was the package you got.

MR. ZOUBEK: Yes, I've reviewed my file prior to my deposition and I did receive this. To the best of my recollection, it was at the end of June, 1998.

MR. CHERTOFF: And there's considerable information in this concerning various types of reviews that had been done about statistics, including a document dated September 24th, 1996 at OAG 2074, which is entitled Patrol Issues Concerns at Moorestown Station.

MR. ZOUBEK: Yes, that's the document I have in front of me.

MR. CHERTOFF: Now, Ms. Stone gave you this and where did she say she got it from?

MR. ZOUBEK: She told me that she had received it from State -- quote, unquote, "State Police." I don't think she identified specifically where it came from. And she, in particular, drew my attention to the analysis that had been done out at Cranbury involving Trooper Hogan. Because at that point in time, that's what I was focused on was, as a prosecutor, with respect to that case and the Troop D Audit.

MR. CHERTOFF: And that's because, again, your responsibility at this point in time did not involve dealing with the Department of Justice or the general issue of the profiling, correct?

MR. ZOUBEK: That's correct.

MR. CHERTOFF: Did you discuss this with the Attorney General?

MR. ZOUBEK: I think I may have said to him at that point in time that we determined that there was a prior audit done on Trooper Hogan that resulted from some concern about his activities back in 1995. But I did not discuss with him some of the other audit information that's in here that, for the most part, deals with stop percentages. Which is not something that I was focused on at the time.

MR. CHERTOFF: Did he ask you about this audit or how the audit came to be?

MR. ZOUBEK: I think I explained to him how it came to be in the context of Trooper Hogan, and that that discussion relates more specifically to some of the investigation in that case.

MR. CHERTOFF: But did he ask you -- let me ask you this. Did he express surprise that there was any auditing going on with respect to individual troopers?

MR. ZOUBEK: No.

MR. CHERTOFF: Did he ask questions about what kind of auditing procedures had been going on?

MR. ZOUBEK: No.

MR. CHERTOFF: Did he direct you to communicate to Mr. Rover or anybody else in the Department of Law and Public Safety who was dealing with racial profiling to make them aware of this information?

MR. ZOUBEK: Again, keeping in mind that my recollection is is all I advised him on was a prior audit with respect to Trooper Hogan, which was in the context of a criminal investigation. He did not say that.

MR. CHERTOFF: Now, you agree with me that respect to Z-3, it's quite clear this material was not withheld from the Office of the Attorney General by the State Police.

MR. ZOUBEK: No. The record reflects that it was delivered to the Division of Criminal Justice in the spring of 1998.

MR. CHERTOFF: And, again, during this period of time in 1998, you really didn't -- you were never invited to participate in any discussion even though you were the head of the Division of Criminal Justice concerning the issue of racial profiling in general?

MR. ZOUBEK: No -- yes. As it relates to the Justice Department, no.

But after the discovery of the falsification issue and once I was informed of that by Lieutenant Colonel Dunlop, I viewed that matter to be of great significance to warrant a substantial investment of resources, not only on the Hogan and Kenna investigation, but on Troop D. I did advise the Attorney General with respect to that.

So, I viewed that as my work at that time with respect to the issue of racial profiling.

So, I don't want to give an impression that I wasn't doing -- or involved in discussion with the Attorney General on racial profiling.

MR. CHERTOFF: Now, my question is not whether you were involved or whether you were invited in to more general discussions concerning racial profiling as it involved matters outside the question of falsification. Were you made part of those discussions?

MR. ZOUBEK: To the extent to which I have learned that there were some discussions, for example, meetings with the Black Ministers' Council in May of 1998, I was -- I was not.

But I don't know if the record reflects a significant degree of activity with the Justice Department from April of 1998 through the end of 1998. So, I did not attend any meetings, but I also am not privy to all of the meetings that occurred.

MR. CHERTOFF: Now, you said you had a meeting in -- subsequent meeting in February of 1999 regarding the Troop D Audit.

MR. ZOUBEK: That's correct.

MR. CHERTOFF: And what was the date of that meeting?

MR. ZOUBEK: It was February 10th, 1999.

MR. CHERTOFF: Where did the meeting occur?

MR. ZOUBEK: It occurred in the fifth floor training at the Hughes Justice Complex here.

MR. CHERTOFF: And who called the meeting?

MR. ZOUBEK: I had asked for the meeting because I had the first briefing in the middle of December and I wanted to know what was happening with respect to the audit. So, I think it was set up ten days or so in advance.

MR. CHERTOFF: And who attended the meeting?

MR. ZOUBEK: I remember Lieutenant -- Colonel Williams attended the meeting, Lieutenant Colonel Fedorko attended the meeting, Lieutenant Colonel Dunlop attended the meeting. I think Lieutenant Sachetti may have been there. There's someone who -- Caseppi (phonetic), I think from the State Police. I may be butchering that name, I apologize. I believe Debra Stone was there from the Division of Criminal Justice. Chuck Grinnell or Charles Grinnell may have been there. I am not sure whether or not Jim Gerrow, who we had brought in the Special Prosecutor in the Hogan and Kenna case was there or not.

MR. CHERTOFF: Now, you received your report at that time about the Status of the Troop D Audit?

MR. ZOUBEK: I received a presentation as to the status of the Troop D Audit. I also received a synopsis -- a two-page synopsis of the audit, as well as for the first time aggregate statistics out of Moorestown and Cranbury, I believe, that broke down percentages of stop by squad and by trooper.

MR. CHERTOFF: Now, with respect to the Troop D Audit, what were you advised about what had been discovered at that point in the Troop D Audit?

MR. ZOUBEK: Generally, what I was advised in the update was that there was a concern Lieutenant Colonel Dunlop had at some point that the Troop D Audit may be veering off its original course.

Its original course that we had agreed to was to focus on race based discrepancies, not just if, you know, there's a not a document in the file that doesn't have anything to do with race. And I was advised as to where they were in terms of the completion of the phases they had completed at that point in time and I recall the documents that I received, as well, I believe you have a redacted copy of a portion of those documents identified somewhere between 10 to 12 troopers that were going to be referred.

I think it's important to keep in mind that what Lieutenant Sachetti was doing was an inspection audit. And what would happen is if there was an issue that they wanted to have an Internal Affairs investigation, that would then get turned over to another group within Internal Affairs. And I think they had identified ten to 12 troopers that they said they were going to process for those types of Internal Affairs referrals.

MR. CHERTOFF: Now, with respect to the actual status of the audit, was it complete?

MR. ZOUBEK: There were -- the -- it was -- there were portions of it that were complete. But there was -- there was work that needed to be done.

MR. CHERTOFF: And was it your understanding or was it your directive at the close of the meeting that the work continue forward?

MR. ZOUBEK: Absolutely. And I had offered before to add Division of Criminal Justice personnel to it. I checked what was necessary at that time to put additional staff on that to move that along. And that was one of the other focuses of that meeting.

MR. CHERTOFF: And you understood at that point that -- even apart from the ten to 12 troopers who were referred for Internal Affairs reviews, there were a larger number of discrepancies regarding to racial identification that had been uncovered.

MR. ZOUBEK: That -- the way it was described to me was that they had broken out the ten to 12 at that point in time. I don't know that I agree with -- there was a much larger group with respect to racial numbers. I know that there was a number had been thrown around like a hundred and fifty troopers. I think that deals with general discrepancies, not with respect to race based discrepancies.

MR. CHERTOFF: Now, as of the close of the meeting, therefore, your mandate was to go forward, correct?

MR. ZOUBEK: Absolutely.

MR. CHERTOFF: And, in fact, there came a time in early March where you -- did you become aware that they had an additional personnel to assist in moving forward with that audit?

MR. ZOUBEK: I -- I have become aware of that after the fact. It was certainly consistent with my instructions was that we needed more people, I asked them to assign more people so that it could be completed expeditiously.

MR. CHERTOFF: Now, that meeting on February 10th occurred in the morning?

MR. ZOUBEK: Yes, it did.

MR. CHERTOFF: That afternoon, you had another meeting with Attorney General Verniero, correct?

MR. ZOUBEK: Yes.

MR. CHERTOFF: And how did you come to have that meeting?

MR. ZOUBEK: I was called up to the Attorney General's Office.

MR. CHERTOFF: And who was there?

MR. ZOUBEK: Attorney General Verniero and First Assistant David Hespe.

MR. CHERTOFF: What were you told?

MR. ZOUBEK: I was advised that the Attorney General was calling for a State Police Review Team to look at a number of issues with respect to the State Police.

MR. CHERTOFF: And had you been consulted about that previously?

MR. ZOUBEK: Not specifically with respect to the initiation of a State Police Review Team.

MR. CHERTOFF: What did Mr. Verniero tell you about the reason he wanted to initiate the State Police Review Team?

MR. ZOUBEK: That he was frustrated as it related to inadequacy of responses from the State Police on a couple of issues, including Internal Affairs promotions and some other issues.

MR. CHERTOFF: Well, let's talk about Internal Affairs. What did he say to you was the problem with Internal Affairs?

MR. ZOUBEK: He mentioned Internal Affairs. I had been involved for a period of two to three months on working specifically on some concerns I had with respect to a couple of the egregious instances where I had found that matters had not been referred over to the Division of Criminal Justice from Internal Affairs that should have been referred over.

MR. CHERTOFF: And with respect to those matters, were you, in fact, in process of dealing with Internal Affairs at the State Police and working out some new protocol as to how to handle these matters?

MR. ZOUBEK: I had put together a proposal. I had met with Colonel Williams. But Colonel Williams, at that time, had rejected the proposals because he thought they were unnecessary, and I strongly disagreed with him.

MR. CHERTOFF: And when was that rejection?

MR. ZOUBEK: I think it would have been some time in January.

MR. CHERTOFF: And so what did you do when he rejected the proposals?

MR. ZOUBEK: I -- I talked to him further about what I thought would be the -- a help to the State Police by making some changes in what was known as S.O.P. B-10 that dealt with internal referrals. And that that was a matter that I thought would be of assistance to the State Police.

But that had not been resolved as of February 10th.

MR. CHERTOFF: So, you were still discussing it with him?

MR. ZOUBEK: It was still open.

MR. CHERTOFF: And, again, as we've indicated, that morning you had been given a report about the status of the Troop D Audit and you were satisfied with the progress then, correct?

MR. ZOUBEK: Yes.

MR. CHERTOFF: And what else was there that Mr. Verniero identified for you as the reason he wanted to have a State Police Review?

MR. ZOUBEK: I think those were the -- those were the general responses that he wanted to do a broad look on a number of issues at the State Police to make sure the practices, procedures and policies were in place that the public could have confidence in.

MR. CHERTOFF: Just so we're clear with this, the two -- the two items he identified as precipitating this desire to have an outside State Police Review were the issue of responsiveness on the Troop D Audit and responsiveness on the issue of the Internal Affairs protocols?

MR. ZOUBEK: No, I don't -- I -- with all due respect, I don't think I said responsiveness on the Troop D Audit.

MR. CHERTOFF: Okay. So, other than the issue with the protocols, which was under discussion, what else did he identify as --

MR. ZOUBEK: Well, I think if I can, I mean he handed me an announcement of the State Police Review Team. And that document has on it -- it's dated February 10th. I think it has Internal Affairs, Hiring, Promotions, and the handling of complaints from the public, that's the best of my recollection. But if you can refresh it, I'd appreciate it.

MR. CHERTOFF: Well, let me show you Z-9. We'll put it up, it's the press release dated February 10th. And it identifies as a focus --

MR. ZOUBEK: Yes. And it refreshes my recollection in another matter, which is at the end of January, beginning of February, we had received a number of additional lawsuits by troopers that raised issues with respect to how troopers' complaints were being handled.

MR. CHERTOFF: All right. Now, there's nothing in this release about racial profiling, correct?

MR. ZOUBEK: Not specifically as to the issue of racial profiling.

MR. CHERTOFF: And so is it fair to say that on February 10th, you were not told that the State Police review would be studying racial profiling?

MR. ZOUBEK: Yes and no. I mean some of the issues here were viewed as having an impact on the racial profiling issue.

But in terms of doing a review of getting to the bottom of whether racial profiling, per se, was occurring, no.

MR. CHERTOFF: And you were also told that this would be a four-month time frame for purposes of completing this review, correct?

MR. ZOUBEK: Correct.

MR. CHERTOFF: Now, then is it fair to say within a day or two thereafter, there was a change in focus that you received with respect to this review team?

MR. ZOUBEK: I don't say change in focus. An additional focus.

MR. CHERTOFF: And what was the additional focus?

MR. ZOUBEK: I think additional focus was on the issue of getting to the bottom of whether racial profiling was occurring. I think there were substantial criticisms, if you will, as to the announcement of the State Police Review Team about there's a need at this time to look at the issue of racial profiling. And that was added.

MR. CHERTOFF: Now, before -- how did you come to learn that your mandate was not going to be expanded to include a focus on racial profiling?

MR. ZOUBEK: I think within the 24-hour to 48-hour period after the announcement of the State Police Review Team, the General held a couple of meetings with reporters explaining the State Police Review Team.

And in one of those discussions, there was a focus by the Attorney General on getting more specifically to the bottom of racial profiling. That was announced and we moved to that, as well.

MR. CHERTOFF: So, is it fair to say, as you understand it, the way your mandate was expanded came about because the Attorney General said in a press interview he was going to have the Review Team look at racial profiling, and then you were subsequently contacted and told you're going to look at racial profiling?

MR. ZOUBEK: Well, I was -- I was there with them at the time. And I think it also -- I think I said in my deposition, I think that it was very -- a very logical addition because it was very logical initial criticism of the announcement of the State Police Review Team.

MR. CHERTOFF: But he didn't discuss that with you first, right?

MR. ZOUBEK: I was present with him when he was discussing it.

MR. CHERTOFF: With the reporter?

MR. ZOUBEK: Yes.

MR. CHERTOFF: He didn't -- in other words, before he went to talk to the reporter, he didn't say at any time prior in substance, Paul, as long as we're doing this, should we take a look at racial profiling?

MR. ZOUBEK: No.

MR. CHERTOFF: Now -- and at that point in time, you had no knowledge, of course, as to what reviews had been done with respect to racial profiling, correct?

MR. ZOUBEK: It --

MR. CHERTOFF: As of February 12th?

MR. ZOUBEK: Well, you --

MR. CHERTOFF: Or thereabouts.

MR. ZOUBEK: I don't think that's --

MR. CHERTOFF: Except for the Troop D Audit.

MR. ZOUBEK: I don't think that's correct because I had been involved in the Hogan and Kenna investigation. The Troop D Audit, I did see some documents in June of 1998 and I was generally involved in the discussions on racial profiling. I just want to make sure the record's clear.

MR. CHERTOFF: But you were not certainly part -- you were not in a position to have -- let me withdraw the question.

You were not conversant in all the aspects of the reviews that had been done with respect to racial profiling as of February 12th, 1999, right?

MR. ZOUBEK: No.

MR. CHERTOFF: When you say no, you mean you were not --

MR. ZOUBEK: No, we got -- we got lost in those questions, both of us.

MR. CHERTOFF: Okay. So, now you -- a couple of days after February 10th, you get asked to take on this racial profiling issue, correct?

MR. ZOUBEK: Yes.

MR. CHERTOFF: And it's the first you learn about the notion of having a review of racial profiling is in this press interview, correct?

MR. ZOUBEK: Yes.

MR. CHERTOFF: Now, at what point did you actually start to learn about the nature of this Department of Justice Review of racial profiling in the State of New Jersey?

MR. ZOUBEK: I think that came about in the first two weeks, if you will, I believe that what happened was there were a number of calls challenging the ability of the State Police Review Team to do this kind of investigation and calls from the Justice Department to become involved in an investigation.

And I think in the context of that, the Justice Department, for the first time, revealed publicly that they did have a review -- under the Pattern and Practice Statute, Civil Statute of the New Jersey State Police.

And then I think the record reflects that on February 16th or 17th, that was announced.

And on the 17th of February, there was a letter forwarded by the Attorney General to the Justice Department explaining aspects of the State Police Review Team. And on that day, the 17th, I met with the Attorney General and Rover as it relates to the Justice Department investigation.

MR. CHERTOFF: All right. So, to put it into context, before February of 1999, the existence of this Civil Rights investigation was not publicly known, correct?

MR. ZOUBEK: I believe that's correct.

MR. CHERTOFF: And it was only in February in response to increased clamber for a Civil Rights Division investigation and criticism of the State Police Review Team that the Department of Justice, for the first time, went public and said you know, we've been investigating this, right?

MR. ZOUBEK: You're correct. It was the Justice Department --

MR. CHERTOFF: And --

MR. ZOUBEK: -- that took that step.

MR. CHERTOFF: And, in fact, the Attorney General of the State responded to that announcement by the Department of Justice by essentially informing the Department of Justice that we had a State Police Review Team and that was going to look at the problem, right?

MR. ZOUBEK: Yes, but I -- in that, I don't presume that that was the first that the Justice Department was learning about the fact that we were doing the State Police review.

MR. CHERTOFF: Well, how did they first learn about it?

MR. ZOUBEK: I would imagine that -- I gleaned from my discussions with them that they're on line and they read the New Jersey newspapers and they learned about it.

MR. CHERTOFF: Now, when you got involved in this issue of profiling in February as part of the State Police Review Team, was Mr. Hespe involved in this? Did he become part of this?

MR. ZOUBEK: Mr. Hespe, I think, the February 10th announcement mentions me as an incoming First Assistant Attorney General.

I think I had accepted that position shortly before that time. And I think it had been already -- I don't -- I think it had been announced at that point in time or was about to be announced that First Assistant David Hespe was going over as Commissioner of Education.

So, at some point before March 22nd when I was sworn in as First Assistant, I did have some conversations with him in transition.

MR. CHERTOFF: So, at that point, you report directly, again, to the Attorney General -- Attorney General Verniero with respect to the State Police Review Team.

MR. ZOUBEK: Correct.

MR. CHERTOFF: And you said a letter was written to the Department of Justice after this Review Team was formed and after the announcement of the public -- the public announcement of the Civil Rights investigation?

MR. ZOUBEK: I think there was a letter dated February 17th.

MR. CHERTOFF: And what was that -- what was that -- what did the letter indicate?

MR. ZOUBEK: I think it was advising the Justice Department more specifically about the State Police Review Team and saying that the Review Team would be cooperating with the Justice Department.

MR. CHERTOFF: Now, a time came that this -- I'm going to try to look into the letter actually to be more specific. But while we locate now, let's move on a little bit.

I take it at this point you become aware or you were already aware that George Rover had, up to that point, been the designated lawyer for the Department of Law and Safety and communicated with the Federal Department of Justice, correct?

MR. ZOUBEK: Yes. My calendar reflects on February 17th, I had a meeting with the Attorney General and Deputy Attorney General Rover with respect to that letter. And after that meeting, I sat with Rover and spoke with him about his involvement.

MR. CHERTOFF: So, the Attorney General, Mr. Rover and you talked about this letter of February 17th to go to the Justice Department.

MR. ZOUBEK: Yes.

MR. CHERTOFF: Which is Z-8.

MR. ZOUBEK: You know better than I.

MS. GLADING: I'm sorry.

MR. CHERTOFF: Z-13. Well, let's put it up. It's February 17th. Is this the letter we're talking about to Mr. Lee?

MR. ZOUBEK: Yes.

MR. CHERTOFF: All right. And this was -- how was this letter actually prepared?

MR. ZOUBEK: I believe -- and I don't recall specifically. But I believe the Attorney General -- frankly I'm trying to remember who L.G. worked for at the time, that's the secretary, and I can't recall whether it was David Hespe. I believe she worked for the Attorney General at the time.

MR. CHERTOFF: All right. And who drafted the letter, do you know?

MR. ZOUBEK: I do not know. I did not.

MR. CHERTOFF: Now, going into the letter just for a second, did you review it before it went out?

MR. ZOUBEK: I probably did.

MR. CHERTOFF: Now, after this letter was prepared, you had talked to Mr. Rover --

MR. ZOUBEK: Yes.

MR. CHERTOFF: -- correct?

MR. ZOUBEK: That's correct.

MR. CHERTOFF: And what did you ask him to do?

MR. ZOUBEK: Well, I asked Mr. Rover very generally, you know, what have we sent down. And I asked him what do the documents show.

MR. CHERTOFF: What did he say to you?

MR. ZOUBEK: I don't know.

MR. CHERTOFF: And so what did you tell him to do?

MR. ZOUBEK: I told him that I wanted -- as soon as possible, I wanted an accounting of everything that had gone down to the Justice Department. And I also wanted some statistical analysis done or computation done of the documents that we had sent down, to the extent to which we could get that done as soon as possible.

MR. CHERTOFF: And did you get that memo on or around February 26th?

MR. ZOUBEK: There is a memo dated February 26th. I don't recall whether it was hand-delivered that day or I received it the beginning of next week.

MR. CHERTOFF: And did it come with a bunch of boxes?

MR. ZOUBEK: I think it came with some boxes, yes.

MR. CHERTOFF: All right. Now, I'm going to show --

MR. ZOUBEK: I -- I may have gotten the letter and the boxes may have been separately delivered to someone else, but I did get the letter.

MR. CHERTOFF: Now, I'm going to show you

Z-14, which I want to put up, and that's a memo to you of February 26th, 1999. Is this the memo that came with the boxes?

MR. ZOUBEK: This is the memo I received.

MR. CHERTOFF: All right. Now, if you look at the third page, it talks about numerous documents that have not been -- I have not produced to D.O.J., and they include the following. And among those are July 5th, 1996 I.A.B. motor vehicle stop ordered at Moorestown Station, audit I.A.B. Perryville, Washington Station, Hunterdon County Statistics, Gloucester County Database Arrest Data. Now, do you remember reading this?

MR. ZOUBEK: I do.

MR. CHERTOFF: Did you have a discussion with Mr. Rover about how it is that these documents did not get produced?

MR. ZOUBEK: Well, initially I received -- I received this letter and I did have subsequent discussions with him, but I did discuss at my deposition that there was, what I would call, an intervening event that meant that I did not -- I did not meet with Mr. Rover immediately on those.

MR. CHERTOFF: That's when Mr. -- Superintendent Williams left, right?

MR. ZOUBEK: That's correct.

MR. CHERTOFF: All right. But at some point thereafter, you did, in fact, talk to Mr. Rover about this memo, right?

MR. ZOUBEK: I did.

MR. CHERTOFF: And you expressed concern about the fact that there were documents that had not been produced.

MR. ZOUBEK: I did.

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

MR. ZOUBEK: He said that it was his understanding -- he reviewed for me the nature of the discussions with the Justice Department that a sample, if you will, request form in blank had been received by the Justice Department, and that there had been very little correspondence from the Justice Department, and there had been some oral request from the Justice Department and an attempt to determine what should go to the Justice Department or not.

And then at that point in time, I viewed what I was doing in the State Police Review Team as a new look at this issue, not wedded to prior litigation positions. And at that point in time, I assigned an evaluation of the production and ensuring that we had a complete production to someone in the Division of Criminal Justice.

MR. CHERTOFF: Well, now let me ask you this, with respect -- did you actually see the sample request that he talked about?

MR. ZOUBEK: I don't know if I did in that conversation with him, but I did see it during the spring of 1999. Prior to my -- prior to my going down to the Justice Department on March 19th.

MR. CHERTOFF: And did you see the various -- did you actually view the documents that were identified here as not having been produced?

MR. ZOUBEK: I did not -- I did not specifically review this. I signed those to be reviewed. And I hadn't reviewed those all before I went down to my initial meeting with the Justice Department on the 19th.

MR. CHERTOFF: It was clear to you, though, from the face of this memo that there were audit materials and statistical materials that had not been produced to D.O.J., correct?

MR. ZOUBEK: That's what's set forth on the list. What I was trying to determine was if you look at the sample request that had come in from the Justice Department and looked at the document request or what was in writing, their initial request would purport to call essentially for every document that existed in the State Police from '94 to '96 at every single barracks in the State. And I had been told that there had been negotiations which limited that down. The problem that I had was recreating in any written format of the narrowing down of that request.

MR. CHERTOFF: Well, let me break it down. Did Mr. Rover tell you how the decision was made to withhold the documents that were identified in this memo?

MR. ZOUBEK: He had told me that some of the documents -- it was unclear as to whether or not they would go down or not. And that was essentially the list of those documents.

At that point in time --

MR. CHERTOFF: Let me stop you. Did he tell you that he thought these were materials that were called for by what the Department of Justice wanted?

MR. ZOUBEK: He told me that -- they were in the -- within the ambit, if you will.

MR. CHERTOFF: In other words, that he thought they were within the scope of what was called for.

MR. ZOUBEK: Within the scope of the sample request.

MR. CHERTOFF: And did he tell you how the decision was made not to send this material down?

MR. ZOUBEK: I spoke with him. And he said that there had been some discussions and they weren't clear as to whether some documents can go and some documents shouldn't go.

And at that point in time, what I did was I removed --

MR. CHERTOFF: Let me stop you, you're getting ahead of me.

MR. ZOUBEK: All right.

MR. CHERTOFF: My question is who did he have the discussions with about whether it should go or not go?

MR. ZOUBEK: I did not ask him specifically who he had those discussions with. From the file, I had seen that he had had contact with Executive Attorney General Waugh and perhaps at times the Attorney General.

MR. CHERTOFF: In fact, did he tell you generally that what he did with respect to the decision to withhold the documents he did in consultation with Attorney General Waugh and sometimes Attorney General Verniero?

MR. ZOUBEK: No, I did not get to that point. Because at that point in time, I was not able to glean a clear document production and analysis from Deputy Attorney General Rover.

I then removed him from the process and had him reassigned.

MR. CHERTOFF: Here's my question: At any point in time from February, 1999 to the present moment, did Mr. Rover tell you who made the decision to withhold the documents or some of the documents that are contained in this memo?

MR. ZOUBEK: I only learned about that in the course of reading the depositions and testimony in this matter.

MR. CHERTOFF: Well, I want to remind you of your testimony at Page 144 of your deposition. When at Page 18, I asked you the question I just asked you a second ago, "At any point in time, from February, 1999 to the present moment, did Mr. Rover tell you who made the decision to withhold the documents or some of the documents that are contained in this memo?"

"THE WITNESS: He advised me that what he did, he did in consultation with Attorney General Waugh, and sometimes Attorney General Verniero."

Is that a correct --

MR. ZOUBEK: Well, and that's what I had said. But from my review of the file, that's what I had gleaned that that had happened. But I didn't have any more specific discussion with him.

MR. CHERTOFF: And Mr. Rover, in fact, told you that his chain of reporting was to Executive Assistant Attorney General Waugh and to Attorney Verniero.

MR. ZOUBEK: That's correct. But what I did not do was -- and I wanted to make sure this is clear, I did not go through -- this is item one, this is item two, this is item three, this is item four, five and six and go through why was this one not produced, why wasn't that one produced. So, I just want to make sure that's clear.

MR. CHERTOFF: But you understood generally from your discussion with him at some point in time that his decision -- that he was not making decisions about withholding material that was arguably within the scope of the request. He was consulting with Mr. Waugh and sometimes Mr. Verniero, correct?

MR. ZOUBEK: Yes.

MR. CHERTOFF: Now, then you went to talk to Mr. Verniero about this, right?

MR. ZOUBEK: I -- I --

MR. CHERTOFF: About this withholding.

MR. ZOUBEK: I -- I went to talk to him about my dissatisfaction with the way in which I thought this had been handled. And that I was going to review the production to make sure that everything that had to go down was evaluated to go down.

MR. CHERTOFF: And when you talked to Mr. Verniero about your concern about whether all the documents went down, what was his reaction?

MR. ZOUBEK: He told me at that time that I should review the documents, whatever I thought should go down should go down.

MR. CHERTOFF: Did you ask him whether he had been involved at all or had discussions with Mr. Rover about what was going down, what wasn't going down?

MR. ZOUBEK: I did not.

MR. CHERTOFF: Did he mention that he had discussions with Mr. Rover or Mr. Waugh about the issues of what goes down and what doesn't go down?

MR. ZOUBEK: He did not.

MR. CHERTOFF: By the way, if you go back to this memo of February 26th, there's an -- in item three of the documents not produced it talks about the statistical breakdown of motor vehicle stops for the sample base. Do you know what that is?

MR. ZOUBEK: I believe -- and I'm not entirely correct -- I believe that's what I had requested Rover to pull together, which was the statistical breakdown.

When I received it, I had the impression that it was after -- when I asked the question what did the documents show in terms of statistics, he says I don't know. I wanted to find that out. And that's what I was shown.

I don't know when that was created, but that was the context.

MR. CHERTOFF: Do you remember the document that it refers to if we show it to you?

MR. ZOUBEK: I believe they were some charts with respect to the stop statistics.

MR. CHERTOFF: Do you know what year for the sample days?

MR. ZOUBEK: Well, I think that's '95 and '96, which I think is the sample date.

MR. CHERTOFF: Let me show you G-25 for identification. It's a memo of July 10th, 1997 to Colonel Williams from Sergeant Gilbert.

MR. ZOUBEK: No, that's not the document.

MR. CHERTOFF: That's not the document?

MR. ZOUBEK: That's not the document.

MR. CHERTOFF: Do you remember the -- was it in box format?

MR. ZOUBEK: Yes.

MR. CHERTOFF: Is it a document that you later saw in a notebook provided to you by Sergeant Gilbert?

MR. ZOUBEK: I saw, again -- yes.

MR. CHERTOFF: All right. Let me show you

G-21 for identification and see if this is the one. It's a motor vehicle stop rate data information, G-21. Put it up on the board. All right, is this the document?

MR. ZOUBEK: I believe so.

MR. CHERTOFF: Now, again, this was in Mr. Rover's file, correct?

MR. ZOUBEK: Yes. What I'm not able to piece together at this point in time is, as I was told, no, I don't know what the statistics are, we don't have that. And then subsequently I get this document. I don't know whether the document was produced after the time I asked that question of Mr. Rover or it was a preexisting document.

MR. CHERTOFF: But it's your understanding that that's what's referred to by the statistical breakdown in motor vehicle stops from the sample dates that's identified in the memo of February 26th.

MR. ZOUBEK: Yes, because I had asked what do the sample dates show.

MR. CHERTOFF: So, again, it's clear that that wasn't withheld by the State Police, correct, because it was in Mr. Rover's file?

MR. ZOUBEK: Correct.

MR. CHERTOFF: Now, in your -- so, you have your discussion with Mr. Verniero. He doesn't talk to you at all about any degree of participation or knowledge he has about the process of producing things, correct?

MR. ZOUBEK: That's correct.

MR. CHERTOFF: Did he tell you he was involved at all in reviewing the manner in which material was furnished to the Department of Justice? As of this time, did he tell you that?

MR. ZOUBEK: No.

MR. CHERTOFF: Now, then you go meet with -- well, Colonel Williams is gone at this point, right?

MR. ZOUBEK: February 28th.

MR. CHERTOFF: So, you go to meet with Lt. Colonels Dunlop and Fedorko concerning the issue of production, correct?

MR. ZOUBEK: Yes, but that's -- that doesn't complete the picture because on February 26th, I had a meeting with Colonel Williams, Lieutenant Colonel Fedorko and Lieutenant Colonel Dunlop at that time to outline to them what my expectations were as to what we would be doing with the State Police review and what I would require from them, including contact persons and production of documents.

MR. CHERTOFF: So, this meeting on -- on March 11 is a follow up meeting?

MR. ZOUBEK: No. What happened was I had -- February 26th I had a meeting where I made the initial request for documents. I followed that up with a memo to, now it was Acting Superintendent Fedorko on March 4th, asking for -- for certain documents and information to be identified and then I had -- and then I had a meeting on March 11th.

MR. CHERTOFF: What was the discussion in the meeting?

MR. ZOUBEK: At March 11th, I met with the Acting Superintendent Fedorko and Lieutenant Colonel Dunlop and I had a general discussion with them as to what I expected was a complete -- and my understanding of what a complete document production was and that what I wanted was all documents that related to racial profiling, whether or not they believed they had come over in the past or not because I needed to know -- and responsible by constructive possession for anything that existed in the Department -- I needed to know everything that -- that existed.

MR. CHERTOFF: Now, on February 15th you saw Lieutenant Colonel Dunlop and Sergeant Gilbert, correct?

MR. ZOUBEK: I believe that's March 15th.

MR. CHERTOFF: I'm sorry. March 15th. And tell us what happened at that interaction?

MR. ZOUBEK: Well, I think -- if -- if I may before I -- I mention what happened that -- between the March 11th meeting and the March 15th meeting, I received a call from Mr. Rover who said he was aware that I had made some -- some requests from the -- from the State Police for documents and one of the reasons I had made that request is I had been informed by Deputy Director Stone that she believed that there were other documents over there that we had not gotten yet, in particular, I had indications that there may be documents involving senior staff of the State Police that, perhaps, had not come over yet and Rover told me that he would be over with Gilbert and others to see that all of that was pulled together and then on March 15th I had a meeting that involved Rover, Lieutenant Colonel Dunlop and some representatives of the Division of Criminal Justice.

MR. CHERTOFF: And at this point, did you get a notebook from Sergeant Gilbert?

MR. ZOUBEK: Yes, I -- I did and my understanding at that point in time was, since I had already received this production from -- from Rover who I had known had worked with Gilbert in the past and what I was receiving at this time was additional documents on March 15th.

MR. CHERTOFF: Now, did you ever have an opportunity to compare the content of the documents in the notebook you got on March 15th with the content of the files of --

MR. ZOUBEK: I --

MR. CHERTOFF: -- Mr. Rover?

MR. ZOUBEK: -- I eventually, before the issuance of the interim report, did go back and compare some of those -- some of those documents.

MR. CHERTOFF: And is it fair to say that there were documents in the notebook that were contained in Mr. Rover's files?

MR. ZOUBEK: Yes.

MR. CHERTOFF: Now, at the time you got the notebook, though, you hadn't done that comparison, obviously, correct?

MR. ZOUBEK: I was going to sip water. What -- what was the question?

MR. CHERTOFF: I said, at the time you received the notebook -- the blue notebook from Mr. Gilbert -- Sergeant Gilbert, you had not, obviously, had an opportunity to compare the content with what was in the files, correct?

MR. ZOUBEK: No, I did not and as I said going into that meeting, since I had already received the production from -- from Rover and I had an understanding that I was getting additional documents, that was the context in which I received the -- the now well-known blue binder on -- on March 15th, 1999.

MR. CHERTOFF: What was your reaction when you got it?

MR. ZOUBEK: I was -- I was upset.

MR. CHERTOFF: Why were you upset?



MR. ZOUBEK: Because I thought the document had a -- a variety of -- the binder had a variety of documents that went very much to some of the central core issues with respect to racial profiling.

MR. CHERTOFF: Let me ask that you be given a copy of that binder, which is G-33 and I want you to identify for us the documents that you thought went to the core issues of racial profiling that were in this notebook.

MR. ZOUBEK: I -- I think in particular I found the undated letter from -- the undated memo from Gilbert to Williams which was consistent with the information that I had received from Deputy Director Stone that there may be some additional analyses that had happened within the Superintendent's Office.

I was particularly concerned that I received in that -- in that document a comparison that said that the -- some of the numbers in one of the audits were higher than what was determined in the Soto case. I think there's an October memo from Touw -- Fedorko on that but I was particularly concerned and -- and learning for the first time that the State Police had been collecting on a monthly basis since 1997 and through 1998 stop and consent statistics out of the Moorestown and Cranbury Barracks and the --

MR. CHERTOFF: What --

MR. ZOUBEK: If I can, I can explain why that was of particular concern to me.

MR. CHERTOFF: Before we get to that, I want to first focus on the other documents you identified that go back a little bit further. You said there was an undated memorandum that you found very pertinent?

MR. ZOUBEK: Well, I -- I think, yes. I think that's the, we're in a very bad spot memo.

MR. CHERTOFF: And that's the one that's -- that we've now seen that is -- was created by Sergeant Gilbert and that talks about the comparison between the Maryland consent to search data and the consent to search data in New Jersey, correct?

MR. ZOUBEK: Yes.

MR. CHERTOFF: Now, we'll put up a -- we'll put up a version of that just so we're on the same page, so-to-speak. Is this the document we're talking about?

MR. ZOUBEK: Yes and I have them in front of me, as well.

MR. CHERTOFF: Now, there are two parts to that document. There's a part of that document, a second part that deals with the Gloucester County arrest statistics regarding the individual Troopers who are the subject of the Soto case, correct?

MR. ZOUBEK: Well --

MR. CHERTOFF: That's -- on Page 2?

MR. ZOUBEK: -- you know -- that's your description of the document. I -- when I reviewed it I considered it one -- one document.

MR. CHERTOFF: Okay. But as to that second page, do you know whether that, in fact, is the -- is the Gloucester County arrest data that's referred to in Rover's memo of February 26th?

MR. ZOUBEK: I've come to learn that that portion of it is.

MR. CHERTOFF: Now, the top -- the first page talks about the consent to search data with respect to Maryland and New Jersey, correct?

MR. ZOUBEK: Correct.

MR. CHERTOFF: And that struck you as significant, correct?

MR. ZOUBEK: Correct.

MR. CHERTOFF: Why?

MR. ZOUBEK: I had already one -- I -- consent searches are -- are relevant to the issue. I believe in my years of experience handling drug cases when I was in the U.S. Attorney's Office, I also in beginning the State Police Review I tried to examine this issue across the -- the Country and I had read some of the litigation documents in the Maryland case.

MR. CHERTOFF: Now, you said there was another document that indicated that the numbers in which somebody indicate, I think, Captain Tassel that the numbers are worse now than they were at the time of the Soto case. Can you find that document for us?

MR. ZOUBEK: Yes. It's a 10/4/96 memo regarding Internal Affairs recommendation to the patrol concerns at Moorestown Station to Major M. Fedorko. It is approximately -- I apologize, but this document does not have OAG numbers on it. It's probably about 15 or 20 pages into the blue binder.

MR. CHERTOFF: Okay. And this -- this is basically that -- what concerned you was it was an analysis of the percentage of minorities stopped by both minority and non-minority, troopers being hired, then the expert identified in the Gloucester County trial, right?

MR. ZOUBEK: That's correct.

MR. CHERTOFF: Now, the document which is referred to by that is, in fact, the patrol issues concerns at Moorestown Station document which in this -- in this binder is in the preceding page right before that memo you've talked about, right?

MR. ZOUBEK: That's -- that's correct.

MR. CHERTOFF: And did you later come to see that this document was actually transmitted to Attorney General Verniero in July of 1997 under cover page by Mr. Waugh?

MR. ZOUBEK: Yes and no. I do not believe that the Touw, the Fedorko portion of that is part of that -- and you can correct me if I'm wrong --

MR. CHERTOFF: I -- I believe that's correct. I'm talking about the -- the actual numbers that were discussed in the Touw memo were both contained in the blue binder and also sent up in a memo to the Attorney General in 1977, correct?

MR. ZOUBEK: I've come -- I've come to learn that.

MR. CHERTOFF: But, obviously, you didn't know that at the time?

MR. ZOUBEK: No and I think it's -- it's important to put in context on that March 15th meeting, I got pulled out of that meeting to be advised that the next day I would be having a -- an oral argument with the Appellate -- before the Appellate Division by phone, I should say, with respect to a request for a continuance of the argument in -- in Soto. So, what I was involved in for a 24-hour period, if you will, was trying to make a quick assessment but not a complete assessment of the blue binder.

MR. CHERTOFF: All right. We understand that. I just want to -- but just for the sake of clarity, the -- the documents you identified as significant were the undated memo by Sergeant Gilbert, the document that summarized the information about what was going on at Moorestown Station, more recently than Soto, and then two documents that set forth figures with respect to searches and stops in '97 and '98. Is that correct?

MR. ZOUBEK: Yes, if you -- you are including in that the compilations of Moorestown and Cranbury that were '97 and '98.

MR. CHERTOFF: Yes.

MR. ZOUBEK: Okay. Yes.

MR. CHERTOFF: All right. With those in mind, you went to see -- yes, you go meet to see the Attorney General?

MR. ZOUBEK: I did eventually, but I think it's important that that's not the first step that I took. I -- I gave copies of that blue binder to Debra Stone, Jack Fahy, to -- because those were people I was aware that was involved in that. Because I had believed that Rover was providing to me additional documents beyond the -- the February 26th memo, I called him and asked him about the undated Gilbert memo and he had -- he had informed me that he had not seen that before.

MR. CHERTOFF: Did he inform you that he was familiar with the content of it, that there had been a comparison made between the Maryland figures and the New Jersey figures that he was aware of?

MR. ZOUBEK: Not at the -- not in that 24 hour period. Subsequently, had -- general discussion on that.

MR. CHERTOFF: We'll get to that later. Then what did you do after you spoke to those people?

MR. ZOUBEK: I went to see Attorney General Verniero.

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

MR. ZOUBEK: I -- it was said that I have just received the production of documents that caused me concern and I think David Hespe was in his office at the same time or was brought in and I did not review the entire binder with him, but I drew his attention in particular to the monthly compilation for '97 and '98 of statistics from Moorestown and Cranbury and, as well, the undated Gilbert memo.

MR. CHERTOFF: Now, did you give him the book to look at?

MR. ZOUBEK: I -- I think I sat with him and pointed out portions and essentially asked the question, "Have you seen these documents before?"

MR. CHERTOFF: And what did he say?

MR. ZOUBEK: And he said, "No."

MR. CHERTOFF: What was his reaction?

MR. ZOUBEK: And he -- his reaction was, "Where have these documents been?" "Why haven't they been produced before?" "I want you to find that out."

MR. CHERTOFF: Did he tell you he was upset by anything in particular?

MR. ZOUBEK: I -- I think one of the particular focuses that we had and that -- by "we" I mean General Verniero, David Hespe and myself at that time -- where the monthly statistics were being kept out of Moorestown and Cranbury in '97 and '98 because I, in particular, had gone out on February 16th after meeting with the Black Ministers Council and said that we -- we don't have that kind of data easily available to us and, indeed, had written to three newspapers on February 8th, 1999 and advised them that it was impossible at that time to get stops broken down by race and consent broken down by race and here it was, I was seeing that this was easily accessible at the time.

MR. CHERTOFF: So, did he express -- the fact that he was upset about the fact that it was -- he was now learning for the first time that it's possible to compile data regarding consents to search based on race?

MR. ZOUBEK: No, he was upset that and -- and David Hespe had said that he -- he, David Hespe, had asked for -- for data like this before, in terms of the most recent period, and that he had been told by the State Police that it didn't exist.

MR. CHERTOFF: Who did Hespe say he asked?

MR. ZOUBEK: He -- he -- I presumed, at that time because generally between the First Assistant and the -- the Attorney General, most of the contact is with the Superintendent.

MR. CHERTOFF: In particular, you said that you focused his attention on summaries -- three documents, 1997 and '98 summaries of consent to search and -- and stop data and also the 1996 summary, which made the comparison to Maryland, correct?

MR. ZOUBEK: Yes, but I think you said three. Those are two, I consider --

MR. CHERTOFF: Well, there's a summary for '98, a summary for '97 and the '96 summary, correct?

MR. ZOUBEK: Fine.

MR. CHERTOFF: Now, with respect to these issues -- again, I want to be clear -- you directed his attention or there was discussion about what these documents showed in terms of the fact that it is possible to get consent to search data broken down by race, right?

MR. ZOUBEK: Correct.

MR. CHERTOFF: And he expressed -- and you expressed a concern about the fact that there had been representations made that this kind of consent data was unavailable, right?

MR. ZOUBEK: And the represent -- yes and the representations that I was talking about were representations that have been made in early February 1999 in a -- in a letter that was sent out to at least three news papers that specifically say -- and it's a letter from John Hagerty, the Press Officer of the State Police to those newspapers -- did say that -- that's not -- that's not available and it was my understanding from David Hespe that that's what he had been informed by the State Police.

MR. CHERTOFF: And it was clear to you that these -- each of these documents showed that it was impossible -- in fact it was possible to get a break down of consents to search by race because each of these documents, in fact, did that, correct?

MR. ZOUBEK: It was possible to get it from Moorestown and Cranbury. Technically, if you wanted to make a distinction and -- and perhaps that's what the State Police did at the time -- there wasn't any available for Newark, so it wasn't available for the Turnpike as a whole --

MR. CHERTOFF: For each --

MR. ZOUBEK: -- but it was available for Moorestown and Cranbury.

MR. CHERTOFF: -- for each of the '96, '97 and '98, correct?

MR. ZOUBEK: Ninety -- I was focused on '97 and -- and '98 because it wasn't -- the stops were not broken down on a consistent monthly basis. What had happened was, as shown in the blue binder, was these documents were being collected monthly, forwarded up the chain of command of the State Police as it relates to the stops and consents out of the Moorestown and Cranbury. I was focusing on '97 and '98.

MR. CHERTOFF: But I want to just bring you back to one of the documents you've identified as something that you've -- you directed Mr. -- Attorney General Verniero's attention to, which is this undated document. You'll agree with me that this also shows consents to search at Moorestown and Cranbury and at Newark, broken down by race, correct?

MR. ZOUBEK: Correct.

MR. CHERTOFF: And Attorney General Verniero told you in substance that he -- he never knew that this kind of comparison could be made?

MR. ZOUBEK: He told me he had never seen the document before.

MR. CHERTOFF: Did he tell you he had -- did not know that this kind of comparison could be made?

MR. ZOUBEK: That was not the discussion.

MR. CHERTOFF: Well, did he ever tell you, I was aware that they were -- let me step back.

MR. ZOUBEK: Well, I think --

MR. CHERTOFF: You --

MR. ZOUBEK: -- I --

MR. CHERTOFF: -- you --

MR. ZOUBEK: -- this -- that's -- that's the extent of my discussion on March 6 -- March -- that was my -- the extent of my discussion before I had to -- I had an Appellate Division argument at 11 o'clock or 1 o'clock that day and I was about to go down to the Justice Department on March 19th and -- so that was the extent of the discussion I had with him at that time. There was subsequent discussions I had with him.

MR. CHERTOFF: All right. Well, we'll get to that in a second, but did you leave the book with him, by the way?

MR. ZOUBEK: No.

MR. CHERTOFF: How long did you spend with him in this first interaction?

MR. ZOUBEK: A half hour, 45 minutes.

MR. CHERTOFF: And, at least in this period, he never told you he knew about the -- the fact that there had been comparisons made with respect to consent to search, correct?

MR. ZOUBEK: Correct.

MR. CHERTOFF: And he was angry -- he expressed anger about this, right?

MR. ZOUBEK: Anger as it related to the '97 and '98 data and the fact that if these had been requested by David Hespe and had not been produced that -- he was upset about that.

MR. CHERTOFF: So, now you go down to the Appellate Division argument?

MR. ZOUBEK: Right. Yes.

MR. CHERTOFF: On the telephone?

MR. ZOUBEK: Yes.

MR. CHERTOFF: And in that argument did the Judges express concern -- did -- did you indicate that you wanted to have or the State wanted to have the delay or a continuance in terms of filing the brief because there was now an examination underway regarding racial profiling?

MR. ZOUBEK: Yes and I think it was Judge Stern. I had the discussion with Judge Stern that he says, Mr. Zoubek, is what you're telling me that you also feel that you have some ethical issues as it relates to going forward on some -- some subject matters and I -- I did say that it was one of the concerns and before I had Deputy Attorney General's -- before them arguing, I wanted to complete portions of this review.

MR. CHERTOFF: Now, let me break this down. First of all, did one of the Judges say in the discussion that they were surprised or perturbed that years into this litigation, it was only now that the State was actually going to examine under -- investigate the underlying facts?

MR. ZOUBEK: Yes, I think that was Judge Braithwaite.

MR. CHERTOFF: And then there was discussion concerning continuing discovery obligations, both in the underlying case and before the Appellate Division that might be imposed if, in fact, it turned out that the facts you discovered supported -- tended to support the position of the defendants in the case?

MR. ZOUBEK: Yes and no. I think my presentation was that we were at a position where we were potentially reconsidering our pet -- opposition in the -- in the Soto case and the issue with respect to discovery obligations, which I'm -- I'm quite aware was -- was discussed and I -- I committed to the Court that I was aware of that issue.

MR. CHERTOFF: Now, let me try to be as straightforward as I can about this because we heard testimony earlier from you and others that the legal issue on the appeal in Soto has to do with shifting the burden of proof and whether you have to have, you know, whether this kind of statistical evidence is sufficient to warrant going forward.

MR. ZOUBEK: Well --

MR. CHERTOFF: But these issues that you're looking at here are issues of fact. Would you explain to us how it is that discovery of facts, for example, about consents to search, could alter the position of the State in the Soto case?

MR. ZOUBEK: Well, I think what I've testified to before is that I felt that this was a record that had been developed in 1988 to 1991 that was being interpreted as the State saying that racial profiling didn't exist and part of my general view of the Soto case was you have to step back as you were looking at racial profiling and whatever determination we made as the State Police Review Team, I thought would have a serious and substantial impact on the position in the Soto case and I thought it would be of moment to -- to have an opportunity to make that determination.

MR. CHERTOFF: But as it relates to discovery issues and ethical issues which you were discussing with the Judges, is it fair to say that you believed and the Judges expressed the view that a fax that emerged even after the record was closed, showed that there might very well be profiling and it would be a) incumbent to disclose that to you -- to your opponents; and b) perhaps necessary to advise the Appellate Division and change your position in resisting Judge Francis' decision?

MR. ZOUBEK: Well, I -- I think once the record is -- is closed, there are some limitations on what the Brady obligation and other discovery obligation is, but I think -- I think that what I -- my point was that if we were finding things that were being consistent and we were arguing that the database wasn't correct or the stop percentages weren't correct, but we're seeing similar stop percentages, that I wanted to know that answer before Deputy Attorney General stood up and argued in that case, particularly given the broad questions that were being asked during the Appellate Division argument.

MR. CHERTOFF: And the Appellate Division Judges agreed with that. They said, if you find after -- even after the fact more recently that the numbers remain consistent with Soto or are higher, that is a fact that you have some ethical obligation to disclose to us, correct?

MR. ZOUBEK: Yes and I -- I told the Court that part of -- that's part of what there would be a public accounting at the review.

MR. CHERTOFF: And by the way, that ethical obligation, that discovery obligation, that didn't arise for the first time in the law of New Jersey in 1999. That ethical obligation and legal obligation existed in 1995, '96, '97, '98, and as well as '99, correct.

MR. ZOUBEK: I think you can go back a few more decades then that.

MR. CHERTOFF: Well, we only need to go back within a reasonable period of time. So, it -- so, that it's completely clear, that at least as you understood it and as the Judges from the Appellate Division expressed their understanding, this kind of factual information was important from an ethical and discovery standpoint if, in fact, the State was going to continue to maintain its Appellate Division in Soto, correct?

MR. ZOUBEK: Yes -- yes and no. Because I think it's important that -- that generally, once we were looking at that position, I didn't think it was appropriate to continue the Soto case, but I'm not saying that specifically every single document that may come up in 1997 and '98 are -- are items that were required in discovery to be produced in the case that the record was '88 to '91.

MR. CHERTOFF: Let me ask you this question. Was it your understanding that in terms of this ethical obligation to disclose relevant facts, even if they arose subsequent in time, was it your understanding that one can discharge that ethical obligation by averting one's eyes from bad facts and not following -- not following leads? You know, does that -- when you're confronted with the possibility of --

MR. ZOUBEK: Mr. Chertoff, one's ethical obligation is one ethical obligation that -- I don't know if that's a question.

MR. CHERTOFF: Well, my question is this. You know, if you're confronted with the possibility that you may learn facts on investigations that are inconsistent with the position you previously took in court, I guess there are two possible responses. You could avoid learning the facts or you could go find out the facts and I think we've agreed --

MR. ZOUBEK: Well, I -- I think, if I can on one of the important points here is, if it's inconsistent with the position that you have -- you have taken, I think the State Police Review Team took some different positions that have been taken before on this issue and as we were doing that, I advised the Court that that's what we were in the process of doing.

MR. CHERTOFF: I'm asking a different question. As I understood where you were with the Court on -- on March 16th, you basically agreed with the Court that if this review revealed statistics that were somewhat inconsistent with the position that the State had previously taken in Soto, you have -- you'd have to reveal that to the Court and you might have to reassess your position. Is that fair to say?

MR. ZOUBEK: That's correct, but it didn't preclude the prospect of going forward potentially on some of the specific legal issues in that case.

MR. CHERTOFF: I understand, but it would certainly be something that would be disclosable and you should consider in terms of effect in your position, right?

MR. ZOUBEK: I think you should consider disclosing it. I would not say, particularly given some of the testimony that has occurred today that I have heard, that it's a blanket correct statement to say that every document that existed with respect to racial profiling in those 90,000 pages was required by the Attorney General's Office --

MR. CHERTOFF: That --

MR. ZOUBEK: -- to be produced.

MR. CHERTOFF: -- that's not what I'm saying --

MR. ZOUBEK: But I'm not saying --

MR. CHERTOFF: -- and I want to be very clear about this.

MR. ZOUBEK: -- I'm not saying that you said that.

MR. CHERTOFF: I don't want to suggest that every page has to be disclosed. I just want to establish, was it clear at the end of the argument with the three Judges from the Appellate Division in the State of New Jersey that everybody agreed that if you have facts that are inconsistent with a position previously taken in litigation, there is an -- an ethical obligation in some sense to disclose that fact and to deal with it, correct?

MR. ZOUBEK: Yes, with the limitation I've said that the record was closed at an earlier period of time.

MR. CHERTOFF: Now, am I also correct -- and, of course, that's been the -- the rule with respect to discovery and ethics and certainly for the proceeding decade, right?

MR. ZOUBEK: (No verbal response given)

MR. CHERTOFF: We agree on that?

MR. ZOUBEK: We've had that agreement.

MR. CHERTOFF: All right. And, therefore -- let me ask you this question. Is it an appropriate response when one gets wind of the possibility that there are bad facts out there and you might have to disclose, does one avoid -- can one properly avoid one's ethical obligation of disclosure by simply averting one's eyes and not investigating the facts?

MR. ZOUBEK: That's a very general hypothetical, Mr. Chertoff and I --

MR. CHERTOFF: Well, let me ask you -- basically, would you agree with me that if you have -- if a red flag goes up on some inconsistent facts, you don't -- you can't get out of your ethical obligation to disclose those facts or to reconsider your position simply by saying, I don't want to go there and I don't want to think about it?

MR. ZOUBEK: Again, Mr. Chertoff, I think you've got a very gen -- I don't want to go there, I don't want to think about it. The ethical obligation is your ethical obligation, is your ethical obligation, is you ethical obligation and your obligation to do justice is your obligation to do justice.

MR. CHERTOFF: I guess I'll have to settle for that. You come back after this argument, do you report on it to the Attorney General?

MR. ZOUBEK: Yes.

MR. CHERTOFF: What did you say to him?

MR. ZOUBEK: I told him that I viewed that we had a -- some very strong reactions from the bench with respect to the State's position in Soto.

MR. CHERTOFF: And what did he say?

MR. ZOUBEK: I -- this was part of a -- an evolving discussion I had with him relative to my recommendation that it was appropriate for us to think about withdrawing the Soto appeal at that time.

MR. CHERTOFF: To be a little more plain spoken, did you basically tell him that the Judges in the Appellate Division had raised a fuss about the fact that they were concerned about whether this investigation and facts were going to emerge that were inconsistent with the position of the State in Soto and that there would have to be some consideration given to disclosing that?

MR. ZOUBEK: I -- that was one of the things that -- would review with him.

MR. CHERTOFF: And -- so, it became clear at that meeting, if not earlier, that the issue of whether facts inconsistent with the Soto position were in the possession of the State, could very well become a subject of -- of concern to the Judges in the Appellate Division dealing with this case, right?

MR. ZOUBEK: Yes.

MR. CHERTOFF: And, therefore, if one disclosed the fact to the Judges that there were -- that the facts were inconsistent with Soto, there might be some follow-up concerning when that was known and when the State decided to -- to look into this. Was that discussed?

MR. ZOUBEK: No because it -- because, again, when I was discussing with the Attorney General some of my perspectives with respect to the import of statistics and, as I've said, I didn't feel that I was wedded to prior litigation positions were different than what had been taken before. So we didn't have that particular discussion you're talking about.

MR. CHERTOFF: All right. Now -- so, what does he say to you after you lay this out for him in terms of where the Appellate Division was concerned about?

MR. ZOUBEK: I told him that it was my strong recommendation not only based upon my information that I had received with respect to racial profiling generally, but also my view of the record in the Soto case that was now -- here we were, it was 1999, that was a record from '88 to '91, that was based on stops that were done even before Dintino sent out his SOP in 1990 that it was in the State's best interest to not have the law on racial profiling be set on a record from '88 to '91 and it was my strong recommendation that we consider withdrawing the case.

MR. CHERTOFF: Now, to put it in context, on this day, March 16th, two events have happened which dovetail. First of all, you discover that there are documents in existence going back as -- as early as 1996 that clearly show from a statistical standpoint that there are consent to search problems as well as stop problems in the very locations that were the subject of the Soto case. Is that correct?

MR. ZOUBEK: Yes with the caveat that I was particularly focused on some of the -- some of the consent analysis that I was --

MR. CHERTOFF: Okay. And in the very same day, you hear from the Appellate Division that they're troubled and they're reminding the State of its ethical obligation to disclose facts that are inconsistent with the Soto position, correct? That's the same day?

MR. ZOUBEK: Yes, but with -- with one -- one correction, if I can. I -- I -- Judge Stern said to me, the reason you're filing part of this motion, Mr. Zoubek, is because you want to have an evaluation because of your ethical obligations and I said, yes. I don't think it's fair to assert that I was being reminded of my --

MR. CHERTOFF: Right.

MR. ZOUBEK: -- ethical obligations.

MR. CHERTOFF: They -- they acknowledge what you had acknowledged up front which is there's an ethical obligation. You -- certainly, the Court was now aware that this issue of -- perhaps the need to change position was on the table, right?

MR. ZOUBEK: Correct.

MR. CHERTOFF: So, both of these events come together. You go up to the Attorney General and in the course of this single day you've told him, here's -- here are documents that you, Paul Zoubek, had never seen before that seem pertinent and, by the way, the Appellate Division is now aware of the fact that because of information like this, we might have to change our position in Soto, correct?

MR. ZOUBEK: I -- there wasn't the connection in terms of because of documents like this we might have to change our position in Soto.

MR. CHERTOFF: Both the Appellate Division issue and the issue of these newly discovered documents, as far as your concerned, were on the table, same time -- same time, same place?

MR. ZOUBEK: And they had an impact on the position with respect to Soto.

MR. CHERTOFF: And, therefore, you recommended that Soto be withdrawn or that it be considered?

MR. ZOUBEK: I had already begun a process of making that recommendation prior to that.

MR. CHERTOFF: And at that point, for the first, the Attorney General indicated an interest in doing that, correct?

MR. ZOUBEK: Well, I -- I -- he had -- I had prior discussions with him in late February, early March and the motion that I filed on March 5th for the continuance was, I think, the beginning of that process of opening up the -- the notion of potentially withdrawing it.

MR. CHERTOFF: And what was his response on -- on March 16th when you made the suggestion? Was he in favor of dropping it or -- or withdrawing it?

MR. ZOUBEK: A -- a final decision had not been made but the determination was that the racial port -- racial profiling portion of the State Police Review work would be completed prior to the scheduled oral argument which was April 28th and the brief of the State was due on April 21st.

MR. CHERTOFF: Now, at -- at or about the very same day then you -- you and -- and Mr. -- then revisited the question of the blue binder because you prepared memos to file concerning that binder, correct?

MR. ZOUBEK: I don't know at what point in time the -- the memos were done that day, but they were done on the 16th.

MR. CHERTOFF: Let me put Z-16 up on the -- it's a memo to file from Peter Verniero dated March 16th, 1999. Now, did you -- you recognize this memo to file?

MR. ZOUBEK: I do.

MR. CHERTOFF: Did you actually help draft it?

MR. ZOUBEK: No, I reviewed a draft of it.

MR. CHERTOFF: The Attorney General drafted it initially?

MR. ZOUBEK: I don't recall whether the Attorney General or the First Assistant Hespe drafted it. I don't believe I -- I don't -- I don't think I did.

MR. CHERTOFF: Did you -- did you discuss this with --

MR. ZOUBEK: Yeah.

MR. CHERTOFF: -- the Attorney General?

MR. ZOUBEK: Yes.

MR. CHERTOFF: And -- so, this was a -- the second occasion you had a conversation with the Attorney General concerning the so-called blue binder, correct?

MR. ZOUBEK: I don't know if it was in the same conversation, Mr. Chertoff, or a second conversation. Because it all -- it was the same --

MR. CHERTOFF: No, that's right. And -- this would have been after you got back from the Appellate Division?

MR. ZOUBEK: Not necessarily. It could have been -- I -- I think I may have had this discussion before I went to the Appellate Division. I don't specifically recall, but I'm not -- I don't recall whether it was one meeting or two meetings. So, I'm --

MR. CHERTOFF: At some point in the course of these meetings, what does the Attorney General say to you, if anything, concerning his awareness of the existence of documents that refer to consent to search data?

MR. ZOUBEK: I think the focus was on the documents that I had shown him and I made a representation to him that based upon my quick review that I had done within 24 hours, that the Division of Criminal Justice and the Office of the Attorney General had not seen those documents before.

MR. CHERTOFF: Now, this language here, "Today I became aware for the first time of the existence of certain State Police documents containing data and information relating to stops and searches of minority motorists not heretofore produced to us by State Police." Is that the way this draft came to you?

MR. ZOUBEK: This is the final draft. I don't recall any -- the prior versions.

MR. CHERTOFF: It says, "Director Paul Zoubek made me aware of the documents." Correct?

MR. ZOUBEK: Correct.

MR. CHERTOFF: Was it your impression from your discussion with Mr. Verniero whether it was in one occasion or two occasions leading up to this memorandum. Was it your impression that -- that up to this point, Mr. Verniero was unaware of the content of the documents you had specifically drawn to his attention?

MR. ZOUBEK: I asked him the specific question, "Have you seen these documents before?" "Were you aware of these documents?" That was -- and -- and that was -- he responded to that.

MR. CHERTOFF: You -- you asked him whether he was aware of the documents?

MR. ZOUBEK: I believe that's what I asked him.

MR. CHERTOFF: Okay. Now, did he indicate to you, at any point prior to preparation or signing this memo, that whether or not he was aware of the documents, he was aware of the content of at least one of the documents, namely the comparison between Maryland statistics and New Jersey statistics?

MR. ZOUBEK: No.

MR. CHERTOFF: Having made you aware of that fact, would you have written -- would have signed off on a memo written this way?

MR. ZOUBEK: (No verbal response given)

MR. CHERTOFF: I guess what I'm getting at is this, that -- this --

MR. ZOUBEK: I think it -- I think in a fairness to the circumstances, I did come up and make a representation that it was my understanding at the time, some of which we can discuss later, a change that the Division of Criminal Justice or the Office of the Attorney General did not have some of the documents that I was showing the Attorney General.

MR. CHERTOFF: Whose idea was it to write a memo to the file like this?

MR. ZOUBEK: I -- it was a discussion, all three of us were in the room, at some place -- at some point in time there was a discussion of -- of the -- the general putting this -- this memo in his -- in his file. I don't recall who raised it.

MR. CHERTOFF: What was the reason to do it?

MR. ZOUBEK: I -- well, I -- frankly, I mean, I -- I was involved for a 24 hour period of checking with the number of people as to these documents and I was -- it was my view that they were very significant documents and the Attorney General made a determination to reflect that -- that he was being made aware of these by me for the first time.

MR. CHERTOFF: But why? What was your -- whoever came up with the idea? What was the articulated reason to write a memo to the file saying, I've never seen these documents before?

MR. ZOUBEK: Well, I think I had said that this has a -- this has a substantial impact on matters with respect to moving forward with the Justice Department, Soto, racial profiling generally, and I viewed the issue of these documents and that perhaps someday somebody might ask me a question about what happened at -- at that -- that meeting and there was a memo to a file that was done.

MR. CHERTOFF: Well, you know you hadn't seen the documents before because, you know, you hadn't seen them, right?

MR. ZOUBEK: Yes. In cross-checking, there are about -- there are some documents that I may have seen and may have not, but at that time, I did not know what I did.

MR. CHERTOFF: But when you're talking about impact it may have in the future, you mentioned it could have impact in connection with the Department of Justice inquiry. That's because there could be an issue raised about whether production of documents was forthcoming. That was one concern, right?

MR. ZOUBEK: Yes, because these were presented to me as additional documents.

MR. CHERTOFF: There were concerns also with respect to Soto because perhaps the Appellate Division could become -- could raise questions about when this information was in the possession of the State and why it wasn't brought forth earlier than 1999. That was another concern, right?

MR. ZOUBEK: Yes.

MR. CHERTOFF: And you said there was a third concern beyond that. Just generally, was there a political concern that somehow it could be embarrassing that this thing was held for a long period of time?

MR. ZOUBEK: That was not what I was focused on at that time.

MR. CHERTOFF: What was the third concern?

MR. ZOUBEK: That was not the discussion. I don't know. Did I say that it was three reasons?

MR. CHERTOFF: You said there was -- Department of Justice, you said there was a concern about Soto and something about racial profiling generally.

MR. ZOUBEK: Well, I -- I thought that the documents on that -- if -- on the State Police Review Team and the conclusions that the State Police Review Team was going to make in -- in its report.

MR. CHERTOFF: Did you leave -- I withdraw the question. Was it your impression as of the time this document was signed, this memo of March 16th, was it your impression that the content of the material that you had shown Mr. Verniero in that blue binder that that contact was unfamiliar to him?

MR. ZOUBEK: I don't believe I -- I reached that conclusion at that time.

MR. CHERTOFF: Well, did you think he -- did you think he was aware of the content, that he was merely saying he hadn't seen the paper or did you think he was telling you basically, I'm -- I'm not aware of any of this information?

MR. ZOUBEK: That's speculating as to what is in the General's mind at the time. I asked him questions. I -- I've identified what was discussed at the time.

MR. CHERTOFF: No, what did you think? When you got this memo and you saw -- and it was signed off on, what did you think that meant -- was the Attorney General's state of awareness about the content of these documents?

MR. ZOUBEK: I thought it was the first time it was being presented to him.

MR. CHERTOFF: The information?

MR. ZOUBEK: Yes.

MR. CHERTOFF: Now, then the next day, you get the mandate to accelerate the -- the profiling portion of this investigation and finish it in two months, right?

MR. ZOUBEK: No. I actually think that the Appellate Division had faxed in an order to us at the end of the day on the 16th because I think there were press accounts on the 17th reflecting that the -- what the Court had said and in response, the General announced that he had asked for the review to be expedited.

MR. CHERTOFF: So, one reason for that to be expedited was the Court's decision about not granting more of a continuance, correct?

MR. ZOUBEK: That was a reason -- that was the reason that -- that I was focused on and that was a reason that I had understood.

MR. CHERTOFF: Now, were you also aware that there was an increased likelihood -- I think by this point -- that the Department of Justice would accelerate its investigation and might present the State with a proposed consent degree, some time in April?

MR. ZOUBEK: I was aware that there was going to be an increased focus of the Justice Department. There were a couple of reasons for that; 1) my discussions, I had not gone down and met with them. I met with them on March 19th, but I believe it was on March 8th or 9th that representatives from New Jersey stood on the front of the Justice Department steps with -- with Eric Holder and the Justice Department announced that they were going to be expediting what they were doing.

MR. CHERTOFF: All right. So, you knew as of -- somewhat -- a couple of days before this -- this portion -- this part of the -- of the review is accelerated that the -- that there was a threat of a consent degree coming out soon from the Department of Justice?

MR. ZOUBEK: No. I knew that there was a threat of a lawsuit.

MR. CHERTOFF: And -- even a threat of a lawsuit?

MR. ZOUBEK: Yes.

MR. CHERTOFF: So, in addition to the Soto Judges, essentially, shortening your time to make -- fish or cut bait, you also had this pressure from an imminent lawsuit, Department of Justice, correct?

MR. ZOUBEK: Correct.

MR. CHERTOFF: And that's what led, in your mind, to the acceleration of the profiling portion of this?

MR. ZOUBEK: Principally, the -- the failure to get the continuance to June on the Soto case.

MR. CHERTOFF: Now, how did you actually go to -- set about going to work with respect to the putting together this interim report? How did you parcel it out?

MR. ZOUBEK: I -- I think what I had done in late February, keeping in mind the interim report was part of a larger project, I had set up teams with respect to promotions, hiring, Internal Affairs, and I had put myself at the head of the racial profiling review and I set up teams to look at -- look at data, to do some of the analysis. I also had made the conclusion that no matter what determinations were made as to the existence of racial profiling or not, that we have to put in some very comprehensive steps in New Jersey to deal with the issue, and so, I had asked some people to focus on that.

MR. CHERTOFF: Now, I'm going to show you Z-19, which is a series of drafts of the interim report or portions of drafts of the interim report and see if you recognize these drafts.

MR. ZOUBEK: Yes. I believe that what you have here, the Z-19, on the front two pages is the very first draft of the -- the interim report. Mr. Susswein was a principal scrivener. That was his first draft.

MR. CHERTOFF: Okay. Then there's a draft of April 9th, correct?

MR. ZOUBEK: Are they sequentially here, Mr. Chertoff or --

MR. CHERTOFF: Yeah, I think they're sequential.

MR. ZOUBEK: Yes and I think that -- I think it actually reflects the draft as of April 9th. There are -- there were other drafts in between that and I think I have some comments on the April 9th draft.

MR. CHERTOFF: Well, let --

MR. ZOUBEK: But I think it's important if -- if I will, that there -- there are matters that were on the April 7th draft which I know you've questioned other witnesses on, that never saw the light of day past the April 7th draft.

MR. CHERTOFF: All right. And let's get to that. On Page 2 of the April 7th draft, there's a paragraph that says, "We feel constrained -- it's OAG 2625 -- 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 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." Who wrote that?

MR. ZOUBEK: Ron Susswein wrote that based upon a preliminary draft of the document that he received from Debra Stone.

MR. CHERTOFF: And what was Debra Stone's basis for making that --

MR. ZOUBEK: It was --

MR. CHERTOFF: -- statement?

MR. ZOUBEK: -- it was based upon our initial -- as I said, initial reaction to the blue binder and what was in the blue binder and discussions with Jack Fahy and the understanding at the time, but I -- I must emphasize that I think in -- in fairness, I think it's inappropriate -- that -- that draft was only seen by two people before it came to me and that's the only draft of the interim report in which that language appears in.

MR. CHERTOFF: So, now this comes to you and what do you -- what's your reaction when you read that?

MR. ZOUBEK: My reaction -- my reaction to that was that I thought it was -- I thought it was too -- I didn't think it was appropriate to be in the -- in the draft. I knew it was going to be ultimately taken to look at issues as to what -- what may have come over, what may have not. I didn't think that that was -- that was appropriate in the draft based upon what I -- I believed at the time.

MR. CHERTOFF: Well, as of April 7th or in the period between March 16th when the memo prepared by Mr. Verniero was -- was drafted and April 7th, did you have discussions with people concerning what the State Police had turned over to the Office of the Attorney General?

MR. ZOUBEK: I had had some discussion, but I think this was too strong a language because I knew that there were other data that existed out there even before I did this -- this review that I thought that language was too strong. I asked that it be removed.

MR. CHERTOFF: Well, let me ask you this. Before we get to the April 7th draft, had you had your conversation yet with Lieutenant Colonel Dunlop concerning the consent to search data?

MR. ZOUBEK: Yes. I had a conversation, I believe, with both Fedorko and Dunlop where I held up the blue binder and I asked them, have you seen this -- these things before? These documents and I talked about some of the documents there and the answer from both Fedorko and Dunlop was, "No."

MR. CHERTOFF: But did there come a time Colonel Dunlop raised an issue with you concerning whether this memo that we've seen up a couple times -- this undated memo -- that talked about consent to search comparisons whether that had been, in fact, turned over to the Attorney General's Office?

MR. ZOUBEK: I did have a discussion with Lieutenant Colonel Dunlop as a -- in reaction to my reaction to the blue binder.

MR. CHERTOFF: Okay. So, you reacted to the blue binder because you said we haven't seen this stuff before, right?

MR. ZOUBEK: Correct.

MR. CHERTOFF: And you had talked to the Attorney General Verniero and he certainly didn't indicate to you that he'd seen the things before which you -- or that he heard about the things which you identified, correct?

MR. ZOUBEK: I -- you -- you through in the word "heard" and I don't agree with that.

MR. CHERTOFF: All right. Let me rephrase it. When you talked to Attorney General Verniero in or around March 16th, he did not tell you that he had heard of or received the content of that undated memo, which you showed him on that day, correct?

MR. ZOUBEK: I said that -- that subject wasn't discussed. I discussed the documents with him at the time.

MR. CHERTOFF: So, you were under the impression that the content of that document, as well as the document itself, had not been transmitted to the Attorney General's Office, right?

MR. ZOUBEK: Correct.

MR. CHERTOFF: Then you -- and you had a reaction, which you conveyed to Colonel Dunlop, correct?

MR. ZOUBEK: Correct. That was --

MR. CHERTOFF: What --

MR. ZOUBEK: -- part of my emphasis and that we have to have all documents over and this is not the way in which I wanted this to be handled.

MR. CHERTOFF: And then there came a point that Colonel Dunlop came back at you on that issue, correct?

MR. ZOUBEK: Yes.

MR. CHERTOFF: Tell us about that?

MR. ZOUBEK: I received a call at some point in time from Lieutenant Colonel Fedorko. I don't have a calendar. I don't recall exactly when it occurred in which he said he hadn't seen the -- the document but he said, Paul, there was some meeting at some -- I'm being told that there was some meeting at some point in time in which this was all reviewed with the Attorney General.

MR. CHERTOFF: And -- so, what did you do?

MR. ZOUBEK: I -- I went into the Attorney General and said, look, I'm hearing from Dunlop that there was a meeting in which all of this was completely and extensively reviewed in terms of these documents and the information. And he said that the -- that is -- that was not the case.

MR. CHERTOFF: He said there was no meeting?

MR. ZOUBEK: No. What he said was -- he -- he did not recall -- I had put it very strongly in terms of, I'm hearing from the State Police that this, you know, the -- the Gilbert analysis was presented to you and there was a meeting in which all of this was outlined and -- because my conclusion at this point in time that was raising significant flags as to red -- as to racial profiling and he said that that -- that that didn't -- that didn't occur in that context.

MR. CHERTOFF: When you spoke to Colonel Dunlop he basically told you the Attorney General was aware of the content of the documents, right?

MR. ZOUBEK: In the context of a -- of a meeting, he said that all of that was discussed in a presentation with the Attorney General.

MR. CHERTOFF: And when you went back to the --

MR. ZOUBEK: We didn't -- he and I did not have a contents versus documents discussion.

MR. CHERTOFF: All right. And when you went back to the Attorney General, he said that there was no meeting where these concepts were discussed, right?

MR. ZOUBEK: No, what he --

MR. CHERTOFF: That he remembered.

MR. ZOUBEK: -- what he said to me was there was no documents in which this was -- all of this was presented to me as -- as you're telling me.

MR. CHERTOFF: Well, I want to be careful -- was this a conversation in which he's carefully said to you, there were no documents presented to me at a meeting which disclosed everything that you're telling me or did he tell you there was no meeting in which this information was conveyed to me, as far as you recall?

MR. ZOUBEK: I had a conversation with him in which I said that there was a presentation -- I was told there was a meeting in which there was a presentation of State Police of all of these -- these documents and the statistics. I have attended meetings like that with the State Police in the past where it is the dog and pony show with respect to a presentation and I think that was the context I put it in with the Attorney General and he told me, "No, I don't recall that happening."

MR. CHERTOFF: Did you, at that point know the meeting had occurred on May 20th?

MR. ZOUBEK: I had no idea that the meeting had occurred --

MR. CHERTOFF: So, he said that --

MR. ZOUBEK: -- on May 20th.

MR. CHERTOFF: -- so, he said whatever you told him he said that didn't happen?

MR. ZOUBEK: Correct.

MR. CHERTOFF: Now -- then what do you do?

MR. ZOUBEK: I went back and I called back Dunlop, I think, and I told him -- I said, "Look, I talked to the Attorney General. He doesn't recall a presentation of -- of these statistics.

MR. CHERTOFF: And what did Dunlop say?

MR. ZOUBEK: He said, well, no, that's what, you know, I -- I think he responded something like, well, that -- that's what Gilbert or my people remember. Something like that.

MR. CHERTOFF: Now, at -- in the course of this conversation with Colonel Dunlop, had he raised a concern that the Attorney General's Office was going to try to, in some way, fix the blame for this problem with the documents on Colonel Williams?

MR. ZOUBEK: There was a discussion with Lieutenant Colonel Dunlop that I had at some point in time. I don't think it was that same conversation.

MR. CHERTOFF: Well, tell us about that conversation?

MR. ZOUBEK: Well, I believe that at some point in time -- and I don't recall and I don't -- and I think Dunlop didn't necessarily recall whether it was before or after the testimony on April 26th in which some rumors started to circulate that -- that there was an obstruction of justice investigation on -- on Carl Williams and I think I had a discussion with -- with Dunlop. I don't recall if it was before the 26th or after the 26th and I told him that the -- there wasn't a -- an obstruction of justice investigation. I had used the word obstruction of justice with Lieutenant Colonel Fedorko on a perspective basis in terms of getting out documents from the State Police so that we'd make sure our productions were complete.

MR. CHERTOFF: Now, when you -- let's go back to this April 7th draft. This -- that was the initial draft by Ms. Stone and Mr. Susswein?

MR. ZOUBEK: It was -- Debra Stone had done a short 10 to 15 page memo. I think it's in the documents called a, "partial summary on racial profiling" and then Mr. Susswein began the -- the drafting of the -- of the report. It was taken from some general comments of Debra Stone. She had some significant concerns as to Appellate Bureau folks not having been apprised of all of this before.

MR. CHERTOFF: And did you present this draft? Did Mr. -- did the Attorney General see this draft?

MR. ZOUBEK: Not at all. I did not present a draft of the report to -- until perhaps at -- a week or so later. This was a -- as I said, Mr. Susswein's first draft to me and, indeed, although it doesn't reflect here, but this April 7th draft didn't even have a table of contents that -- that came to me and mine came with a table of contents.

MR. CHERTOFF: At a point in time, did you present the Attorney General with an initial draft by Ms. Stone which said the Attorney General's Office didn't get this information until 1999?

MR. ZOUBEK: No. And I -- if I -- if I can, what was happening was, different members of the team were responsible for different sections. I had a -- I had a group that was doing it on the impact of person's of color and -- and other portions of it and it would be added into the report. So, Ms. Stone's draft is something that went to Ron Susswein, but didn't become a separate document.

MR. CHERTOFF: Well, you were asked the following question, Page 207 of your deposition, Line 8. In connection with that, the initial draft by Ms. Stone -- I'll back it up. One of the issues in the draft says --

"When did the Attorney General's Office know about statistical issues related to profiling, correct?

Answer: Uh-huh.

Is that a yes?

Yes, I am sorry.

And in connection with that, the initial draft by Ms. Stone who had no first hand knowledge of this, says the Attorney General's Office didn't get this information until 1999, correct?

THE WITNESS: Correct.

We now know that to be a mistake, correct?

THE WITNESS: Correct.

When that draft was presented to Attorney General Verniero, he did not correct or make a comment about that, right?

Answer: He did not."

MR. ZOUBEK: Yeah. I wasn't talking about the April 7th -- the April 7th draft. I was talking about the draft that I presented to the Attorney General which included -- there were later -- there were about 200 drafts of this as you -- as you know and there was a later draft that included some language on Page 23 and 24 that still gave the impression that none of the documents had been received before and that was the draft which is, I think, sometime between April 13th and April 16th that would have been presented to the Attorney General.

MR. CHERTOFF: Okay. Now, as of the time you presented that draft to the Attorney General, you still believed that the information -- well, let me step back. It's clear from the interim report, that you viewed the consent to search information as very significant, correct?

MR. ZOUBEK: Correct.

MR. CHERTOFF: And, in fact, is it fair to say that all the types of statistical information, the type that you placed the most emphasis on was consent to search, correct?

MR. ZOUBEK: Yes, given the approach we had taken in the interim report.

MR. CHERTOFF: And as of the time the April 13th draft was completed, it was still indicated in the -- in the draft that this information had not been received until very recently by the Attorney General's Office, correct?

MR. ZOUBEK: That's correct.

MR. CHERTOFF: And you presented that to Attorney General Verniero?

MR. ZOUBEK: That's correct.

MR. CHERTOFF: And he did not raise any issue with that or dispute it in any way, correct?

MR. ZOUBEK: That's correct.

MR. CHERTOFF: And as of that point in time, you had what you had heard from Colonel Dunlop and you had had Mr. Verniero's -- stated to you that he did not agree with Colonel Dunlop's characterization of an earlier meeting, right?

MR. ZOUBEK: Correct.

MR. CHERTOFF: Now -- and at this point, you had not yet gone to Mr. Fahy or Mr. Rover to further inquire of them whether they remembered a meeting where this consent to search data was talked about?

MR. ZOUBEK: I don't believe I have, but I don't the specific times when I had those discussions with Fahy and Rover. I do believe that they had a discussion with me that there was some discussion of numbers and I don't -- that's my general recollection.

MR. CHERTOFF: Now, when the Attorney General gets this draft of April 13th and looks at this draft and, as said, makes no comment with respect to the claim that the State Police didn't turn over the material, did you and the Attorney General then go and discuss the draft with anybody else?

MR. ZOUBEK: I'm sorry?

MR. CHERTOFF: Yeah. After you had taken the April 13th draft to the Attorney General and discussed and shown it to him, including Page 23, which indicated that the State Police had withheld information from the Attorney General's Office, again, he didn't dispute that or raise any concern about that language, right?

MR. ZOUBEK: Correct.

MR. CHERTOFF: Did you then take that draft and discuss it with anybody else?

MR. ZOUBEK: No.

MR. CHERTOFF: Did you discuss that language on Page 23, either in the April 13th draft or in any subsequent or earlier draft with anybody outside of the Department of Law and Public Safety?

MR. ZOUBEK: No. I did take additional steps, as I testified to in my deposition, to go back and cross-check documents that resulted in a change on Page 23.

MR. CHERTOFF: At any time, though, before the report was issued, and before the final changes were made on Page 23, did you -- are you aware whether the draft was shown to anybody outside the Department of Law and Public Safety?

MR. ZOUBEK: I'm sorry. Could you repeat that question?

MR. CHERTOFF: At any time prior to the issuance of the report, was a draft of the report shown to anybody outside the Department of Law and Public Safety?

MR. ZOUBEK: Yes.

MR. CHERTOFF: When did that happen?

MR. ZOUBEK: I believe on Friday the -- is that the 17th was a Friday or 16th was a Friday? Whatever the Friday was of that -- which -- what I think was the 16th, I believe a draft of the report was forwarded over to the Governor's Office.

MR. CHERTOFF: Okay. And then was there any subsequent discussion of that?

MR. ZOUBEK: Of the draft?

MR. CHERTOFF: Yes.

MR. ZOUBEK: Yes.

MR. CHERTOFF: When did that take place?

MR. ZOUBEK: It took place on Saturday, the 17th.

MR. CHERTOFF: And who was present for the discussion?

MR. ZOUBEK: I was there, the Governor was there, Secretary of State Suarez was there, Attorney General Farmer was there, Chief of Staff Torpey was there, Director of Communications McDonough was there and General Verniero .

MR. CHERTOFF: Now, when you said Attorney General Farmer, he wasn't Attorney General yet?

MR. ZOUBEK: He's certainly my Attorney General now, but he was Attorney General then.

MR. CHERTOFF: Right. And in this meeting, was there --

MR. ZOUBEK: Chief -- he was Chief Counsel at the time.

MR. CHERTOFF: In this meeting, was there a discussion about this draft of the report?

MR. ZOUBEK: I -- yes, there was.

MR. CHERTOFF: And was there a discussion, for example, about the consent to search data and the significance of that in the report?

MR. ZOUBEK: I -- if I can, Mr. Chertoff. What I did was I essentially went through the entire report and presented the report much in the same way I did on April 26th to this Committee.

MR. CHERTOFF: Did the people at the meeting react to any portions of the report?

MR. ZOUBEK: Yes.

MR. CHERTOFF: Tell us about their reaction?

MR. ZOUBEK: I think the Governor was -- expressed concern about what was reported in the -- in the report with respect to the findings of relating racial profiling and what I explained to her is I explained to this -- this Committee was that I thought one of the new directions that we're taking on this or new focus that was on -- did not necessary focus on just the stop issue but also to be focusing on discretion at issue with respect to consents.

MR. CHERTOFF: What other reaction was there to other parts of the report?

MR. ZOUBEK: I -- I think there was -- primarily -- there was the -- the Governor was asking a number of -- a number of questions. She asked some questions about some of the -- some of the law and -- and also she was very concerned about the -- the findings of the report.

MR. CHERTOFF: Was there any reaction to Page 23 of the report, which indicates that the State Police withheld certain information from the Attorney General's Office?

MR. ZOUBEK: There was discussion of that -- that portion and concern with respect to the -- the fact that some documents had not been forwarded.

MR. CHERTOFF: What was the discussion about that portion?

MR. ZOUBEK: Well, I think in particular, there was discussion with respect to that monthly compilations of data that had come over to the Superintendents Office, but had not come over to the -- the Office of the Attorney General and I think the record from this Committee and the record -- the 90,000 pages still shows that those -- those monthly compilations had not come over at any point in time. They were not part of the documents I received from -- from Rover on -- on February 26th.

MR. CHERTOFF: Well, whether the documents or the information came over, I guess the record speaks for itself, but let me ask you this. What, if anything, did the Attorney General say concerning -- let me step back for a second. Am I mistaken in viewing the issue of whether the State Police withheld documents or information from the Attorney General to be a very significant issue?

MR. ZOUBEK: Yes.

MR. CHERTOFF: I mean, the Attorney General has the responsibility to supervise the State Police, right?

MR. ZOUBEK: Correct.

MR. CHERTOFF: If the State Police were to lie to the Attorney General or withhold material information, it would strike at the heart of civilian control over the police, right?

MR. ZOUBEK: Correct.

MR. CHERTOFF: It would be something that would -- would require, in fact, demand some kind of serious investigation and perhaps serious sanctions, correct?

MR. ZOUBEK: Depending upon the circumstances.

MR. CHERTOFF: Is it fair to say that the people in the meeting who were not from the Department of Law and Public Safety quite understandably had a strong reaction to the suggestion that the State Police might have been withholding information from the Attorney General?

MR. ZOUBEK: It was certainly a concern that was discussed.

MR. CHERTOFF: And what did the Attorney General say in response to that?

MR. ZOUBEK: I think he said that there were documents that he had not seen before, that reflected in the report, that had been asked for from Colonel Williams that had not been received.

MR. CHERTOFF: And did you understand that to be referred to, at the very least, to documents you had drawn his attention to when you met with him on March 16th?

MR. ZOUBEK: His description was of the data that was collected by the State Police and had not -- not been provided.

MR. CHERTOFF: That was consent to search data, right?

MR. ZOUBEK: I -- ask me that question again, Mr. Chertoff?

MR. CHERTOFF: That was consent to search data that you specifically --

MR. ZOUBEK: He did --

MR. CHERTOFF: -- referred to --

MR. ZOUBEK: No. He -- he talked about there were documents that the State Police had that had been requested before that had not come over. That's what he had said.

MR. CHERTOFF: Now, did he say that in a matter of fact way or did he say it in a way of suggestion that there had been some serious misbehavior or misconduct in not turning over relevant information?

MR. ZOUBEK: In the context of his statement that there had been a request for those -- those documents and they had not come over he -- he expressed concern.

MR. CHERTOFF: Now, as of the time of this meeting, had you done any further exploration on your own to see whether, in fact, there had been a May 20th meeting where the consent to search information had been talked about?

MR. ZOUBEK: I believe I had had -- by the time of that meeting some other discussion with the Attorney General. I can't remember if it was Fahy or Rover who had said something about that there was a meeting. I went back and talked to the Attorney General about it and his response to me was there was a meeting but there was -- there was never any discussion that what he was hearing meant that there was racial profiling.

MR. CHERTOFF: All right. Let me step back for a second. I want to go back to this meeting on the -- on the 17th of April or the 18th of April with the Governor. Did the Governor express a strong reaction to the consent to search data?

MR. ZOUBEK: That was part of what she responded to when I made the presentation, yes.

MR. CHERTOFF: I mean, she made it clear she understood that was very significant stuff, right?

MR. ZOUBEK: Yes.

MR. CHERTOFF: And in the context of the discussion about what had been withheld by the State Police, was it clear that part of what was being claimed to have been withheld was consent to search data?

MR. ZOUBEK: That would have been within it.

MR. CHERTOFF: Because that was -- the report makes it clear that the consent to search data is the single most compelling type of statistical proof in this area, right?

MR. ZOUBEK: No, I wouldn't agree with that. I don't -- I -- it is -- it's important but there are a number of other items listed in the interim report that are -- that are relevant to that. It's not the single most important item. It is -- it is an item that we believe, as it relates to the issue of discretion, it more than any other statistics is telling, but in and of itself doesn't necessarily answer the entire question.

MR. CHERTOFF: I didn't mean to say it's conclusive proof. Would you agree with me that with respect to the statistical evidence in the report, which is all you had, it was the most compelling piece of statistical evidence?

MR. ZOUBEK: I don't agree with your characterization that that's all we have. We have a reference in there that we relied on complaints, that we relied on interviews of troopers, that we relied on information that had come in in lawsuits, that we relied on investigations, that we relied on audits. So, if I can just clarify that for the record.

MR. CHERTOFF: Did you say in your report information concerning consent searches is particularly instructive?

MR. ZOUBEK: That's -- I think that's consistent with what I just said. It's particularly instructive.

MR. CHERTOFF: And, in fact, there was a separate section dealing specifically with that because of its significance, right?

MR. ZOUBEK: I don't disagree with you, Mr. Chertoff. I just thought your prior characterization made it appear that it was conclusive.

MR. CHERTOFF: In -- in the discussion with the Governor and the others, did the Attorney General ever indicate that he had been made -- the State Police had made -- made him aware that they had compilations or comparisons of consent to search data as far back as 1997?

MR. ZOUBEK: Not in that meeting.

MR. CHERTOFF: Now, I want to step back because as we had -- the state of play as I understood it between March 16th and April 17th, this one month period is, on March 16th you show the blue notebook to Mr. Verniero, including the undated Gilbert memo, correct?

MR. ZOUBEK: Correct.

MR. CHERTOFF: He indicates to you in one or two meetings that he has never seen the document before?

MR. ZOUBEK: Correct.

MR. CHERTOFF: He does not indicate to you whether or not he's familiar with the information, right?

MR. ZOUBEK: Not until we had a subsequent discussion about the meeting issue.

MR. CHERTOFF: Okay. At that meeting, he doesn't indicate anything about being familiar with the information, correct? On March 16th.

MR. ZOUBEK: I didn't ask him that question.

MR. CHERTOFF: Okay. And he doesn't volunteer it, right?

MR. ZOUBEK: Right.

MR. CHERTOFF: Then you have a conversation with Dunlop where Dunlop says, hey, you know, there was a meeting where this stuff was discussed, correct?

MR. ZOUBEK: Correct.

MR. CHERTOFF: You go to the Attorney General and he says, I don't remember any meeting like that, right?

MR. ZOUBEK: Given the description I -- I gave about what I said to him before, I stand on the record of that, yes.

MR. CHERTOFF: And you go back to Colonel Dunlop and you say, the Attorney General doesn't remember that, right?

MR. ZOUBEK: Consistent with my prior statements, yes.

MR. CHERTOFF: Then there comes a point in time you decide you think you need to look into this a little bit further, right?

MR. ZOUBEK: Correct.

MR. CHERTOFF: What made you decide to do that?

MR. ZOUBEK: It was my review of the report and the issue of the significance of what you had talked about before as to whether documents were being produced or not by the State Police and going back and double checking that issue before the report was issued.

MR. CHERTOFF: You got nervous about the statement in Page 23 about things being withheld, right?

MR. ZOUBEK: I was nervous about a lot of that report, Mr. Chertoff. It was a significant report and I was trying to make sure that it was as accurate as I could make at that time.

MR. CHERTOFF: And you understood that an allegation that the State Police withheld information from the Attorney General would be a very significant allegation, right?

MR. ZOUBEK: Yes.

MR. CHERTOFF: So, you went back and you talked to Rover and Fahy to see if they were aware that the information about consent to search figures, at least generally speaking, had been made available to the Office of the Attorney General, correct?

MR. ZOUBEK: I did not have that discussion with Fahy and Rover -- I went back -- at what time did I go back, Mr. Chertoff?

MR. CHERTOFF: Well, I'm asking you. Did there come a time that you went to Fahy and Rover and asked them whether there had been any conversation about the consent to search figures back in '97?

MR. ZOUBEK: I had some discussions with them. Some of them may have been prior to the issuance of the report. Some of them may have been after the issuance of the report.

MR. CHERTOFF: Okay. Tell us about the conversations prior to the issuance of the report?

MR. ZOUBEK: Well, I think there was some discussion at some point in time. I can't remember whether it was Mr. Fahy or Mr. Rover who said -- in a discussion I had, there some discussion of a meeting. Do you recall a meeting? And the say, yes, I recall a meet -- they recalled the meeting that had occurred. They didn't tell me what date it was in which there was some discussion relative to the Justice Department investigation.

MR. CHERTOFF: And when you got that information from them, did you go back to Mr. Verniero?

MR. ZOUBEK: I believe I did.

MR. CHERTOFF: What did he say?

MR. ZOUBEK: And again, I can't recall if he said this to me before the issuance of the report or after the issuance of the report, was that if there was a meeting like that, it was never in the context that -- the -- that the numbers meant that racial profiling was occurring.

MR. CHERTOFF: Well, what was in the -- what did he say it was in the context of?

MR. ZOUBEK: It was in context of the review of the -- for the Justice Department and the statement that -- that the -- that the State Police made to him that there was no racial profiling occurring at the State Police.

MR. CHERTOFF: Well, let me back up. I want to make sure. What prompted you to -- you go back to Fahy and Rover on one occasions or two occasions to press the issue of this meeting?

MR. ZOUBEK: I -- I didn't say I went back to them to press it. I said, I had conversations with them. What I did do to go back and double check was I went back because my understanding was the filter into the Department was George Rover. So, that if I went back and personally took a look at what was in Rover's files, that would give me an indication of what had come into the Department because if the representation was in the report -- it didn't say to the Attorney General. It said the Office of the Attorney General and the Division of Criminal Justice. I knew that it had not come into the Division of Criminal Justice. I was Director of the Division of Criminal Justice and we were able to confirm that.

As it relates to the Office of the Attorney General, I went back and looked at Rover's files and I saw some of the underlying data that would comprise or was similar to the undated Gilbert memo. I, therefore, went back and changed the final drafts of the report to reflect what I still think is accurate today, which are some of the documents had not been produced by the State Police and what I mean by "some" it's the '97 and '98 compilation out at Moorestown and Cranbury which had not been produced.

MR. CHERTOFF: Now, what -- the conversation about the meeting with Mr. Rover, why did you have that conversation?

MR. ZOUBEK: I think that may have been more closely timed to -- prior to the Attorney General's or my appearance before this Committee.

MR. CHERTOFF: Because at that point -- so, that would have been after the report was issued?

MR. ZOUBEK: That's --

MR. CHERTOFF: Right?

MR. ZOUBEK: -- I mean, it -- with --

MR. CHERTOFF: Within an amount of days?

MR. ZOUBEK: -- this was a very busy period of time and I cannot discern the exact dates of when those conversations occurred.

MR. CHERTOFF: All right. So, as best as you can recall it, you tone down Page 23 because when you look at Mr. Rover's files, you see a lot of -- of the raw material in fact was furnished. Is that correct?

MR. ZOUBEK: I attempted to make Page 23 as accurate as I could.

MR. CHERTOFF: And then you have -- there's this meeting with the Governor and she reacts, among other people, to this issue about the State Police withholding information, right?

MR. ZOUBEK: If -- if I can. I believe that the record reflects that I -- I changed the draft on either the 19th -- 18th or the 19th. That was after the meeting.

MR. CHERTOFF: Okay. Then, in other words, you made a decision -- well, let's step back a little bit. I want to make sure I have it right. So, you go into the meeting on the Saturday. The Governor and others react to the allegation that the State Police had withheld documents, correct?

MR. ZOUBEK: Correct.

MR. CHERTOFF: The Attorney General agrees that the State Police have withheld documents, right?

MR. ZOUBEK: Again, I've answered those questions before and you -- he made statements with respect to what he believed he had not received before.

MR. CHERTOFF: What did he say he believed he hadn't received before?

MR. ZOUBEK: I think as I testified a mere ten minutes ago on -- on that, I -- what I said was that he said that there were documents that were collected by the Superintendent that had not come over to the Attorney General Office.

MR. CHERTOFF: Now, after that meeting --

MR. ZOUBEK: And I believe -- and at that point in time, in part, the Attorney General was relying on the representations that I had in the report.

MR. CHERTOFF: Rather than his own memory or knowledge?

MR. ZOUBEK: You have to ask him that question, but I'm saying, you know, I had made that representation to him.

MR. CHERTOFF: Then you decide you want to go back and further alter the language on that page, right, the next day?

MR. ZOUBEK: Either the -- that Sunday or -- or on -- or Monday. That I -- no, what I wanted to do is I wanted to go back and check. I went and looked at Rover's files. I saw that some of the documents that were in the blue binder had been in Rover's files that -- that were part of the underlying data for the undated Gilbert memo.

MR. CHERTOFF: Would that include, for example, the patrol issues concerns at Moorestown Station which appears both in the blue binder and also in the memo of July of 1997 which you later came to learn went up to the Attorney General?

MR. ZOUBEK: Actually, what I was focused on, I think you actually tried to show me this document before, was a 7/10/97 document, which shows that Gilbert was doing some underlying data analysis for consent searches at Moorestown and Cranbury and Newark and that those had been provided to Mr. Rover and I think if you check the -- the February 22nd, 1999 letter, those were not separately identified by Mr. Rover as not having gone over to the Justice Department.

MR. CHERTOFF: So, this review which you undertook of Mr. Rover's files, which led you to tone down Page 23, this actually occurred after the meeting with the Governor?

MR. ZOUBEK: Correct.

MR. CHERTOFF: Is the reason -- why did you decide to undertake this last minute double check? Was it because of the reaction of the people in the room?

MR. ZOUBEK: In part.

MR. CHERTOFF: Was it because you understood from the reaction of the Governor that as they initially read this allegation, they took it as a very serious problem?

MR. ZOUBEK: Well, I knew it was -- I knew it was a serious problem. I knew it was -- it was an issue that was particularly focused on and I did go back and check after that.

MR. CHERTOFF: And then when you went back and checked, you saw that, in fact, it looked like there was a good deal of documentation that had been furnished to the Office of the Attorney General, correct?

MR. ZOUBEK: For the period of time up until sometime in 1997 and I think I have said and I have said to this Committee that the period of -- that documents which had not come over were in the '97 and '98 period of time.

MR. CHERTOFF: Now -- and therefore, you made some adjustment in the language on Page 23 to -- to reflect what you had discovered in Rover's file, correct?

MR. ZOUBEK: I made some substantial adjustments.

MR. CHERTOFF: Now, up until the time that this report his filed on April 20th, is it fair to say -- is it -- well, actually, before you made the change, you talked to Mr. Verniero about it, right?

MR. ZOUBEK: I was present during the conversations at the Governor's residence.

MR. CHERTOFF: I'm sorry. You misunderstood my question. Again, in sequence, you have the conversation at the Governor's residence about Page 23, right?

MR. ZOUBEK: Correct.

MR. CHERTOFF: About the allegations against the State Police, correct?

MR. ZOUBEK: Correct.

MR. CHERTOFF: You go back the next day or the next -- or two days later, you review the file, you find a lot of documents in Rover's file that are raw data that came from the State Police, right?

MR. ZOUBEK: I find some documents, the documents that I identify.

MR. CHERTOFF: You then go and report that to Mr. Verniero, right?

MR. ZOUBEK: Correct.

MR. CHERTOFF: His reaction is what?

MR. ZOUBEK: His reaction was he wanted to know whether or not there was any reflection that that document had gone to him.

MR. CHERTOFF: In other words, he wanted you to tell him whether there was any indication on the documents or in the files that he had received copies of it?

MR. ZOUBEK: Correct.

MR. CHERTOFF: What did you say?

MR. ZOUBEK: Not based upon the way in which Rover's files were set.

MR. CHERTOFF: What did he say?

MR. ZOUBEK: He -- he didn't have a reaction at that point.

MR. CHERTOFF: Did he explain to you why he was concerned about whether there was any record in the file about whether he had gotten the documents?

MR. ZOUBEK: Well, I thought that -- I -- it didn't strike me as being unusual. I thought that was a natural reaction.

MR. CHERTOFF: And as of this point, you hadn't yet gone to speak to Fahy and Rover about the meeting in May 20th, right?

MR. ZOUBEK: I -- as I said, Mr. Chertoff, I'm not sure as to when those occurred. I did have those discussions with them. It's not necessarily that I sought them out for that specific issue, when I had -- I spoke to them about that.

MR. CHERTOFF: But in this meeting that you have where you talk about the Rover file with the Attorney General, again, he doesn't say, you know, maybe some of this stuff was mentioned to me in a meeting back in 1977? He doesn't raise that issue with you, correct?

MR. ZOUBEK: Correct.

MR. CHERTOFF: Then there comes a point in time where you -- you say in anticipation of the testimony here on April 26th, you decide you better go talk to Fahy and Rover to see about this meeting, right?

MR. ZOUBEK: Now, as a I said, I think I talked to Fahy or Rover beforehand. I think one of them I had a discussion with respect to the -- the May meeting in which they had said to me, that they remembered there was some general discussions with respect to consents and I went back and advised the Attorney General of that and I -- and advised him of that -- that someone else had -- and I had testified this at my deposition that I did receive additional information from others who were at that meeting.

MR. CHERTOFF: So, wait a second. They tell you one or more or both of them tell you at some point close in time to the hearing where your -- you and Mr. Verniero are going to testify, that they recall that there was discussion about consents in a meeting in May, correct?

MR. ZOUBEK: That the subject matter of consents had come up -- there was no -- the record -- now we have the benefit of the May 20th, 1997 -- I didn't know when the meeting was but that there had been a meeting discussing the Justice Department issue, but the response back -- that I got back from the Attorney General, there may have been those discussions, but it never was in the context that that meant that racial profiling was occurring.

MR. CHERTOFF: I'm sorry. I -- I was slightly distracted. You -- I want to make sure I have this piece by piece. You tell the Attorney General about your conversation with Rover and Fahy about this prior meeting, right?

MR. ZOUBEK: Rover and/or Fahy.

MR. CHERTOFF: Right. You tell that to the Attorney General, right?

MR. ZOUBEK: Correct.

MR. CHERTOFF: Now, whereas previously when you told him what Dunlop said he had said there wasn't any meeting like that, now he changes his position, correct?

MR. ZOUBEK: I think he said if there was that meeting it was not in the context of the discussion being that the -- any issue with respect to consents meant that there was racial profiling occurring, that the consents didn't -- didn't conclude the matter.

MR. CHERTOFF: I'm -- he say -- he said there wasn't a meeting but if there was a meeting I remember it wasn't about racial profiling?

MR. ZOUBEK: No. Well, you had gone through the chronology in which there was a discussion with Dunlop and I -- with Dunlop I said to the Attorney General that I was told that there was this presentation and all this was reviewed with you, the statistics were reviewed with you and he said, "No, that didn't happen."

MR. CHERTOFF: Now you come back at him with -- with additional information from other witnesses?

MR. ZOUBEK: I come at with him -- with more general -- additional, but more general information which is I'm hearing that there was a meeting in which there was some discussion of -- of consents and -- and I had already had the Dunlop discussion with him and then he responded to me that any discussion that there may have been of consents was in the context that it didn't meant that there was racial profiling that was occurring.

MR. CHERTOFF: So, in other words, he indicated now he did remember the meeting once you present him --

MR. ZOUBEK: I think he said --

MR. CHERTOFF: -- with this additional --

MR. ZOUBEK: No, I --

MR. CHERTOFF: -- witness --

MR. ZOUBEK: -- I think he said to me, if there -- if there was a meeting, I didn't have the benefit of the -- the agenda to go back and refresh his recollection. That was the context of the discussion I had with him.

MR. CHERTOFF: I -- I'm -- it's a very simple question. You tell him now that there's additional witnesses who say there was a meeting about consents. Did he say he remembered the meeting?

MR. ZOUBEK: Mr. Chertoff, in fairness, I answered the question before. You asked me additional witnesses. I said I went back and said either Rover or Fahy had told me that there was a meeting.

MR. CHERTOFF: And he --

MR. ZOUBEK: And he said that -- and he didn't go into specifically of whether he recalled the meeting. If there was a meeting, if there was a discussion, it was in the context that consents didn't mean that there was racial profiling actually occurring.

MR. CHERTOFF: And who did he say told him that consents don't mean that racial profiling is actually occurring?

MR. ZOUBEK: I didn't follow up with him on that question.

MR. CHERTOFF: Why not?

MR. ZOUBEK: Perhaps I should have.

MR. CHERTOFF: Well, let me ask you this. Was there a point in time that you actually were investigating the question of whether documents had been withheld by the State Police from the Attorney General's Office?

MR. ZOUBEK: I was looking into that issue by looking at the documents, talking to people and part of those discussions were the discussions I had with Dunlop, Rover and Fahy and then I took the additional steps of looking at Rover's documents and those were the steps that I had taken before the time that I had appeared before the Committee on April 26th, 1999.

MR. CHERTOFF: So that by the time you appeared, you had concluded you -- this investigation, this examination of what happened, correct?

MR. ZOUBEK: No, I think it was left that that in -- that and the impression that the Attorney General had with that was an open investigation, I subsequently -- when I became Acting Attorney General, in particular, after I received a call from -- I got beeped at a little league game by Carl Williams who called and told me that someone from The Philadelphia Inquirer was calling him and asking to confirm that he was under investigation for obstruction of justice. I told him that was wrong. I would contact the reporter to make sure that they knew that that was wrong and I told him that we would take care of that.

When I became Acting Attorney General, I made a determination that -- that there was -- there didn't seem to be any further purpose to engage in that kind of investigation and -- and move forward with the reforms of the State Police.

MR. CHERTOFF: Here's my question. Did the Attorney General Verniero, before April 26th, ever direct you to investigate how and why documents were withheld by the State Police?

MR. ZOUBEK: Yes, and I think if you look at Z-16, I think this -- Z-16 which is a memo to -- Verniero's memo to the file dated March 16th, 1999 the -- it says, "The First Assistant, the Director and I discussed the need to determine why this information was produced to us by the State Police only at this time."

MR. CHERTOFF: And when did you determine that? When did you determine the answer to that question?

MR. ZOUBEK: I had reached a preliminary conclusion as to some of the data I had gone over. I did not go back and do any inquiry of Carl Williams, Dunlop, Gilbert --

MR. CHERTOFF: Here's the simple question. When did you reach the conclusion that that memo indicates you were going to reach?

MR. ZOUBEK: I don't think I reached an ultimate conclusion as to who received what and when by the time I became Acting Attorney General.

MR. CHERTOFF: After -- after April 26th, when the testimony concluded here, what single step did you ever take to investigate what happened with those documents?

MR. ZOUBEK: I think after I got the impression that some of the testimony that was given on April 26th led the impression that Carl Williams was under some investigation for obstruction of justice and given what I had viewed to be the confusion as it relates to who received what documents and not, I did not take any further steps. What I tried to do is move towards remedy this situation.

MR. CHERTOFF: Here's the question, what single thing did you or anybody at your direction do to investigate the issue of why or how documents were withheld, after you left this room on April 26th, 1999?

MR. ZOUBEK: I made a determination, as I said, none. Based upon my determination that I didn't think it would be in the public interest to do so at the time.

MR. CHERTOFF: Did you make that determination while you were sitting in the hearing room?

MR. ZOUBEK: No.

MR. CHERTOFF: When you came in the hearing room, when you were asked questions about documents being withheld and then you answered, "There was an investigation." Was there an investigation at that time?

MR. ZOUBEK: The Attorney General answered the question that there -- there was -- by way of -- by way of investigation, I think he had an impression that I might be following up on that issue and when I became Acting Attorney General I made a determination not to do so.

MR. CHERTOFF: Where did he get the impression that you were following up on the issue when he sat here on April 26th, 1999?

MR. ZOUBEK: Oh, I -- I had told him that I had looked at the documents that were in Rover's files and he had given me this assignment and not many others back in -- back in March and I think that was what he was operating from at the time.

MR. CHERTOFF: If before April 26, 1999 there was an investigation about who got what documents, did you ever interview the Attorney General?

MR. ZOUBEK: The Attorney General used the phrase "investigation." In my book, "investigation" means a criminal investigation. There was never a criminal investigation with respect to this and I was looking at that from the context of -- of what had -- what had happened, what had been produced and I made a determination that instead of trying to deal with this constant battle between the Attorney General's Office and the State Police, to try to remedy that in the final report of the State Police Review Team.

MR. CHERTOFF: Here's my question. When you have in the memo that there was a need to determine why information was produced to us, why in -- this information was produced to us by the State Police only at this time, are you telling us that the -- you had not determined the answer to this by --

MR. ZOUBEK: I did not --

MR. CHERTOFF: -- April 26th?

MR. ZOUBEK: -- I did not, by way of example, go and ask Carl Williams who had just left the New Jersey State Police and said, Carl Williams, can I interview you to ask why you didn't forward over the '97 and '98 documents from Moorestown and Cranbury and why John Hagerty represented to all the newspapers on February 8, 1999, I made a determination, particularly after I talked to Carl Williams who thought the press thought he was under investigation for obstruction of justice, that it was not in the public interest of -- to continue that investigation and that was the determination I made and --

MR. CHERTOFF: When did you --

MR. ZOUBEK: -- and I stand by it.

MR. CHERTOFF: -- and when did you make the determination?

MR. ZOUBEK: I think I made the determination at some point in time certainly after I talked to Carl Williams. I had -- I had just gone through a period of time, Mr. Chertoff, of being the -- I was now Acting Attorney General, First Assistant Attorney General, Director of the Division of Criminal Justice and head of the State Police Review Team. I have to set priorities and I made a determination that -- that was not an investigation I thought warranted further work.

MR. CHERTOFF: In anticipation of the hearing, when you took -- let me step back. This got really sharply focused before the April 26th hearing, didn't it? This issue about what was known and what was withheld by the State Police, right?

MR. ZOUBEK: That was certainly part of the report and it was focused -- it had been focused for a number --

MR. CHERTOFF: You prepared for the April 26th hearing with Mr. Verniero, correct?

MR. ZOUBEK: Correct.

MR. CHERTOFF: You focused his attention on the fact that the issue of withheld documents would come up, correct?

MR. ZOUBEK: Correct.

MR. CHERTOFF: Before that hearing, you had already determined that there was some kind of a meeting at which Mr. Verniero had been told about the consent to search numbers, correct?

MR. ZOUBEK: Correct.

MR. CHERTOFF: And after you confronted him with that new information, he allowed -- how -- well, if there was a discussion about it, it was in the context of saying that there was no profiling, correct?

MR. ZOUBEK: Correct.

MR. CHERTOFF: And, in fact, did he tell you that it -- he understood at the time that, although the numbers could be viewed as a problem, the advise he had received was that they weren't ultimately determinative in the Justice Department investigation?

MR. ZOUBEK: Correct.

MR. CHERTOFF: Did he tell you who gave him that advice?

MR. ZOUBEK: He told me that that was -- I -- I knew who had been working with him at that point in time. I had also seen, by that point in time, the April 22nd, 1997 memo that Rover had provided to Waugh that went to the Attorney General that said consents were irrelevant to the analysis. I disagreed with that analysis. I thought they were relevant to the analysis, so it was consistent with what I had seen in that memo.

MR. CHERTOFF: Who did he say gave him the advice that it wasn't determinative?

MR. ZOUBEK: Well, I -- he -- I -- he did not say, but I had already reviewed the memo from April -- from 1997 in which he had received that -- that advice in part.

MR. CHERTOFF: So, he didn't tell you. He just said he got advice. Is that right?

MR. ZOUBEK: Correct.

MR. CHERTOFF: Now, you went to the hearing, right?

MR. ZOUBEK: Correct.

MR. CHERTOFF: Were you present at the following testimony?

MR. ZOUBEK: I was present during all the testimony.

MR. CHERTOFF: On Page 26, Senator Lynch asked the question --

"Let me ask the question again. At the time you filed this brief in Soto in March of 1997, did you consider the need for a survey to determine whether or not there was, in fact, the fact of profiling going on the Turnpike?"

Answer by Attorney General Verniero. "Based on the briefings that I have received and the assurances that I received, no, I did not consider a need to have independent review done at that time.

SENATOR LYNCH: And so, there was no statistical analysis ongoing under your watch until some time after the shooting in April of 1998, correct?

ATTORNEY GENERAL VERNIERO: If there was an analysis going on at that point in time, somewhere in the Department of Law and Public Safety I was not aware of it in July of 1996, no."

MR. CHERTOFF: You were there for that, right?

MR. ZOUBEK: Yes.

MR. CHERTOFF: Now, let me as you this question. If I were to ask you the question, was there no statistical analysis ongoing under Attorney General Verniero's watch until some time after the shootings in April of 1998, the answer to that would be, that's incorrect, right?

MR. ZOUBEK: Based upon my understanding of the record today, there was analysis that had occurred within the Department of Law and Public Safety. At the time that I attended the hearing, I was relying upon my understanding at the time.

MR. CHERTOFF: Now, you also knew as of the time of the hearing --

MR. ZOUBEK: No, I --

MR. CHERTOFF: -- that --

MR. ZOUBEK: -- Mr. Chertoff, I --

MR. CHERTOFF: Let me --

MR. ZOUBEK: -- I don't think that's fair. I just said that I didn't know that at the time of the hearing and you just said "also."

MR. CHERTOFF: All right. Let me -- you -- you did know, however, at the time of the hearing which was on April 20th of 1999 that in -- sometime in 1997 the Attorney General had been made aware that there was at least a statistical analysis of consent to search data that had already been performed somewhere in the boughs of the Department, right?

MR. ZOUBEK: Somewhere with -- somewhere within the Department.

MR. CHERTOFF: So that the correct answer to the question of Senator Lynch is that before April of 1998 there was at least some kind of statistical analysis ongoing because you knew the Attorney General had been notified about that, sometime in 1997, right?

MR. ZOUBEK: Some analysis that had occurred in the Department, but I think it's important the line of questions that were being asked at that time was, why did the Attorney General's Office do something pro-actively.

MR. CHERTOFF: But forget the line for a second. I just want to make sure I understand that -- the -- what the facts are and what the answers are. So, you'll agree that -- and, of course, you were not around in 1997 dealing with this issue. That's fair to say, right?

MR. ZOUBEK: Correct.

MR. CHERTOFF: Okay. So -- but you -- based on what even the Attorney General had acknowledged to you finally before the hearing, it was clear that he was aware, at least some time in 1997 that there was some kind of statistical analysis ongoing somewhere in Department of Law and Public Safety. Is that fair to say?

MR. ZOUBEK: I don't agree with that based upon what -- my knowledge as to what he said to me, is that there was a general discussion with respect to consents. He didn't go through that there was a statistical analysis, Mr. Chertoff. I -- I respectfully suggest -- I can only answer what -- what I knew my understand at the time and for -- to ask me to go into the mind of the Attorney General I don't think is appropriate.

MR. CHERTOFF: Well, I don't want you to go into his mind. I want -- let's go to Page 220 of the deposition.

"Did you, at that point, question in your own mind exactly the degree in which the Attorney General had an understanding of what the documents were and the existence of the documents and whether he was being completely forthcoming with you concerning his own role?"

Answer: "I think prior to the hearings, his statements to me were, I heard about the numbers. They might not have been good numbers, but in context now, but that the advice he had received was that it wasn't right for -- " and -- and then you go onto another answer.

But you'll agree with me based on that answer that he had told you prior to the hearings that he had heard about numbers, right?

MR. ZOUBEK: Well, he had heard about numbers. You said -- and I don't want to get into a debate here. There's statistical analysis -- what he said to me, there was no presentation of a statistical analysis. Given the testimony as it relates to -- I don't know. I wasn't there on May 20th, 1997 as to whether statistics were discussed or other -- all I'm saying is based upon what the Attorney General told to me, I stand by my deposition testimony and other than that, I wasn't there on May 20th, 1997.

MR. CHERTOFF: We -- we understand. My only question is this, you'd agree with me that if -- that you, at least, knew going in that num -- that the Attorney General was aware that numbers had been compiled by the State Police in 1997, which would be, of course, before April of 1998, right? Because the Attorney General essentially acknowledged that to you?

MR. ZOUBEK: Well, he said -- he said what he said, whether he's aware of -- of some numbers generally, but that's the -- that's the limit of what and my discussions with him were.

MR. CHERTOFF: And you knew from Fahy and/or Rover, that they believed and they recalled numbers having been discussed, right?

MR. ZOUBEK: They said consents were discussed and the knowledge that they were and the State Police concerns, but again, whether or not there was a presentation of statistics and exact numbers, I -- I've given you the limit of what I recall from those discussions.

MR. CHERTOFF: Now, then -- and you weren't there, of course, but -- but then when Mr. Verniero answered Senator Lynch's question, he answers this way.

"If there was an analysis going on at that point in time, somewhere in the Department of Law and Public Safety I was not aware of it in July of 1996, no."

Did it strike you as odd that he answered a question about events occurring prior to April 1998, by answering saying, "I wasn't aware of it in July of 1996."?

MR. ZOUBEK: I -- I stand by my deposition testimony which is, I didn't catch that at the time.

MR. CHERTOFF: As you look back on it, does it strike you as odd?

MR. ZOUBEK: I don't think I'm here to opine as to what's odd or not.

MR. ROBERTSON: Mr. Chertoff, in -- in fairness, isn't July of '96 the time at which he had became Attorney General?

MR. CHERTOFF: Yes.

MR. ROBERTSON: And --

MR. CHERTOFF: Yes.

MR. ROBERTSON: -- wasn't there a line of questioning about what he knew at that time?

MR. CHERTOFF: I think actually it was a line of questioning at a different point in time.

MR. ROBERTSON: Oh, okay.

MR. CHERTOFF: And a different part of the hearing.

MR. ROBERTSON: No, I'm talking -- oh, at a different part of the hearing --

MR. CHERTOFF: Different part of the hearing.

MR. ROBERTSON: -- subsequent to this?

MR. CHERTOFF: Yeah. Subsequent or earlier. Now, did you have a conversation with -- and again, I want to just make sure we have everything we can -- we can glean from what happened in your conversations with him in anticipation of the hearing. Did there come a point in time you had a conversation with Mr. Verniero before the hearing that there had been a conversation -- did you -- let me withdraw the question.

Did you pre -- did you, in fact, present to him at a point in time what you had heard from Fahy and Rover that there had been a conversation comparing the Maryland numbers with the New Jersey numbers relating to consent to search?

MR. ZOUBEK: No, but I -- I really do believe that I -- I've given you the -- my best memory of those -- those conversations.

MR. CHERTOFF: Well, let me go back into the deposition. We're here at Page --

MR. ZOUBEK: Is it -- let me -- let me make clear, what -- it -- what -- you were talking about the period of time of preparing for the hearings?

MR. CHERTOFF: Right up to the moment that you both walked into this hearing, at any point did you simply say to him, that based on what you had learned he had been a meeting where there had been a comparison comparing -- a conversation comparing the Maryland numbers and the New Jersey numbers relating to consent to search? Did you present him with that?

MR. ZOUBEK: I believe what I had said to him was there was a meeting that I had heard about in which there was the discussion of consents. I don't hear -- recall whether I said Maryland or not. If I said something at my deposition, you may refresh my recollection.

MR. CHERTOFF: I will. Page 210.

"Now, in connection then at the same time, there's a hearing scheduled for April 26 before the Judiciary Committee, correct?"

"Correct."

"And you're preparing Mr. Verniero for his testimony, right?"

"I was assisting him in preparation.

And the question arises about whether he's going to be asked about when this information about statistics and consent to search data was first conveyed to him, right?"

"THE WITNESS: Right"

"And based upon -- yes. Based upon what I had heard from others, I had focused on that issue with him."

"And what was his initial answer to that question? Was his initial answer that he hadn't heard anything about this?"

"No. I talked about the initial answer which was on March 16th but in terms of the preparation, it was that the documents -- I mean -- and/or the statistics that he ever saw on the issue were always presented to him in the context. At the same time he was being told by State Police that racial profiling was not a problem."

Question: "But at that point, I take it he did not deny that there had been a conversation comparing the Maryland numbers and the New Jersey numbers relating to consent to search."

"THE WITNESS: He did not. He did not deny that and responded as I said, if there was discussion of statistics this was my reaction to the statistics." MR. CHERTOFF: Is that accurate?

MR. ZOUBEK: Yes, but it -- I said, "If there was a discussion of statistics . . ." That's the way he had put it to me and -- and that's the way I think I put it in my deposition. He did not say to me that he recalled specifically the Maryland comparison. It was if there was a discussion of statistics it was in the following context.

MR. CHERTOFF: Now, what happened to the Troop D Audit?

MR. ZOUBEK: I received a -- a recommendation from the State Police sometime in June that the audit ha reached a point in time in which there were no additional significant productive results occurring in the audit and I received the recommendation from Lieutenant Colonel Fedorko when I was Acting Attorney General, which would have been some time in June that the -- the purposes of the audit which was to find race based discrepancies, had been accomplished, that they -- because of the length of the time between the period they were looking at, which was the first four months of 1998 to now June of 1999, that they weren't receiving sufficient results and that the recommendation I received from Lieutenant Colonel Fedorko was that they didn't believe that it would be fruitful to continue with that and I authorized him not to continue with that but to complete whatever Internal Affairs' reviews had to be completed and to complete what he needed to finish with it.

MR. CHERTOFF: Well, did he give you some kind of a written explanation of why -- what it meant to say that the Troop D Audit was no longer being fruitful?

MR. ZOUBEK: Well, I had -- I had a discussion -- I think I had some discussions with either him or Lieutenant Colonel Fedorko that what was happening is when they were getting -- I think it was to -- I can't remember if it was in the context of the phase where they had completed Phase I and Phase II of, I think, of all of -- of the barracks, but as they were getting into the random phase three, they were finding that they were not getting sufficient responses because of the lapse of -- of time and that most of the discrepancies were not race based that they were finding.

MR. CHERTOFF: So, he told you that they had actually, with respect to each of the three barracks, done a Phase III analysis and were not getting --

MR. ZOUBEK: No, they had begun --

MR. CHERTOFF: -- sufficient responses --

MR. ZOUBEK: -- they had begun -- he had said that they had completed Phase I and Phase II and they had -- wherever they were at that point in time, which I believe was -- was Phase III, was they were not getting productive results and I think that is consistent with the -- with the testimony that Lieutenant Sachetti is given.

MR. CHERTOFF: So, he told you the audit was complete then in -- in 19 --

MR. ZOUBEK: No, he told me that it reached a point where what they had done -- we had previously testified -- I previously testified about the need to increase the number of people working on that audit. So, we increased the number of people working on that audit. There was an ability to complete portions of the audit and now they had reached a point in time in which they didn't find that the audit was being productive in an investigative sense.

MR. CHERTOFF: So, did you say, let's write up a final report?

MR. ZOUBEK: I've told them to complete whatever referrals there would be and -- and to go forward with whatever they need to do with respect to the administrative inquiries.

MR. CHERTOFF: Well, was a final report prepared?

MR. ZOUBEK: Well, at -- at that point in time, my focus on was make all the Internal Affairs referrals that need to be made, and then move forward with whatever you would move forward with internally on the State Police. As I emphasized before, there was race based discrepancies and there were some -- some other violations that were identified and my presumption was that Lieutenant Colonel Fedorko would move forward with those and -- and I don't -- I do not typically receive -- I would not receive the "final report" on administrative violations.

MR. CHERTOFF: Sir, in oral conversation, Colonel Fedorko -- there's nothing more they can do and you basically tell them to wrap it up. Is that fair to say?

MR. ZOUBEK: No. I think -- I -- he reviewed with me the problems that were -- they were obtaining at that point in time, and I would note that Lieutenant Sachetti testified in his deposition that he met with Lieutenant Colonel Fedorko on April 19th and told him that it was going to take a year to a year and a half from that point in time to complete the audit, and now I'm learning for the first time ever in this -- the course of these proceedings that -- that the additional 30 people that were assigned were at some point in time -- it's news -- the first time I'm learning this -- were -- were sitting around because they didn't have things to do on the -- on the audit.

So, I would presume that that provided the basis for Lieutenant Colonel Fedorko's recommendation to me to move those troopers to some -- some sort of productive use.

MR. CHERTOFF: Well, I'm puzzled because didn't you, in fact, make specific -- a specific reference in the interim report to this ongoing Troop D falsification audit as a significant factor in the way you were looking at the State Police?

MR. ZOUBEK: Absolutely, but I had no idea that on April 19th, Lieutenant Sachetti had met with Lieutenant Colonel Fedorko and said that it was going to take a year to a year and a half to complete that.

MR. CHERTOFF: Well, when Colonel Fedorko told you there wasn't anything more that he could do, given the fact that you had indicated that this was additional inquiry, examining stops made by troopers that still pending, didn't you feel the need to examine or explore what was left to be done and how it could be expedited?

MR. ZOUBEK: My -- my concern because the original focus that Lieutenant Colonel Dunlop and I had was to ensure whatever Internal Affairs investigations need to be done would be -- would be established and done and that was what was -- that was what was focused on. This was staff inspection doing an audit, making referrals over to Internal Affairs and what I wanted to make sure happened was that the Internal Affairs work was completed and then there were referrals over to the Division of Criminal Justice and that occurred during the summer and fall of 1999.

MR. CHERTOFF: All right. So, let's see where we are. It's fair to say that after April 26, 1999 there's no further acts of investigation regarding withholding information by the State Police, correct?

MR. ZOUBEK: I made the determination not to pursue that, when I became Acting Attorney General --

MR. CHERTOFF: So, I --

MR. ZOUBEK: -- which was May 15th.

MR. CHERTOFF: -- so, I am correct that no further acts or undertaking of investigation regarding withholding of data after you walked out of the hearing room with the Attorney General on April 26, correct?

MR. ZOUBEK: Ultimately, that's correct.

MR. CHERTOFF: Ultimately and not ultimately it's correct, not -- I mean -- I just want a straight answer on this.

MR. ZOUBEK: Well, Mr. Chertoff, I don't think it's fair to --

MR. CHERTOFF: Nothing --

MR. ZOUBEK: -- to give the impression that I walked out of this room and made a decision as I was driving back to the Hughes Justice Complex.

MR. CHERTOFF: My question is simply was anything else ever done afterwards?

MR. ZOUBEK: And -- well, my answer was no.

MR. CHERTOFF: Okay. Now then, you also have, sometime in May or June, the Troop D Audit which is mentioned in the report, that also lapses, correct?

MR. ZOUBEK: It was terminated as of June 9th, 1999 and then subsequent referrals were made.

MR. CHERTOFF: And then with respect to those referrals over to Criminal Justice, none of those ever resulted in an indictment, correct?

MR. ZOUBEK: That's my understanding.

MR. CHERTOFF: And those come back, right?

MR. ZOUBEK: Correct.

MR. CHERTOFF: And do you know whatever happened to the discipline with respect to those troopers and what happened with that?

MR. ZOUBEK: I think there has been -- there is -- I don't know if -- there are some charges that have -- may have been brought. I don't know if they've ultimately been resolved.

MR. CHERTOFF: But that wasn't followed up by --

MR. ZOUBEK: What wasn't followed up by --

MR. CHERTOFF: I mean, you don't -- you can't tell -- you didn't actually want to report or any follow-up information concerning tracking what happened with respect to those troopers, correct?

MR. ZOUBEK: No, I was -- I was happy to remove one hat that I had which was as the head of the State Police Review Team. When we established the Office of State Police Affairs, that was -- assignment was brought over to the State Police Affairs and to the new Superintendent.

MR. CHERTOFF: By the way, in the interim report to the extent there is reference to data, actual or statistical data based on arrests and stops, things of that sort, isn't that really -- that's all the State Police data that was either in Mr. Rover's file that you subsequently received from the State Police when you asked for more information, correct?

MR. ZOUBEK: Yes -- the data --

MR. CHERTOFF: In other words --

MR. ZOUBEK: -- data on the New Jersey State Police was --

MR. CHERTOFF: Right.

MR. ZOUBEK: -- from the New Jersey State Police.

MR. CHERTOFF: In other words, between the time your Review Team was inaugurated in February and the time your report was issued on April 20th, the Review Team, itself, didn't know statistical analysis or compilations? It simply took what the State Police had done and put it into this document, right?

MR. ZOUBEK: Yes. Someone was assigned to see if statistical -- additional statistical analysis could be done and given the expedited nature of the report, we relied on the documents that have been provided to the State Police Review Team.

MR. CHERTOFF: And so, specifically, as it relates to consent to searches, that's really all the material that Gilbert compiled in 1996, 1997 and 1998, right?

MR. ZOUBEK: No, because Gilbert had those documents, but he did not compile the '97 and '98 monthly summaries. Those went through the regular chain in command of the State Police and he -- they had them in his possession.

MR. CHERTOFF: By the way, did anybody ever tell you they had specifically asked for '97 or '98 consent to search data?

MR. ZOUBEK: Dave Hespe had told me that there was a request for recent data. I don't know if it was broken down to '97 and '98.

MR. CHERTOFF: And, also, just to be clear in your -- in your interim report, to the extent you have consent data from '94 and '96, that would come from that undated document we've been putting up on the -- on the television screen, correct?

MR. ZOUBEK: That or whatever underlying documents relate to that.

MR. CHERTOFF: Now, let me ask you as it finally as it relates to consent -- the consent to search issue. Either in going over the report with the Attorney General or in preparation for the hearings, did you discuss with the Attorney General the statement in the final report that said, "Certain consent to search data provided to us are a sufficient cause for concern as to warrant careful case by case review to be undertaken by the Superintendent."

MR. ZOUBEK: I did not -- he read the interim report. I did not have a specific discussion with him on that.

MR. CHERTOFF: Do you actually agree with that statement?

MR. ZOUBEK: Yes.

MR. CHERTOFF: So, in other words, your belief is that the consent to search data that was provided as significant in and of itself to warrant a case by case review of the underlying cases, right?

MR. ZOUBEK: Yes.

MR. CHERTOFF: Now, did you have any discussion with the Attorney General about his view of consent to search data as it relates to what he had been told in the past about consent to search?

MR. ZOUBEK: Only to the extent to which he informed me that he had -- was told that it was not relevant or determinative of the issue of whether racial profiling was occurring.

MR. CHERTOFF: Did he tell you when you talked to him in preparation in a meeting that he had received a memo from Deputy Attorney General Rover exclusively discussing the significance of the consent to search numbers in New Jersey -- withdrawn. That he received a memo for Deputy Attorney General Rover specifically discussing the significance of consent to search information as it related to Maryland?

MR. ZOUBEK: No. I don't recall that.

MR. CHERTOFF: Did he tell you that in July of 1997 he had received documents relating to the number of stops on the -- in Moorestown and in the Cranbury Stations in '95 and '96?

MR. ZOUBEK: No, that was not discussed.

MR. CHERTOFF: By the way, did the Sachetti audit data that was generated in February or later -- February '99 or later by Lieutenant Sachetti ever find its way into the interim report?

MR. ZOUBEK: Yes and no.

MR. CHERTOFF: Show me where the answer -- show me where "yes" --

MR. ZOUBEK: It had an -- when I received it on February 10th as the ultimate head of the State Police Review Team what I saw with respect to stops had an impact on the -- what we -- what we relied on was the -- it had squadded individual trooper information. What we relied on was the -- the monthly summaries. So, the receipt of that data on February 10th had an impact on Ms. Stone and an impact on myself. The data that's included in the report in the charts is out of what was received on March 15th.

MR. CHERTOFF: The -- my questions is, is the actual data -- is the actual data provided by the Lieutenant Sachetti in the report in any place?

MR. ZOUBEK: No, because it was broken down by trooper and by squad.

MR. CHERTOFF: So, the answer's -- it's not in the report?

MR. ZOUBEK: No, the exact numbers are not in the report.

MR. CHERTOFF: There were station totals in the Sachetti document, correct?

MR. ZOUBEK: Yes.

MR. CHERTOFF: Are those in the report?

MR. ZOUBEK: No, because they covered a similar period of time to the monthly compilations and we relied on the monthly compilations.

MR. CHERTOFF: So, they're not in the report?

MR. ZOUBEK: That's what I -- I said that.

MR. CHERTOFF: By the way, was there a power point presentation presented to you shortly before the report was issued on April 20th concern -- containing some additional information?

MR. ZOUBEK: I believe it was the morning of April 16th.

MR. CHERTOFF: And was that included in the report?

MR. ZOUBEK: Some of it was footnoted. That presentation I received from the State Police on April 16th was basically, we're making this presentation because we believe that racial profiling does not occur. I rejected some of the analysis and I included some of their data.

MR. CHERTOFF: Was there a request to -- by them to delay the report so as to allow a fuller analysis in the numbers they provided?

MR. ZOUBEK: No, but I would have made -- if -- if I thought it was appropriate, I would have made a determination to -- to delay.

MR. CHERTOFF: Would you agree with me -- well, you've since looked at the July -- at the Moorestown data from 1996 that's included in the July 29th, 1997 memo that went to the Attorney General that says, 62 percent of the people searched or asked for consent to search were minorities. You'd agree with me that that is a significant number that would have warranted case by case review as you recommended in the interim report, right?

MR. ZOUBEK: It's consistent with your approach in the interim report, yes.

MR. CHERTOFF: And that was as true in 1997 as is was true -- as true in 1999, correct?

MR. ZOUBEK: I think the conceptual position would be the same.

MR. CHERTOFF: Now, in 1999 at the same time or rather the day before the report was issued, there was an indictment of Troopers Hogan and Kenna for falsification of documents, correct?

MR. ZOUBEK: Correct.

MR. CHERTOFF: And was there a meeting that you had in -- earlier in the year with the Attorney General concerning the timing of that indictment?

MR. ZOUBEK: Yes.

MR. CHERTOFF: Who was present at the meeting?

MR. ZOUBEK: It was myself, the Attorney General, Debra Stone and James Gerrow.

MR. CHERTOFF: And what was the discussion?

MR. ZOUBEK: The Attorney General had asked for -- my calendar reflects, I believe, that the -- the meeting which was on March 10th says, 7A or status of 7A and it was a meeting to discuss the status, as I understood it, of the investigation relating to Troopers Hogan and Kenna.

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

MR. ZOUBEK: The meeting started off with a request from the Attorney General to have an update as to the -- to the status of those -- those cases or those investigations, I should say. I recall that Jim Gerrow advised the Attorney General as to the status as to the shooting portion of the investigations and that it would be a number of months before that could be completed because the -- the case had become quite complicated once we had brought in Dr. Henry Lee and there being a request to have a reconstruction or re-enactment out on the -- the Turnpike.

MR. CHERTOFF: And so what was said next?

MR. ZOUBEK: The Attorney General then asked if he was aware of the falsification portion of the case and that the falsification portion of the case had not been put into the shooting Grand Jury, that had -- the shooting Grand Jury -- the record reflects in that case it had already met beginning sometime, I think, in December or November, December or January. No portion of that case had gone in and he asked whether or not the falsification investigation was completed at that point.

MR. CHERTOFF: And what was he told?

MR. ZOUBEK: He was told that the falsification investigation with respect to Hogan and Kenna was completed --

MR. CHERTOFF: But not --

MR. ZOUBEK: -- at that time.

MR. CHERTOFF: -- but not with respect to any other troopers?

MR. ZOUBEK: We were focusing on Hogan and -- on Kenna at -- at that time. I don't know if there was a Troop D discussion at that time.

MR. CHERTOFF: And when the Attorney General was told that the falsification case against Hogan and Kenna was complete, what did he say?

MR. ZOUBEK: He said, "Can we move the falsification portion of the case."

MR. CHERTOFF: Did he explain why he wanted to do that?

MR. ZOUBEK: He said that the anniversary of the shooting was coming up, that there was a substantial amount of focus and pressure with respect t that upcoming anniversary and that there was substantial criticism of the length of time the investigation's -- that Mr. Gerrow was involved in, was taking.

MR. CHERTOFF: And so, what was said in response to that?

MR. ZOUBEK: Well, what we discussed with the Attorney General was what the -- what the options were at that point in time and what the -- the risks of moving publicly a falsification case.

MR. CHERTOFF: And what were those risks?

MR. ZOUBEK: We identified that the primary concern would be because there was a pending Grand Jury on the shooting, that we would have to be concerned as it relates to any potential taint to that first Grand Jury by any public action that may be taken in the falsification case.

MR. CHERTOFF: And --

MR. ZOUBEK: We then explained to the Attorney General that given the amount of publicity with respect to these investigations, that those risks were substantial in -- in those cases, under the circumstances and we reviewed with him that what would have to occur is something referred to as a "Brook-Murphy Hearing" in which the first Grand Jury, the shooting Grand Jury, all of them would be interviewed by the DAG under the supervision of the -- the Grand Jury judge to ensure that there haven't been any improper taint. If there was improper taint by the release of a falsification case, what could happen is you would -- you could lose that -- that Grand Jury and have to re-present to another Grand Jury.

MR. CHERTOFF: And what did the Attorney General say in response to you -- you -- people in the room having identified this problem?

MR. ZOUBEK: Well, I -- we had a discussion of -- of the -- what had happened so far as it relates to the steps that have been taken on Brook-Murphy with respect to the first Grand Jury and it was emphasized to him that significant steps have been made to instruct the Grand Jurors not to view what was in the -- what was in the press. We then had a -- there was then a discussion in which the Attorney General identified that -- that he believed it was important to move forward with the falsification case to the Grand Jury at this time before the anniversary of the shooting.

MR. CHERTOFF: Did the other people in the room, besides the Attorney General, ultimately agree with the decision to move -- take the risk and move forward with this falsification indictment?

MR. ZOUBEK: Well, I think what happened in that meeting, Mr. Chertoff, was essentially we were providing advice to the Attorney General. Debra Stone, Jim Gerrow and myself identified the risks that were going to be -- would come with, if you will, indicting that -- having that case presented to the Grand Jury before the shooting Grand Jury voted and we identified that there were some -- I think I used the word "substantial" risks as it relates to -- to taking that approach. They could be cured by an appropriate Brook-Murphy hearing and that was the advice that he was given at the time.

MR. CHERTOFF: And, by the way, a Brook-Murphy hearing would, you know, be somewhat time consuming in require, among other things, a judge to participate in that hearing, correct?

MR. ZOUBEK: Yes, particularly under the circumstances of -- of this case and the pub -- the high publicity that it was receiving.

MR. CHERTOFF: And the Attorney General made what decision?

MR. ZOUBEK: The Attorney General instructed us to move forward with the falsification presentation prior to the anniversary of the shooting, which was April 23rd that year.

MR. CHERTOFF: And when you and the other people who had met with the Attorney General left the room, did you have a discussion amongst yourself concerning the meeting?

MR. ZOUBEK: Yes.

MR. CHERTOFF: What was the discussion?

MR. ZOUBEK: Well, I met with Debra Stone and Jim Gerrow and sat down and said, look, we all have to be absolutely comfortable with this, given the risks that are entailed here and I want to hear from anyone if we're not comfortable with this approach.

MR. CHERTOFF: And what was said?

MR. ZOUBEK: Well, it was the discussion that there were risks that were being taken by this -- this approach, but there was no further objection raised to the Attorney General.

SENATOR GORMLEY: What we're going to do is -- oh, excuse me -- what we're going to do is we'll ask the witness -- the balance of the test -- questions will -- coming from the Members of the Committee, we ask that the witness be available for Monday for questions from Members of the Committee and possible additional questions from Mr. Chertoff and there are certain matters we -- Scott -- we want to Scott to hear -- the record right now.

MR. WEBER: Just wanted to make part of the official record of these proceedings the following documents: the certification of Paul H. Zoubek dated February 13, 2001, as one of the custodians for the record; a letter dated January 30, 2001 from Robert E. Fabricant, then Chief Counsel to Governor Whitman as custodian of the record; the certification of Howard E. Butts dated January 30, 2001, as a custodian of the records; the certification of Debra Stone dated February 13, 2001, as a custodian of the records; March 20, 2001 submission by Former Attorney General Robert Del Tufo, a letter as well as a binder containing documents and copies of articles; and a March 26, 2001 letter from Robert Mintz's attorney to Justice Peter Verniero as well as a summary and analysis of deposition and interview testimony from the Senate Judiciary Committee's racial profiling investigations, copies of which have been provided to all the Committee Members.

SENATOR GORMLEY: Okay. One -- one additional matter that I discussed earlier. Senator Lynch and I were going to do a review of the four-way on the nominee to be Treasurer. We have been informed and that the review of that nominee at the current time they're gathering additional information.

The people who are doing the review or investigation, if you will, are conducting it or were conducting it recently and consequently instead of pulling them in from those duties, we said it's obviously more expeditious for them to complete their review, the gathering of that additional information. So, they're in the midst of gathering that information in terms of the nominee for Treasurer. So, that's still ongoing.

We will convene tomorrow at 10 o'clock.



(Off the Record)

* * *

C E R T I F I C A T I O N



We, PAT KONTURA, TAMMY DiRISI, KAREN HARTMAN AND JOY K. BRENNAN, the assigned transcribers, do hereby certify the foregoing transcript of proceedings on tape numbers 1 through 7 in their entirety, 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.



_______________________________

PAT KONTURA, AOC #234



_______________________________

TAMMY DiRISI AOC #518



_______________________________

KAREN HARTMAN AOC #261



_______________________________

JOY K. BRENNAN AOC #505



J&J COURT TRANSCRIBERS, INC.

Date:__________________________